Eldriedge v. Hoefer

CourtSupreme Court of Oregon
Citation52 Or. 241,96 P. 1105
PartiesELDRIEDGE v. HOEFER et al.
Decision Date11 August 1908

96 P. 1105

52 Or. 241

HOEFER et al.

Supreme Court of Oregon

August 11, 1908

On petition to recall mandate. Denied.

For former opinions, see 93 P. 246, 94 P. 563. [96 P. 1106.]

[52 Or. 242] Geo. G. Bingham and P.H. D'Arcy, for appellants.

T.G. Hailey, A.M. Cannon, L.K. Adams, John A. Carson, and S.T. Richardson, for respondent.

[52 Or. 260] EAKIN, J.

This is a suit to redeem real estate from a mortgagee in possession, decided by this court on January 7, 1908. 93 P. 246. Upon motion of defendant the decree was modified on March 24, 1908. 94 P. 563. A petition by plaintiff for rehearing was filed April 6, 1908, and denied April 28, 1908. The mandate was issued April 29, 1908, and this petition filed July 1, 1908, asking that the mandate be recalled and the cause remanded to the lower court to determine the amount of the rents for which defendants should account during the period of their possession. It should be a sufficient answer to this motion to say that it asks exactly the same relief sought by plaintiff's motion filed April 6, 1908, and denied April 28, 1908. This petition is accompanied by several affidavits as to the reasonable rental value during said period. Plaintiff alleges in his complaint that the property was rented by him to Goffin in October, 1895, for a term of 10 years at a rental of one-third of the crop, and that by agreement the tenants, by direction of the plaintiff, paid to Hoefer & Zorn each year until and including the year 1904 the rental stipulated in the lease, and that by such agreement Hoefer & Zorn received said rental in full payment of interest and taxes during said time. This allegation was for the purpose of showing that plaintiff should be permitted to redeem without paying interest on the debt. This allegation is denied by the answer, and the defendants affirmatively allege that they paid certain taxes, setting out the amount paid for each year, and that they received the rental for the years 1896 to 1904, inclusive, from said Goffin, setting out the amounts so received for each year--both of which allegations plaintiff denies in his reply on information [52 Or. 261] and belief. This was a material issue even from plaintiff's theory of the case. If he is permitted to redeem, he must pay interest, unless he establishes that defendants were to accept the rent in payment of interest and taxes, and, if he fail to establish such agreement, then the amount of the rental must be charged...

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