PIPES
J.
This is
a suit to foreclose a mortgage on certain real property
situated in Washington county, Or. It appears that in July
1908, John Nellsen, unmarried, and Simon
Nellsen and Minnie Nellsen, his wife, were the owners in fee
simple of the property
involved in this suit. While they were such owners, and on
July 3, 1908, they executed to Joseph Nellsen, of Portland
Or., their joint and several promissory note for the sum of
$3,000, payable to his order, with interest at the rate of 6
per cent. per annum. At the same time, and to secure the said
note, the makers executed and delivered to Joseph Nellsen the
mortgage which the appellant seeks here to foreclose. It is
alleged, further, that on the 3d day of July, 1912, Joseph
Nellsen, the holder of the said note and mortgage, in
consideration of the payment to him of $3,180, being the
principal and interest to that date, set over and assigned
the note and mortgage to the appellant by indorsement of the
said note to her. It appears, also, from the complaint that
Joseph Nellsen, by mistake and inadvertence, signed a release
of the said mortgage on the 25th day of April, 1917, and that
the mistake was discovered by Joseph Nellsen, and he again
executed an instrument, duly assigning the note and mortgage
to plaintiff, and rescinded and revoked the apparent
satisfaction of the mortgage previously made on the 25th day
of April, 1917. It is charged that the note and mortgage have
not been paid, except the sum of $320, paid by E. M. Hartmus
in August, 1912, and the prayer is for the balance due
$2,680, and for a decree of foreclosure.
It
appears without controversy that the Nellsens, who owned the
property at the time the mortgage was executed, on the 22d
day of April, 1910, sold and conveyed the land described in
the mortgage to George B. Hartmus, subject to the mortgage of
$3,000, and that the said George B. Hartmus, by
the terms of the instrument, assumed to pay and discharge the
mortgage. George B. Hartmus died on the 12th day of April,
1911, leaving a will, which was duly filed for probate in the
county court of Multnomah county, Or. By the terms of the
will, the testator gave and bequeathed to Alice Hartmus
Ellis, his daughter and the appellant here, and to Edwin
Milton Hartmus and William Eugene Hartmus, sons, each the sum
of $100, and then devised and bequeathed all of the rest and
residue of his estate to the appellant, including the real
property described in the mortgage.
About
the 22d day of December, 1911, the appellant conveyed, by
warranty deed, to her brother Edwin Milton Hartmus, and to
Lily Hartmus, his wife, respondent, all of the said property.
It appears from the deed in evidence that the grantees in the
said deed assumed to pay the said mortgage. The appellant
offered herself as a witness in the cause, and called in her
behalf Joseph Nellsen, the mortgagee. It is not disputed that
on about the 3d day of July, 1912, when the note and mortgage
became due, or a few days afterwards, the appellant here paid
to Joseph Nellsen, the mortgagee, the sum of $3,180. Whether
that payment was made as the purchase price of the mortgage,
or whether it was a payment of the note and mortgage, is the
question here. The appellant relates what occurred between
her and Joseph Nellsen, the mortgagee, at the time the
payment was made. She testified that her brother William
Eugene Hartmus was present during the negotiations; that he
was assisting her in the transaction; and that she relied
upon him to see that the proper papers were executed. Her
statement of the circumstances is substantially all disclosed
in the following testimony:
"Q. What was your understanding on payment
of this money?
"Mr. Lewis: Object to the form of the question. Tell
what was done; not what the understanding was.
"A. Mr. Nellsen came to the store; I was employed by
Olds, Wortman & King, and I went out in the hall, and he
said, 'I am Mr. Nellsen;' and he said, 'I came
for my money' I don't just remember the date the
mortgage called for or the interest; and he said he came for
his money, and I said, 'Is your money due now on that
place?' And he said, 'Yes; it is.' I believe he
said, 'It is due to-day' I don't remember; but,
at any rate, he came at that time for the money, and I said,
'Will you extend the mortgage?' And he said, 'No;
I want my money; I would rather have my money.' And I
said, 'Well, we haven't the money; we are not ready
to pay the money, but I will see what can be done,'
because I did not wish a foreclosure of the mortgage. He said
he wanted his money, and I didn't want a foreclosure of
the mortgage to take place, because the place was of far more
value than the mortgage, of course; so I made an appointment
with him to come again, and send me word, and my brother, who
was at that time working in the Oregonian office, and I made
a date with him, and Mr. Hartmus and Mr. Nellsen came back to
the store; and I had got most of the money to take up the
mortgage, being as Mr. Nellsen would not extend the time upon
the place and he wanted his money. He said he wouldn't
extend the time on the mortgage. * * *
"Court: At the time you paid this money, just tell what
took place at that time. A. What took place? The money was
paid, and the note was signed and transferred to me. The
money was paid, because he didn't wish to extend the
time. I had paid the interest up to that time. I was in no
condition to pay it--
"Court: Tell the conversation, if you had any, at the
time you actually paid the money. A. I don't recollect
there was very much conversation, excepting that he asked for
the money. There was no
conversation that I remember. I did not wish the mortgage
foreclosed--
"Mr. Bailey: It doesn't make any difference what he
wished.
"A. No; I don't remember any conversation, excepting
I made a date for him to come there, and I would get him the
money and take over the mortgage to save a foreclosure on the
place.
"Mr. Bailey: You didn't tell him so?
"A. I told him I would take the mortgage.
"Q. Take the mortgage? A. Yes, sir; that I would take it
over, or it would be foreclosed, because he wanted the money
and there was no other way to get it, that I knew of. * * *
"Q. Were you present at the time this note was executed
and handed over to you? A. Yes, sir.
"Q. And at the same time this paper was executed and
handed over to you? (Indicating.) A. I believe my brother had
the deed and all of the papers, excepting that note; my
memory is not clear as to that. I remember about the note
clearly, but as to this I don't remember about it. I
presume it was all fixed up properly. * * *
"Q. Who was present at the time this money was paid over
to Mr. Nellsen? State what date. A. Mr. Eugene Hartmus and
myself.
"Q. Mr. Eugene Hartmus is your brother? A. Yes, sir.
"Q. This is Mr. Hartmus sitting here? (Indicating.) A.
Yes, sir. * * *
"Q. Do you know whether that satisfaction of the
mortgage was made on the date the money was turned over? A.
The note was signed on the day it was paid over.
"Q. Don't you know that that satisfaction of the
mortgage was made on the date the money was turned over? A. I presume it was, because my brother was there
attending to it, and he would probably fix it all right; that
he saw that it was. * * *
"Q. And wasn't the satisfaction of the mortgage also
turned over to him at that time? A. It probably was. I
don't remember about that. He had the papers belonging to
my other brother; he was taking care of those papers. * * *
"Q. Now, you spoke about your brother, of telling your
brother that you had satisfied--Mr. Nellsen--what did you
mean by that? A. I had the business arrangement so the
mortgage could not be foreclosed; that I had bought the
mortgage. I think I have made that plain several times. He
came and asked for his money."
Mr.
Joseph Nellsen, on behalf of appellant, testified on
cross-examination:
"Q. When you were giving that release, you told Mrs.
Hartmus or Mr. Hayes that you had previously executed a
release and received your pay for the note? A. That was the
first release; yes, sir.
"Q. You told them that? A. Yes, sir.
"Q. And you had given them the money to have it
recorded? A. I don't know how much, but, at any rate, it
was a little to get it recorded.
"Mr. Shepherd: Whom did you give it to? A. To Mr.
Hartmus.
"Q. That was the first release? A. That was the release
at the time I received the money. * * *
"Mr. Shepherd: Did Mrs. Ellis state to you anything
about her object in taking this note over?
"Mr. Bailey: He can testify to what was said.
"Q. What was said? A. She didn't say nothing about
buying the note, or anything like that, that I can remember
of. She didn't say it, but she told me she was paying
this money for her brother; that he was up in the mines, and she was advancing this money for her brother,
and she was expecting that she would get it back after a
while. That is the way she spoke to me. But she didn't
say anything to me that she wanted to buy the note, or
anything of the kind.
"Q. Who spoke to you about buying?
"Mr. Lewis: He has not said anything.
"A. I don't remember at all. I have got to say that
I don't remember. That is too long ago. I don't
remember."
The
defendant offered in evidence an instrument in writing which
is marked Exhibit A. It was produced in court at the trial by
appellant's counsel, and was received in evidence without
objection. It...
