Roberts v. Sutherlin, 4 Or. 219, 223; Cooke v. Cooper, 18 Or. 142, 148, 22 P. 945, 7 L.R.A. 273, 17 Am.St.Rep. 709; Coles v. Meskimen, 48 Or. 54, 56, 85 P. 67; Lambert v. Howard, 49 Or. 342, 345, 90 P. 150; Caro v. Wollenberg, 68 Or. 420, 428, 136 P. 866. Renshaw v. Taylor, 7 Or. 315, 326; Berns et al. v. Berns et al., 125 Or. 682, 687, 267 P. 1033. Caro v. Wollenberg, 83 Or. 311, 318, 163 P. 94.
Similar rules of accounting are applicable where the mortgagee takes possession and rents the mortgaged property or occupies it himself. Reid v. Reid, 219 Or. 500, 348 P.2d 29, 38 (1959); Berns et al. v. Berns et al., 125 Or. 682, 687, 267 P. 1033 (1928); Renshaw v. Taylor, 7 Or. 315, 325-326 (1879); Osborne on Mortgages (1951), pp 422-425. In the present case the evidence supports the conclusion that plaintiffs exercised reasonable diligence in renting the property.
We are not unmindful that ordinarily a mortgagee in possession has a responsibility to account for the reasonable value of the use and occupancy of the mortgaged premises during his possession thereof. Berns v. Berns, 125 Or. 682, 687, 267 P. 1033. In the instant case, however, an accounting would not appear to be called for, in that we have clear and convincing evidence from the defendant as to an agreement between Clifford and Clair in which the rental was expressly fixed.
Submitted on Petition for Rehearing July 31, 1928Rehearing denied and former opinion modified October 16, 1928 Original opinion, 125 Or. 682. For appellants, Messrs. Botts Winslow.