Wright v. Conservative Inv. Co.

• Decision Date: 26 March 1907
• Citation: 89 P. 387,49 Or. 177
• Parties: WRIGHT v. CONSERVATIVE INV. CO. et al.
• Court: Oregon Supreme Court

89 P. 387

49 Or. 177

WRIGHT v. CONSERVATIVE INV. CO. et al.

Supreme Court of Oregon

March 26, 1907

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

Suit by J.E. Wright, trustee, against the Conservative Investment Company and others. From the decree, plaintiff appeals. Modified.

Plaintiff sues as trustee of C. Meng to foreclose a mortgage on certain real property in Douglas county given by defendants, the Conservative Gold Mining Investment Company and the Jordan Creek Mining & Water Power Company, to appellant, designated therein as "trustee," to secure their promissory note to the same effect, dated May 20, 1903, which provides for the payment of a reasonable attorney's fee for the collection thereof. A. Rowley and Isabella Rowley are also parties defendant. In addition to the usual allegations plaintiff alleges, in effect, that she is the trustee of C Meng, and as such the note and mortgage belong to her; that each of the defendants claims some interest in the mortgaged premises inferior and subsequent to her mortgage; that on September 2, 1904, she paid $2.95, taxes on the premises for the year 1903, and on July 29, 1905, $3.21, taxes for the year 1904, which had not been repaid to her; and that $50 is a reasonable attorney's fee for the foreclosure of the mortgage. The prayer of the complaint is for a recovery of the amount of the note, the said taxes paid, with interest thereon from date of payment, and the said attorney's fees; and for a foreclosure of the mortgage against all the defendants. The defendant corporations answered jointly denying all the material allegations of the complaint, except the making of the note and mortgage and its nonpayment, and affirmatively alleged that plaintiff was trustee for C. Meng and Isabella Rowley, jointly, setting forth the facts creating the trust relationship and the respective interests of C. Meng and Isabella Rowley therein. The remaining defendants answered separately to the same effect, excepting they did not deny the payment of the taxes by plaintiff. The reply denied the allegations of new matter in the answer, and alleged that C. Meng purchased at execution sale the alleged interest of Isabella Rowley in said note. Findings were made to the effect that, in addition to the admissions in the pleadings, the sum of $30 was a reasonable attorney's fee for the foreclosure of the mortgage; that C. Meng was not the owner of Isabella Rowley's interest in said note and mortgage; that plaintiff was entitled to a foreclosure of the mortgage against all the defendants; but that Isabella Rowley was entitled to a dismissal of the suit as to her, and also to costs and disbursements. A decree in accordance therewith was entered, from which plaintiff appeals.

R.C Wright, for appellant.

Wm. M. La Force and Albert Abraham, for respondents.

SLATER C. (after stating the facts).

This is a suit by a trustee of an express trust to foreclose a mortgage made in her name for the benefit of others, and by the provisions of section 29, B. & C. Comp., she can maintain the suit without joining the persons for whose benefit the suit is prosecuted. Holladay v. Davis, 5 Or. 40; Considerant v. Brisbane, 22 N.Y. 389. The object of the suit is to reduce to the possession of the trustee the subject-matter of the trust so as to enable her to make thereafter an accounting with the beneficiary or beneficiaries of the trust, and it in no way affects the trustee's relation with her cestuis que trustent, and for that reason it is not necessary that the latter be made parties. 22 Enc.Pl. & Pr. 163. The collateral issues, therefore, attempted to be made by the pleadings as to who were the beneficiaries of the trust, and the present interest of either therein, are entirely foreign to the object of the suit, and should have been disregarded by the court as immaterial. Nor, in any event, could such issues have been legally determined as against C. Meng, an alleged beneficiary, without having made him a party, which was not done.

The decree was in plaintiff's favor for the recovery of the amount of the note, the taxes, without interest, and $30 attorney's fee, and for the foreclosure of the mortgage against all the defendants excepting Isabella Rowley, but as to her the suit was dismissed with...