From Douglas: James W. Hamilton, Judge. Statement by Me. Justice McBride. This is a suit by Etella Peterson against Emma B. Thompson, W. C. Harding Land Company, a corporation, W. C. Harding and Ada Harding, husband and wife, to foreclose a mortgage against a tract of land in Douglas County, Oregon, and in addition to secure a personal judgment against tlie defendants, W. C. Harding Land Company and W. C. and Ada Harding, husband and wife.
Cited by 1 later decisions — most recently November 1924
1 state decisions
Good law ✅— No negative treatment on recordhow we know
¶4Department 1. .Mr. Justice Burnett delivered the opinion of the court.
¶54. The defendants Harding, who appealed, were indorsers of the note named in the mortgage foreclosed in this suit. They contend that the sale of the mortgaged premises by the administrator of the deceased maker of the note discharged the principal debtor, and consequently released the indorsers, who were only secondarily liable. They endeavor to work out this result exonerating the maker through some correspondence between the attorney for the estate and the attorney for the plaintiff written prior to the sale, which they say proves that its terms included the assumption by the purchaser of the payment of the note and mortgage involved in this suit. Nothing can be derived from this correspondence beyond negotiation. Except the indorsement of the defendants on the note, no writing appears in evidence signed by anyone agreeing to assume or pay the debt of Stovin, the maker of the note. It is not disclosed that the administrator’s deed which is the culmination of the transaction, and in which all previous bargaining is merged, contains any covenant by the grantee or condition imposed upon her looking to the payment of the indebtedness. In short, the legal effect of the transaction was to convey to Emma B. Thompson the equity of redemption remaining in the estate of the deceased maker of the note. While this might exhaust the estate of Stovin, it did not discharge it. It results in a situation where *165the indorsers must assume their secondary liability. It is a fallacy, then, to argue that the maker was released, and hence that they were discharged.
