McBride v. McBride
| Decision Date | 25 February 1936 |
| Citation | 54 P.2d 838,152 Or. 601 |
| Parties | McBRIDE v. McBRIDE et al. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.
Suit by Cora E. McBride against William W. McBride and others. From an adverse decree, the plaintiff appeals.
Affirmed.
See also, 148 Or. 478, 36 P.2d 175.
This is an appeal from a decree of the circuit court which forecloses two mortgages owned by the plaintiff and one owned by the defendant Jacob Weber. One of the mortgages owned by the plaintiff, being in the amount of $10,000, is only incidentally involved in this appeal. The other mortgage which she owns, being in the amount of $1,000, describes the same premises as the mortgage of $1,200 owned by the defendant Jacob Weber. The circuit court held that Weber's mortgage was entitled to priority over the plaintiff's $1,000 mortgage. That provision of the decree is the subject-matter of this appeal.
L. E Schmitt, of Portland (J. R. Callahan, of Portland, on the brief), for appellant.
B. G Skulason and Roscoe P. Hurst, both of Portland, for respondent Jacob Weber.
December 1, 1919, the defendant W. W. McBride signed three notes payable to the plaintiff, Cora E. McBride, his former wife and secured their payment by a mortgage which described six fractional lots located in the city of Portland, two of which are in Lane's addition, two in Holladay's addition, and two in block 265 of Aiken's addition. Those properties are not involved in the issues presented by this appeal. One of the notes was in the denomination of $2,000, and the other two were each in the denomination of $5,000.
In February of 1925 the $2,000 note had been paid, but the two $5,000 notes were not yet due. Accrued interest of $231.08 was unpaid, and some taxes levied upon the mortgaged property were delinquent. February 3, 1925, W. W. McBride, as party of the first part, and Cora E. McBride, as party of the second part, signed an agreement, the substance of which we shall now state. After reciting the facts above mentioned, it states: "The party of the first part finds it necessary at this time to obtain a priority as against said mortgage so far as the same concerns" the two fractional Lane's addition lots "so that he may raise the sum of $2,500 on mortgage" on those lots. It further states that he owned lot 6, block 304, Aiken's addition. The document then continues that McBride, the mortgagor, ***"
The $2,000 mortgage just mentioned was held by one Evelyn I. Morse.
The agreement bound the plaintiff to apply the rentals collected from the property to (1) the discharge of accrued interest; (2) the payment of the taxes; (3) the discharge of interest accrued in the meantime; (4) the payment to herself of the aforementioned sum of $1,000; and (5) the discharge of taxes and interest which had accrued in the meantime. The instrument then provided that, after all of these sums had been paid, "she (the plaintiff) will then, at the expense of the party of the first part, release this mortgage."
Next it provided: "If for any reason the party of the first part shall refuse to cause said rentals to be paid over to the party of the second part promptly and during each month, including the present month of February, 1925, then and in that event the part of the second party may foreclose this mortgage as additional security for the payment of said sum of Ten Thousand ($10,000.00) Dollars, accrued and accruing interest, taxes and other charges payable against the real properties described in the first mortgage above mentioned, and in this mortgage."
This agreement was recorded in the miscellaneous records April 9, 1927. Simultaneously with the execution of that instrument, which, it will be observed, refers to itself as a mortgage, McBride and his wife delivered to the plaintiff a mortgage which, however, was unaccompanied by a note. From it we quote: "Witnesseth: That said mortgagors, in consideration of the agreements of Cora E. McBride and of the said W. W. McBride contained in another instrument of even date herewith and executed contemporaneously herewith, do hereby grant, bargain, sell and convey unto said mortgagee" the aforementioned lot 6, block 304, Aiken's addition. It will be recalled that that lot is not mentioned in the first mortgage, but is mentioned in one of the "Whereas" clauses of the agreement of February 3, 1925, as additional property owned by McBride. Continuing, the mortgage recites: ***"
This mortgage was recorded in the mortgage records April 4, 1925. McBride then obtained a loan of $2,500. Manifestly, the agreement and the mortgage must be construed as one instrument.
The next incident of which we need take notice occurred in the latter part of 1930...
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Hagen v. Butler
...the order of priority between two or more mortgages. 59 C.J.S. Mortgages § 218, p. 287. The general rule is quoted in McBride v. McBride, 152 Or. 601, 54 P.2d 838, 841, as 'The parties may, as between themselves, make a valid agreement, though it be verbal only, that one of two mortgages sh......