Peterson v. Thompson

• Decision Date: 05 October 1915
• Citation: 78 Or. 158,151 P. 721
• Parties: PETERSON v. THOMPSON ET AL.
• Court: Oregon Supreme Court

151 P. 721

78 Or. 158

PETERSON v. THOMPSON ET AL.

Supreme Court of Oregon

October 5, 1915

Department 1.

Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.

Suit by Etella Peterson against Emma P. Thompson and others. Decree for plaintiff, and defendants appeal. Affirmed.

This was a suit to foreclose a mortgage against a tract of land in Douglas county, Or., and in addition to secure a personal judgment against the defendants, W. C. Harding Land Company and W. C. and Ada Harding, husband and wife. The note which was secured by the mortgage was given by C.J. Stovin to W. C Harding Land Company. The note and mortgage were later sold by the W. C. Harding Land Company to plaintiff; the note being indorsed as follows:

"Pay the within note to Etella Peterson, or order. W. C. Harding Land Co. W. C. Harding, Pres. L. W. Wallace Sec'y."

There was also this further indorsement:

"Presentment notice and protest are waived. W. C. Harding. Ada Harding."

The complaint alleged, in substance, that the mortgage was given by C.J. Stovin and wife to secure a promissory note executed by Stovin to the W. C. Harding Land Company for $4,500, with 6 per cent. interest from date, upon which note there were indorsements showing payment of interest to December 7, 1911 amounting to $550.80, and upon the latter date a payment upon the principal of $590. The complaint then set up the death of Stovin prior to the commencement of this suit, and alleged that A. N. Orcutt, his administrator, duly sold the mortgaged premises at administrator's sale to defendant Emma B Thompson for $250, and that Stovin's widow conveyed all her right, title, and interest to Emma B. Thompson, who was alleged to be the owner of the property subject to the mortgage in suit and another mortgage mentioned in the complaint. The complaint also alleged the assignment of the mortgage in suit to plaintiff; that the mortgage is subsequent and inferior to another mortgage executed by the Stovins to the W. C. Harding Land Company and assigned through various parties to Alice I. Thompson, who is now the owner and holder of it. The presentment, nonpayment of the note in suit, and the notice thereof were duly alleged. The complaint contained the further allegation that said note was assigned and delivered by the W. C. Harding Land Company and indorsed by the defendants W. C. and Ada Harding for the purpose of paying a sum of money due to the plaintiff from the defendant W. C. Harding Land Company; that said note was taken by plaintiff on the credit of such indorsement; and that defendants W. C. and Ada Harding indorsed said note for the purpose of procuring for the said W. C. Harding Land Company a credit with plaintiff knowing that it would be so applied. The answer formally denied that the mortgaged property had been sold to Emma B. Thompson or that she was the owner of it; that there was any sum due or unpaid upon the note; the various assignments of the other mortgage; and Alice I. Thompson's ownership thereof. It contained the following affirmative defense:

"That the plaintiff, being the owner and holder of the notes and mortgages set out in plaintiff's complaint, purchased the land therein described from the administrator of the estate of said C.J. Stovin, deceased, and that the consideration for the purchase of said land was the indebtedness of the said C.J. Stovin and Fannie B. Stovin, his wife, as evidenced by the promissory notes described and set out in plaintiff's complaint, and in purchasing said real property from the said A. N....