Edgar v. Golden

• Decision Date: 19 February 1900
• Citation: 60 P. 2,36 Or. 448
• Parties: EDGAR v. GOLDEN. [1]
• Court: Oregon Supreme Court

60 P. 2

36 Or. 448

EDGAR v. GOLDEN. ^[1]

Supreme Court of Oregon

February 19, 1900

Appeal from circuit court, Marion county; H.H. Hewitt, Judge.

Action by David W. Edgar against T.L. Golden. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a suit to foreclose a mortgage executed by the defendant June 19, 1893, upon the south half of the donation land claim of Moses Edgar and wife, situate in township 9 S., range 2 W., of the Willamette meridian, in Marion county, Or., to secure the payment of two promissory notes, for $1,000 each payable two years after date, with interest at 8 per cent per annum, given by Golden to the plaintiff, February 25 1893, for the purchase price of said premises purchased by him on that date from Edgar. The defenses interposed to the foreclosure of the mortgage are: (1) That it was given to secure the purchase price of the land covered thereby; that the plaintiff conveyed the land by a warranty deed, and that the title thereto has been brought in question, an action having been commenced since the filing of the complaint herein by Elma Simmons against the defendant to recover possession of an undivided one-ninth thereof, and hence it is claimed that he ought not to be called upon to pay the notes until the title is quieted. (2) That the mortgage was given in consideration of the compromise of a suit by Edgar against Golden to set aside the deed, upon the ground that Edgar at the time of its execution was mentally incompetent to make such a conveyance, whereby it was agreed that said suit should be dismissed, and that the moneys secured by said mortgage should not be or become due, nor the mortgage be foreclosed, until it had been established, in an appropriate suit or proceeding, that plaintiff had a good and unimpeachable title to the premises. It is further alleged that the defendant, after executing the mortgage, permitted plaintiff's attorney to take it upon the agreement that, if it was satisfactory to plaintiff, he would then execute an instrument in writing, setting forth the agreement touching the time when said notes should fall due, and said mortgage be subject to foreclosure, but that plaintiff wrongfully obtained possession of it, had it recorded, and thereafter failed and neglected to deliver said writing, and that defendant did not deliver said mortgage, nor intend to deliver the same, until plaintiff had executed and delivered said written agreement.

J.A. Carson, for appellant.

Tilmon Ford, for respondent.

WOLVERTON, C.J. (after stating the facts).

There is scarcely a dispute as to the delivery of the mortgage. It was written by one of the attorneys appearing for the defendant in the compromised suit, signed and acknowledged by the defendant, witnessed by such attorney, together with the plaintiff's attorney therein, and delivered to the latter, who delivered the same to Edgar. The delivery was not made conditional or dependent upon the execution of any agreement respecting the time such notes should fall due or the mortgage be foreclosed, but was absolute, and...