Legal Opinion

Besser v. Hawthorn

Multnomah County Circuit Court, Oregon

Decided November 15, 1869PublishedCited by 6 opinions

This is a suit to foreclose a mortgage, executed ou the twentieth of June, 1859, by Cincinnatus Shultz and his wife, to the plaintiff, to secure the payment of $500, two years from its date, with interest, at three per cent, per month. . On the seventh day of the same month, said Cincinnatus Shultz-had purchased the lands thus mortgaged, from James B. Stephens, and had given his note, payable in ninety days, for $400 of the purchase money and interest.

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This is a suit to foreclose a mortgage, executed ou the twentieth of June, 1859, by Cincinnatus Shultz and his wife, to the plaintiff, to secure the payment of $500, two years from its date, with interest, at three per cent, per month. . On the seventh day of the same month, said Cincinnatus Shultz-had purchased the lands thus mortgaged, from James B. Stephens, and had given his note, payable in ninety days, for $400 of the purchase money and interest. Said Shultz and his wife then executing a mortgage on the same lands, to James B. Stephens, to secure the $400 and interest, which mortgage…

1Opinion of the CourtUpton, J.

The controverted questions in this caso, arise from the failure to make Besser, the junior mortgagee, a defendant in the original foreclosure suit, instituted by Stephens.

The statute in force prior to 1862 was silent as to the necessity of making a junior mortgagee party upon foreclosure, and the general rule, as stated in Story on equity pleadings, § 193, “ That all incumbrancers, as well as tbo mortgagor, should be made parties, if not as indispensable, at least as proper parties to sueb a bill, whether they are prior or subsequent incumbrancers,” was then undoubtedly applicable.

But counsel…

2Cases cited4 opinions

  1. James v. MoreyCourt for the Trial of Impeachments and Correction of Errors · 1823
  2. Vanderkemp v. SheltonNew York Court of Chancery · 1844
  3. Wood v. OakleyNew York Court of Chancery · 1845
  4. Roberts v. Jackson, ex dem. WebbNew York Supreme Court · 1828

3Cited by6 opinions

  1. Woodhurst v. CramerWashington Supreme Court · 1902
  2. Marshall v. WilliamsOregon Supreme Court · 1891
  3. Swenson v. MillsCourt of Appeals of Oregon · 2005
  4. Humphreys v. SchlenkHamilton Circuit Court · 1909
  5. Mansfield v. ColeCuyahoga County Common Pleas Court · 1914

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