Ellis v. Abbott

• Decision Date: 10 February 1914
• Citation: 69 Or. 234,138 P. 488
• Parties: ELLIS v. ABBOTT ET UX.
• Court: Oregon Supreme Court

138 P. 488

69 Or. 234

ELLIS v. ABBOTT ET UX.

Supreme Court of Oregon

February 10, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by A. S. Ellis against H. M. Abbott and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action to recover damages for a breach of warranty. S Green and Esther Green on August 30, 1908, gave to the defendant H. M. Abbott their promissory note of $1,000 payable in three years, with interest from date at the rate of 7 per cent. per annum, and to secure the payment thereof they at the same time executed to him a mortgage of real property in Hood River county, Or. Abbott purchased from E Quartermas a tract of land, transferring to him on account thereof the note and mortgage mentioned, and, as further security, Abbott and his wife, the defendant Nettie M Abbott, on September 29, 1908, executed to him a mortgage of the south half of the S.W. 1/4 of the S.E. 1/4 of section 32, in township 4 north, of range 12 east, in Klickitat county, Wash., the title to such real property having been taken in the name of H. M. Abbott. The mortgage last referred to was duly recorded, thereby creating a lien upon the premises. Such conditional transfer expresses a consideration of $1, and the material part of the sealed instrument reads: "This conveyance is intended as a mortgage to secure the payment of the sum of one thousand dollars in accordance with the tenor of a certain promissory note of which the following is a copy, to wit: [Setting forth a duplicate of the negotiable instrument mentioned.]" Abbott and his wife on April 29, 1909, for a valuable consideration, conveyed to the plaintiff, A. S. Ellis, inter alia, the real property above particularly described, covenanting that the premises were free from all incumbrances except a security mortgage for $1.00, which they agreed to pay, and that they would warrant and defend the granted land to the grantee, his heirs and assigns forever against the lawful claims and demands of all persons whomsoever. Ellis and his wife on July 28, 1910, conveyed the real property in Klickitat county to Joseph E. Reynolds, executing to him a deed of general warranty. Thereafter Reynolds commenced an action against Ellis and his wife to recover damages for a breach of the covenant in their deed, in consequence of the lien of the mortgage executed by Abbott and wife, who, though notified of the commencement of the action, refused to become parties thereto or to pay any part of the debt so secured. The defendants in that action filed an answer admitting some of the averments of the complaint and denying others. While the cause was pending, Ellis, who was unable to secure a release of the lien as to the land in the state of Washington without discharging the obligation, paid the debt to Belle Lowe, who had become the owner and holder of the note and mortgage, securing from her an assignment thereof. Thereupon the lien upon the land in Klickitat county was discharged, and Reynolds caused his action to be dismissed. Ellis, having executed to the defendants herein an assignment of the note and a transfer of the mortgage as to the land in Hood River county, tendered the same to them, and demanded a repayment of the sum expended in securing a discharge of the lien upon the land in the state of Washington, and of the costs, disbursements, and outlays incurred in defending the action so brought by Reynolds. The defendants declining to pay any part of the sum so demanded, this action was instituted, the complaint alleging the facts in greater detail than hereinbefore set forth.

The answer denied most of the averments of the complaint, and, for a further defense, alleged that the defendant Nettie M. Abbott joined in executing the deed to the plaintiff solely to bar her inchoate right of dower in the premises, and that the lien upon the land in Klickitat county was not to be enforced unless, upon a foreclosure of the mortgage of the Hood River county land and a sale of the premises, a deficiency occurred.

The cause was tried without a jury, and findings of fact and of law were made in plaintiff's favor, and, a judgment having been given thereon for $1,000, with interest from August 30, 1908, at the rate of 7 per cent. per annum, $150 as reasonable attorney's fees in the Reynolds action, and $50 as disbursements incurred in defense therein, the defendants appeal.

E. R. Ringo, of Salem (Kimball & Ringo, of Portland, on the brief), for appellants. E. J. Brazell, of Portland (Giltner & Sewall, of Portland, on the brief), for respondent.

MOORE, J. (after stating the facts as above).

It is argued that, as the title to the land in Klickitat county Wash., was in the name of H. M. Abbott, his wife joined in executing the deed to the plaintiff only to bar her inchoate right of dower; that, such being the case, she is not bound by any of the covenants contained in the deed, and hence an error was committed in rendering a judgment against her. In support of the legal principles insisted upon, reliance is placed upon section 7101, L. O. L., which was enacted in the year 1854, and reads:...