Young v. Clay
| Citation | 10 P.2d 602,139 Or. 427 |
| Parties | YOUNG v. CLAY et al. |
| Decision Date | 29 April 1932 |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Klamath County; W. M. Duncan, Judge.
Suit by Pearl M. Young against D. B. Clay, John Gordon, and others. From a decree for plaintiff, defendant Gordon appeals.
Affirmed.
This is a suit brought by the plaintiff against defendants Clay Benz, Ceboff, Gordon, and Russel to reform a certain mortgage upon real property described in the complaint and to foreclose this mortgage upon the land of defendant Gordon and subject it to sale for the satisfaction of a mortgage debt to procure a judgment against defendants Clay, Benz, and Ceboff for $1,875, with interest at 8 per cent. per annum from October 18, 1928, less $625 paid on July 1, 1929, for $200 attorney's fees, and for costs.
For her cause of suit the plaintiff alleged, among other things that, prior to October 18, 1928, she made a contract with one Otto F. Boye whereby she agreed to purchase, and Boye agreed to sell, certain real property situate in Klamath county Ore., described in the complaint; that thereafter, at an agreed price of $1,875, she sold and assigned to defendants Clay, Benz, and Ceboff a three-fourths interest in and to the contract and certain personal property at that time on the premises covered thereby, their indebtedness to plaintiff therefor being evidenced by their joint and several promissory note executed on October 18, 1928, in the amount of $1,875, secured by mortgage duly executed and recorded on the same date, which mortgage is set out in, and made a part of, the complaint, and which was intended by these defendants to mortgage to plaintiff the equitable interest possessed by them in and to the above-mentioned property, and all personal property thereon, but that, through inadvertence and mistake of the attorney employed to prepare the mortgage, the real property was erroneously described, and the error in description was not discovered by, or known to, plaintiff until November, 1929.
She alleged that subsequent to October 18, 1928, defendant Ceboff sold and assigned to defendant Gordon all of his interest in and to both the real and personal property, subject to plaintiff's lien thereon, and that this plaintiff and defendant Clay sold and assigned to defendants Benz and Gordon all their right, title, and interest in and to the property, subject to the lien of the plaintiff; that she believes that, during the year 1929, defendant Russel obtained a leasehold interest in and to the premises described in the complaint, but that such leasehold interest is subsequent in time and inferior in right to plaintiff's lien thereon. She further alleged that no part of the promissory note secured by mortgage has been paid except the sum of $625.
Plaintiff asked that the mortgage be reformed to conform to the true and correct description of the real property, and that the same be foreclosed. She alleged that she was entitled to judgment against defendants Clay, Benz, and Ceboff in the sum of $1,875, with interest from October 18, 1928, less $625 paid on July 1, 1929, and for $200 attorney's fees together with her costs and disbursements.
Defendant Gordon, answering plaintiff's complaint, admitted that defendant Ceboff sold and assigned to him all of his right, title, and interest in and to the premises in question, and that defendant Clay and this plaintiff sold and assigned to defendants Benz and Gordon all of their right, title, and interest in and to the premises; both assignments being subject to the lien of the plaintiff upon the premises and the personal property situate thereon. He averred that he had not sufficient information from which to form a belief as to the remaining allegations of the complaint, and denied the same.
The suit came on for trial upon the complaint and answer, and the court decreed that the plaintiff have and recover from defendants Clay and Benz the sum of $1,875, with interest at 8 per cent. per annum from and after October 18, 1928, until paid, less $625 paid on July 1, 1929, and the further sum of $200 attorney's fees, and her costs and disbursements. It was further decreed that the sum of money found to be due the plaintiff from defendants Clay and Benz should be a first and prior lien upon the following real and personal property:
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Kendrick v. Davis
...amount he had paid to the contract seller to complete the payment on the contract. It is reiterated in a quotation from Young v. Clay, 139 Or. 427, 10 P.2d 602 (1932), appearing in Nelson v. Bailey, 54 Wash.2d 161, 165, 338 P.2d 757, 73 A.L.R.2d 1400 (1959). It had no application in either ......
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First Mortg. Corp. of Stuart v. deGive
...and the mortgagee cannot be ousted of his rights by a subsequent rescission or reconveyance by the original parties. Young v. Clay, 1932, 139 Or. 427, 10 P.2d 602; Norlin v. Montgomery, 59 Wash.2d 268, 367 P.2d 621. Thus, O'Connor's deed back to defendant, at a date subsequent to his mortga......
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Braunstein v. Trottier
...450 (1960). The vendee's interest may, for example, be assigned or mortgaged, and the equitable estate may be foreclosed. Young v. Clay, 139 Or. 427, 10 P.2d 602 (1932). The vendor under the contract is said to have a vendor's lien on the property. Grider v. Turnbow, 162 Or. 622, 641, 94 P.......
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Estate of Brewer by First Nat. Bank of Oregon v. Iota Delta Chapter, Tau Kappa Epsilon Fraternity, Inc., 80-0890-NJ-2
...general proposition, the holder of an equitable mortgage acquires no greater interest than that of the vendee-mortgagor. Young v. Clay, 139 Or. 427, 10 P.2d 602 (1932). In that case, the court stated that it subscribed to the doctrine set forth in 41 C.J. 478, which it " 'A mortgage given b......