Knudson v. Knudson

• Decision Date: 19 March 1929
• Citation: 275 P. 663,128 Or. 635
• Parties: KNUDSON v. KNUDSON.
• Court: Oregon Supreme Court

275 P. 663

128 Or. 635

KNUDSON v. KNUDSON.

Supreme Court of Oregon

March 19, 1929

Department 1.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by Theodore Knudson against Ida M. Knudson, formerly Ida M Johnson, in which the defendant filed a counterclaim. Decree for plaintiff, and defendant appeals. Reversed and remanded with instructions.

This is a suit to foreclose a mortgage executed to secure a note for the sum of $175, signed by the defendant. The answer admits the execution of the note and mortgage, and the assignment of the same to the plaintiff; all other allegations of the complaint are denied. An affirmative defense alleges that March 1, 1926, the plaintiff and defendant were husband and wife; that, having encountered matrimonial difficulties, they decided to live apart; that at that time the plaintiff owned the aforementioned note and mortgage, and the two parties effected an agreement whereby they settled all of their property rights. The answer alleges that as a result of this settlement the note and mortgage became satisfied. A second affirmative defense and counterclaim alleges the plaintiff's failure to satisfy the mortgage records after demand, and claims the penalty provided for by section 9891 Or. L. The reply denied the foregoing new matter; the decree was in favor of plaintiff; defendant appealed.

Joseph H. Page, of Portland (Charles J. Michelet, of Portland, on the brief), for appellant.

A. C. Fulton, of Astoria (G. C. Fulton, of Astoria, on the brief), for respondent.

ROSSMAN J. (after stating the facts as above).

March 1, 1926, while the plaintiff and defendant were living together as husband and wife, they deemed it advisable to adjust their property rights. Under these circumstances they subscribed their signatures to the following instrument:

"This agreement made and entered into this the first day of March, 1926, by and between Theodore Knudson and Ida M. Knudson.

"Witnesseth: That whereas said parties are husband and wife and having encountered such difficulties in their married life that they find it necessary to separate and desire to make a settlement of all property rights between them,

"Now, therefore, it is hereby mutually agreed between said parties that the said Theodore Knudson shall have as his own, and his sole and separate property, the property known as the Broadway property located on the corner of East Broadway and East Ninth Street, now standing in the names of both of these parties and being in the City of Portland, Multnomah County, Oregon, together with the proceeds of the sale of said property, and the furniture and contents thereof. Mrs. Ida M. Knudson is to have as her own and her sole and separate property, the property known as the Seaside property, located in Clatsop County, Oregon, and also the property known as the Morris Street property, standing in her name of Ida M. Johnson, located in Portland, Multnomah County, Oregon, and the proceeds of any sale thereof.

"It is further agreed that each party will duly sign and execute any and all deeds and other papers necessary or proper to carry this agreement into effect, and in case a divorce is obtained by either party hereafter this property settlement and agreement shall be conclusive and binding as to both parties, and neither one shall make any further claim upon the other in connection with, or in regard to any of said property."

At that time, the title to the Seaside property was vested in the defendant; she had acquired it prior to her marriage. The mortgage, which the plaintiff seeks to foreclose, was an incumbrance upon that property. The defendant had executed the note and mortgage prior to her marriage, and the plaintiff later acquired these instruments. After the consummation of the above agreement, the parties executed the necessary deeds to fulfill the covenants of their contract. Some days later the plaintiff filed a suit for a divorce. One of the allegations of his complaint is the following: "There are no property rights to be settled between them." The findings of fact in his suit are to similar effect. It is the contention of the defendant that the effect of the above agreement was to satisfy the mortgage owned by the plaintiff; the latter contends that his note and mortgage were unaffected by the agreement, and that he is now at liberty to foreclose the mortgage debt; for that purpose he instituted this suit. There is no evidence that any other property, owned by the parties, was omitted from their agreement. It will be observed from a reading of the memorandum of agreement that the document recites that the parties were settling "all property rights between them." The word "property" has been repeatedly defined as a term of very broad signification, embracing everything that has exchangeable value, or goes to make up a man's wealth; in fact, the courts frequently say that "property" is nomen generalissimum, and extends to every species of value, right, and interest. Fishburn v Landershausen, 50 Or. 363, 92 P. 1060, 14 L. R. A. (N. S.) 1234, 15 Ann. Cas. 975; 6 Words and Phrases, Third Series, 241. The word "property" was so understood in an agreement settling the property rights between husband and wife. Coley v. Coley, 94 S.C. 383, 77 S.E. 49. While the instrument before us expresses a purpose to make a settlement of all the property rights between the parties, the plaintiff contends that the debt at that time owing from the wife to the husband, and secured by a mortgage upon property in her name, was unaffected by the settlement. A debt has been frequently defined as being property. 6 Words and Phrases, Third Series, 249; In re Daly's Estate, 100 A.D. 373, 91 N.Y.S. 858. A right to enforce a debt is necessarily a property right. It is axiomatic that a note, mortgage, or similar instrument is property. Bouvier's Law Dictionary, Baldwin's Revision, 995. Thus, it is clear, that, when the parties in the prelude to their agreement expressed their "desire to make a settlement of all property rights between them," they employed words capable of including the note and mortgage, which the plaintiff now asserts was unaffected by the...