Besser v. Hawthorn
Oregon Supreme Court
Appeal from, Multnomah County. On the twentieth of June, 1859, one of the defendants, Cincinnatus Shultz, for a valuable consideration, executed to the plaintiff his note for $500, payable in two years, with interest at three per cent, per month.
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Appeal from, Multnomah County. On the twentieth of June, 1859, one of the defendants, Cincinnatus Shultz, for a valuable consideration, executed to the plaintiff his note for $500, payable in two years, with interest at three per cent, per month. To secure the payment of the note,. Shultz and Mary his wife executed a mortgage upon the property described in the complaint, of which Shultz was then the owner in fee, which mortgage was duly recorded on the twenty-second day June, 1859. Shultz had purchased this property of James B. Stephens, on the seventh day of June, 1859, for $400, for which…
1Opinion of the CourtPrim, J.
The principal question arising in this case results from the omission of the second mortgagee as a defendant in the foreclosure of the first mortgage. The statute in force in this state prior to 1862 was silent upon the necessity of making subsequent incumbrancers parties to suits of foreclosure. The general rule, as stated in Story on Equity Pleadings, sec. 193, was, “that all incumbrancers, as well as the mortgagor, should be made parties, if not as indispensable, at least proper parties to such a bill, whether they are prior or subsequent incumbrancers.” This rule, we think, was…
2Cases cited1 opinion
- Vanderkemp v. SheltonNew York Court of Chancery · 1844
3Cited by4 opinions
- DeLashmutt v. SellwoodOregon Supreme Court · 1882
- Wilson v. TarterOregon Supreme Court · 1892
- Black v. Manhattan Trust Co.District Court, D. Oregon · 1914
- Yeager v. Nutzotin Placer Co.District Court, D. Alaska · 1951