Pease v. Kelly
Oregon Supreme Court
The complaint in substance alleges that Robert Moore in his lifetime, in 1852, sold and conveyed by deed to Daniel H. Ferguson, a tract of land, and water privilege at the Willamette Falls, for fifty thousand dollars; of which sum forty-five thousand remained unpaid, and a note for that amount was taken by Moore, secured by mortgage on the premises.
Read the full summary
The complaint in substance alleges that Robert Moore in his lifetime, in 1852, sold and conveyed by deed to Daniel H. Ferguson, a tract of land, and water privilege at the Willamette Falls, for fifty thousand dollars; of which sum forty-five thousand remained unpaid, and a note for that amount was taken by Moore, secured by mortgage on the premises. In 1853, Ferguson sold the premises subject to the mortgage, to the Willamette Falls Transportation Company, who made extensive improvements thereon, and failed; leaving their work subject to the liens of mechanics and material men, in addition to…
1Opinion of the CourtBoise, J.
In this case, Moore took a note and security on the land for the purchase money. A mortgage is a more certain and definite security than a vendor’s lien. The lien exists if there is no higher security, but we think that the taking of a mortgage, which is an open and public lien, is a waiver of the vendor’s lien, and we think that both liens cannot exist at the same time, and such seems to be the well established doctrine of the cases. (Brown v. Gilman, 4 Wheat. 255; Fish v. Howland, 1 Paige, 30; Hunt v. Waterman, 12 Cal. 30; Camden v. Vail, 23 Cal. 633; 1st Leading cases in Equity, 365; 27…
2Cases cited2 opinions
- Fish v. HowlandNew York Court of Chancery · 1828
- Camden v. VailCalifornia Supreme Court · 1863
3Cited by7 opinions
- Martin v. BeckerCalifornia Supreme Court · 1915
- Trullinger v. KofoedOregon Supreme Court · 1879
- Gee v. McMillanOregon Supreme Court · 1886
- Frame v. SliterOregon Supreme Court · 1896
- Featherstone v. EmersonUtah Supreme Court · 1896
2 more not listed; retrieve them via the Exa API.