Pease v. Kelly

Decided September 15, 1869

Oregon Supreme Court · decided 1869-09-15

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.

Relies on Brown v. Gilman · Kimball v. Gearhart · Marsh v. Astoria Lodge No. 112

Good law ✅— No negative treatment on recordhow we know

Decided 1869-09-15

How this case has been cited

Cited by 4 later decisions — most recently February 1915

4 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Boise, J.

¶1In 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 Ill. 422.)

¶2This view of the matter necessarily disposes of all the questions in the case, and it will not be necessary in disposing of the case, to consider the numerous other points which were disbussed on the argument.

¶3The judgment will bo reversed.