Farmers' & Traders' Nat. Bank v. Gates

• Decision Date: 13 August 1898
• Parties: FARMERS' & TRADERS' NAT. BANK v. GATES et al.
• Court: Oregon Supreme Court

54 P. 205

33 Or. 388

FARMERS' & TRADERS' NAT. BANK v. GATES et al.

Supreme Court of Oregon

August 13, 1898

Appeal from circuit court, Union county; Stephen A. Lowell, Judge.

Action by the Farmers' & Traders' National Bank against Vina A. Gates and others. From decree dismissing action as one of the defendants, plaintiff appeals. Reversed.

J.D. Slater, for appellant.

E.C Bronaugh, Jr., for respondents.

BEAN J.

This is a suit to foreclose a mortgage, and the only question for our consideration is whether the court below erred in dismissing the suit as to the Western & Hawaiian Investment Company Limited. The facts necessary to an understanding of the question, as they appear from the pleadings, are that in July, 1891, the defendant Vina Gates and her husband mortgaged to the plaintiff's assignor certain real property, including lots 1 and 2 in section 29, township 3 S., of range 39 E., and on April 27, 1892, conveyed the same to the defendant Nodine by a deed containing a stipulation wherein he assumed and agreed to pay the mortgage as part of the purchase price. As shown by the public surveys, the premises referred to are bounded on the south by Tule Lake which the plaintiff claims and alleges to be a nonnavigable body of water, but which, according to defendants' allegations, is swamp and overflowed land. At the time of Nodine's purchase from Mrs. Gates, he had, or soon thereafter obtained, a deed from the state for the bed of the lake as swamp land, and on July 14, 1893, mortgaged the portion thereof immediately in front of the premises described in plaintiff's complaint, and below the meander line, to the defendant corporation. The plaintiff thereafter began this suit, to foreclose its mortgage; and assuming that, under the doctrine of riparian rights, its mortgage covers the land to the middle of the lake, made the defendant corporation a party, as a subsequent mortgagee. But the court below held that the question of title thus presented could not be tried in this suit, and dismissed the complaint as to the defendant corporation.

It is familiar doctrine that a suit to foreclose a mortgage is not an appropriate proceeding in which to litigate questions of adverse or paramount title (2 Jones, Mortg. § 1445; San Francisco v. Lawton, 18 Cal. 465; Banning v Bradford, 21 Minn. 308; Summers v. Bromley, 28 Mich. 125); and it is sought to invoke this principle in support of the rulings of the court below. But the question here presented is of an altogether different character. It is practically, as we view it, a controversy between mortgagees claiming under the same...