Laurent v. Lanning

• Decision Date: 07 December 1897
• Citation: 51 P. 80,32 Or. 11
• Parties: LAURENT et al. v. LANNING et al. [1]
• Court: Oregon Supreme Court

51 P. 80

32 Or. 11

LAURENT et al. v. LANNING et al. ^[1]

Supreme Court of Oregon

December 7, 1897

Appeal from circuit court, Linn county; H.H. Hewitt, Judge.

Action by James Laurent and others against E.J. Lanning, Virginia Lanning, and D.H. James. From a decree for plaintiffs defendant James appeals. Affirmed.

Plaintiffs sue to reform a mortgage, and to have the same foreclosed. The complaint alleges, among other things: "That on the 1st day of July, 1893, E.J. Lanning and Virginia Lanning, his wife, for the purpose of securing the several promissory notes hereinbefore alleged, made, executed, and delivered their certain indenture to plaintiffs, *** whereby they mortgaged to them all the following described real property," etc.; and, in substance, further alleges that the defendant D.H. James is the assignee of the Bank of Oregon, and claims a lien upon said land, but that whatever lien he has is subsequent and subject to plaintiffs' said mortgage. The defendant James controverts the execution and delivery of the mortgage and the allegation touching the subordinate position of his lien; and for a further and separate defense alleges the recovery and docketing of two judgments against Lanning in his favor, one on the 12th and the other on the 29th day of October, 1894, and that at the time of their rendition he had no knowledge or notice of the pretended mortgage set up and sought to be foreclosed in this suit. Plaintiffs filed a demurrer to the separate defense assigning as ground therefor that it does not state facts sufficient to constitute a defense to the suit, which was sustained in so far as such affirmative matter purported to be a defense to plaintiffs' cause of suit, and overruled in so far as it questioned the sufficiency of the allegations setting up defendant's judgments, and the liens acquired thereby. No reply was filed, and upon the trial a decree was rendered correcting and foreclosing plaintiffs' mortgage and declaring it prior in time, and superior in right, to defendant's judgments, from which decree defendant James appeals.

H.C Watson, for appellant.

J.K. Weatherford, for respondents.

WOLVERTON, J. (after stating the facts).

It is somewhat difficult to determine just what was accomplished by the order of the court below respecting the demurrer. The further and separate defense does not tend to defeat plaintiffs' cause of suit, which is for the reformation and foreclosure of their mortgage. Their right to the remedy invoked exists in spite of anything that appears in such defense. It does, however set up certain equities in James which have accrued by virtue of the recovery and docketing of the judgments whereby he acquired liens upon the same premises covered by plaintiffs' mortgage, and its real purpose was to test the question of priority touching the liens of the respective parties. It is not susceptible of a broader interpretation, nor is it effective for any other purpose, if it suffices for that. In this view, the demurrer should have been flatly overruled. And such we believe to be the effect of the court's order respecting the same although it anticipates quite clearly the law touching the relative equities of the parties ultimately to be ascertained and determined upon the pleadings and evidence. It did not in the least abridge or circumscribe any of the defendants' alleged rights, and the answer was as effective for the purpose for which it was interposed after it was made as before. So that the demurrer must be considered as having been overruled. This leaves the answer without a reply, and in this state of the pleadings the parties went to trial, and offered their proofs, which are now here for our consideration.

To prove the execution of the mortgage, the plaintiffs called as a witness Alfred H. Freerksen, who was a subscribing witness thereto. He identified the signatures of the mortgagors, and thereupon the mortgage was offered in evidence, and was objected to on the sole ground that it appeared to contain some erasures and interlineations not accounted for. A witness was then called to explain these, after which its was received by the court. There is at the foot of the mortgage a certificate of the acknowledgement of the makers over the hand and seal of Alfred H. Freerksen as notary public, and there is indorsed upon it a certificate of the recorder of conveyances for ...