Lambert v. Howard

¶1Opinion by Mr.

¶21. The decree, in our opinion, must be affirmed. On the pleadings and evidence the plaintiff has no standing in a court of equity and is not entitled to equitable relief. The record discloses that in 1892 she mortgaged the property in controversy to Win. Irwin for its full value, 'and soon thereafter, without paying the mortgage or any part thereof, removed from the state, and has never since been in possession of the premises or exercised any dominion or control over them, except for a short time during the year 1896, when she occupied them by the consent of Irwin. The property was of but little value, unproductive and practically wild land, and it is undisputed that in 1893 Irwin assumed control and thereafter exercised actual dominion over it, repaired the fences, paid the taxes, and was the reputed owner until he sold and conveyed it to the defendant in 1902. The plaintiff claims that his possession was without her consent, but the weight of the testimony and the entire circumstances of the case are against her on that point. Irwin testified positively and unequivocally that just before she left she borrowed of him $40, ánd directed him to take possession of the property in payment of the mortgage and the money so borrowed; and all his subsequent conduct is consistent with that theory. It is true the property was in possession of a tenant when plaintiff left the state, but the rent was to be paid to Irwin, and, when the lease expired, the tenant contracted with Irwin for a renewal thereof. Irwin never actually resided upon the property, and during much of the time he claimed to be in possession it was unoccupied, but he had continuous dominion over it, manifested by sundry acts of ownership, as renting it when he *345could do so, paying the taxes, keeping the fences in repair and the like. This was sufficient to make him and his grantee mort* gagees in possession (Costello v. Edson, 44 Minn. 135: 46 N. W. 299; Coleman v. Billings, 89 Ill. 183; Webber v. Clarke, 74 Cal. 11: 15 Pac. 431; Ford v. Wilson, 35 Miss. 490: 72 Am. Dec. 137), and the plaintiff is not entitled to relief in equity as against them without first doing equity herself by paying the mortgage.

¶32. While under our law a mortgagee cannot recover possession of the mortgaged premises without a foreclosure and sale according to law (B. & C. Comp. § 336), yet, if he obtains possession after condition broken, either by the assent of the mortgagor or by means of legal proceedings, he and his grantees may retain such possession as against the mortgagor until the amount due on the mortgage has been paid: Roberts v. Sutherlin, 4 Or. 219; Cooke v. Cooper, 18 Or. 142 (22 Pac. 945: 7 L. R. A. 273: 17 Am. St. Rep. 709).

¶4Decree affirmed.

¶5Affirmed.