Tinsley v. Lombard
| Decision Date | 19 December 1904 |
| Citation | 78 P. 895,46 Or. 9 |
| Parties | TINSLEY v. LOMBARD. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Wallowa County; Robert Eakin, Judge.
Action by F.P. Tinsley against B.M. Lombard. From a judgment in favor of plaintiff, defendant appeals. Reversed.
J.C McAllister and wife gave a mortgage to the Lombard Investment Company, providing, among other things, that the mortgagors should pay the taxes on the mortgaged premises, but if not so paid, then that the mortgagee might pay the same and add the amount thereof to the mortgage debt. Subsequently the mortgage and the obligations which it was given to secure were duly assigned and set over to the plaintiff. On the same day of the execution of plaintiff's mortgage, McAllister and wife gave two other mortgages to the Lombard Investment Company, covering the same premises, one of them, however including a 10-acre lot additional, which mortgages and the obligations secured thereby have since come into the hands of the defendant, Lombard, by due assignment and transfer. The plaintiff instituted this suit to foreclose his mortgage making Lombard a party defendant with others. Among other allegations of the complaint is the following: "That the defendants herein have or claim to have some right, title, or interest in or to the said premises, the nature of which is to plaintiff unknown; but whatever the same may be, it is inferior in right, and subsequent in time, to the mortgage lien of this plaintiff upon said premises." Without denying or in any manner controverting any of the allegations of the complaint, Lombard interposed two further and separate answers, which he denominates "cross-complaints," setting up his mortgages, which he prays shall be declared liens upon the premises described in plaintiff's mortgage, second, subsequent, and subject to such mortgage but a first lien upon the 10-acre lot not included therein; that defendant's said mortgages be foreclosed; and that the equities of the parties be adjusted, and the assets marshaled accordingly. Plaintiff demurred to these answers on the ground that defendant had not commenced his suits to foreclose within the time limited by the Code of Civil Procedure, which demurrers were sustained, and, defendant refusing to plead further, a decree was entered for plaintiff, foreclosing all right or interest of the defendant in the premises comprised in plaintiff's mortgage, from which he appeals.
D.W. Sheahan, for appellant.
J.A. Burleigh, for respondent.
WOLVERTON J. (after stating the facts).
The question involved is whether the plaintiff is in a position to set up the statute of limitations as a bar to defendant's foreclosures. The defendant is not controverting any right that plaintiff is seeking to maintain, but is aiming only to have his mortgages foreclosed...
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