De Roboam v. Schmidtlin

• Decision Date: 17 December 1907
• Citation: 50 Or. 388,92 P. 1082
• Parties: DE ROBOAM v. SCHMIDTLIN.
• Court: Oregon Supreme Court

92 P. 1082

50 Or. 388

DE ROBOAM v. SCHMIDTLIN.

Supreme Court of Oregon

December 17, 1907

Appeal from Circuit Court, Jackson County; H.K. Hanna, Judge.

Suit by Jean St. Luc De Roboam against Augustine Schmidtlin. Decree for plaintiff, and defendant appeals. Reversed, and complaint dismissed.

This is a suit in equity filed by plaintiff to establish his title to certain real estate in Jackson county against the claim of defendant, Augustine Schmidtlin. On April 14, 1884, Jane Holt died intestate, leaving surviving her a husband, George W Holt. At the time of her death she was the proprietor, and she and her husband were the owners by joint deed, of the United States Hotel in Jacksonville. This property was at the time encumbered by mortgages and judgment liens amounting to practically its full value. The plaintiff is a brother of Mrs. Holt, and came to Jackson county without means in 1871. The following year he married a Mrs. Schmidtlin, who owned and was living upon a farm near Jacksonville. He continued to live on this farm with his wife until shortly after his sister's death, when they moved to Jacksonville, and took possession and management of the hotel. They had no property at that time except the farm. On June 14, 1884, plaintiff was appointed administrator of the estate of his sister on petition of her husband. Seven days later, and on the 21st of the same month, plaintiff and his wife executed and delivered to Louis Solomon a mortgage on her farm to secure the payment of their joint and several promissory note for $3,700. No money was borrowed by them of Solomon at the time, but on the day of the execution of the mortgage, and on the 23d day of June and the 2d of July, respectively, mortgages on the hotel property, given by Mrs. Holt and her husband to Reames Brothers for $1,614, Kubli for $977.59, and a judgment lien thereon in favor of Orth for $1,043.18, were assigned by the respective owners thereof to Solomon. On December 1, 1884 two prior mortgages on the same property, in favor of Jerry and Delia Nunam, respectively, were assigned by the owner to A.L. Reuter. Plaintiff continued to act as administrator of the estate of his sister until March 9, 1885, when he was removed by the county court for incompetency, and on April 25th following a suit was commenced by the attorneys of himself and wife in the name of Solomon to foreclose the Reames and Kubli mortgages, and for a decree for the sale of the hotel property to satisfy the amount due thereon, and on the Orth judgment. Plaintiff, as administrator of the estate of Mrs. Holt, G.W. Holt, her husband, Reuter, assignee of the Nunam mortgages, and plaintiff's wife, who was assignee of a mortgage in favor of Drum, were made defendants, and all acknowledged service of summons. On May 12, 1885, a decree of foreclosure was entered by default, and the hotel property ordered sold, subject to the two prior mortgages in favor of Nunam and which had been assigned to Reuter, to satisfy the amount due on the Reames and Kubli mortgages, the Orth judgment, and the mortgage in favor of plaintiff's wife. On the 16th an execution was issued on this decree under which the property was, on June 20th sold to plaintiff's wife for $4,325. No money was paid by her or any one else on this sale, except $74.30 for fees, costs, and expenses of the sale. The amount purporting to be due on the Reames and Kubli mortgages and Orth judgment, amounting to $3,695.12, was satisfied by Solomon's receipt to the sheriff, and the amount of the Drum mortgage owned by Mrs. De Roboam was likewise satisfied by her receipt for $555.58. The attorney's fees amounting to $432 were subsequently paid by plaintiff and his wife. On the next day after the sale plaintiff and his wife executed and delivered to Solomon a mortgage on the hotel property to secure the payment of their promissory note for $3,700, made June 21, 1884, and secured by mortgage on Mrs. De Roboam's farm. On December 15 1885, the interest and $1,700 on the principal was paid on the original mortgage to Solomon, and on the same day it was assigned by him to Reuter. On April 2, 1886, a sheriff's deed to Mrs. De Roboam for the hotel property was filed for record, and on the same day she and her husband gave their joint note to Reuter for $4,000, secured by a mortgage on the hotel property and her farm, and Reuter satisfied of record the Nunam mortgage for $2,000, the other one for $500 having been satisfied by him on March 5th, previously, and also satisfied the mortgage assigned to him by Solomon. Plaintiff and his wife continued thereafter to operate and manage the hotel until her death in October, 1900. About the time they took possession of the hotel, or soon thereafter, the plaintiff secured a contract from the county for keeping the poor. These people were kept on his wife's farm, and were fed from the hotel. "What I take out to throw away my cook fix it up nice and brought...