Opinion
Argued June 22, 1934
Affirmed July 24, 1934 Objections to cost bill overruled September 18, 1934
Appeal from Circuit Court, Multnomah County, JAMES P. STAPLETON, Judge.
Henry S. Westbrook, of Portland, for appellants.
Keith A. Caldwell, of Portland (Harry E. Hall, of Portland, on the brief), for respondent.
This is a suit to foreclose a mortgage upon real estate given to secure the payment of a note for the sum of $3,000, with interest at 6 per cent per annum from September 20, 1932, and for expenses and attorney's fees. The mortgage was dated March 20, 1923. At that time G.G. Rohrer and wife were the owners of lot 2, block 71, Laurelhurst, Portland, Oregon, and they executed and delivered two promissory notes to plaintiff Jacob E. Grebe, one for the sum of $500 and the other for $3,000. To secure the notes they executed a mortgage upon said real property. The first note for $500 was paid. Suit was filed January 12, 1933. On April 7, 1931, the Rohrers conveyed said property to F.S. Crynes, one of the appellants, the consideration for this deed being $225, which was owing from the Rohrers to the Crynes. The deed was subject to Grebe's mortgage.
Plaintiff alleges:
"That defendants F.S. Crynes and Effie Crynes, have, or claim to have some interest in, or claim to said mortgaged premises; that all of said claim or liens, if any, have accrued since the lien of said mortgage and are subsequent in time and subsequent in interest to the rights of plaintiff."
The appellants F.S. Crynes and Effie Crynes, husband and wife, answered, and, after denying a portion of the complaint, these defendants-appellants allege that after the execution of the deed from the Rohrers to Crynes by which said premises were conveyed, defendant Crynes made and entered into a contract with the plaintiff by the terms of which the plaintiff and Crynes mutually convenanted to and with each other, as follows:
"That this defendant was to do and perform the work and repairs and furnish the material to improve said premises and place the same in a rentable condition, for which this defendant was to have a preference over said note and mortgage alleged in plaintiff's complaint, and that under and pursuant to said agreement this defendant furnished the material, did and caused to be done the following improvements and repairs upon said premises: * * * in the reasonable value of $500.00."
Crynes also claims a lien for the amount of work he had performed for the Rohrers in the sum of $225, a portion of which was upon the premises in question, and alleges that it was understood and agreed between plaintiff and Crynes that Crynes would, as he could, rent said premises and would pay the net rentals received upon the taxes and interest which the plaintiff had then paid upon said property, and that the balance of said rentals would be applied upon said sum of $725, and that until Crynes received in full the sum of $725 no suit or action upon said note or to foreclose said mortgage would be made or had by plaintiff; that Crynes rented the house and received the sum of approximately $300 upon said rental, which sum Crynes paid to plaintiff; that the house then became vacant and plaintiff was unable to rent the same. This agreement or contract is denied by plaintiff in his reply. A decree was rendered in favor of the plaintiff and the Crynes have appealed.
Suit by Jacob E. Grebe against G.G. Rohrer and wife and F.S. Crynes and wife. From a decree for plaintiff, F.S. Crynes and wife appeal.
AFFIRMED.
The defendants F.S. Crynes and Effie Crynes claim error in regard to the court sustaining the allegation as to the interest of defendants F.S. Crynes and Effie Crynes in said mortgaged premises, referred to above. This allegation was sufficient to bar the interest of a subsequent lienholder, if unanswered, and it was not incumbent upon the plaintiff to set out all the facts in regard thereto. This was a matter that was particularly within the knowledge of the defendants Crynes, and it was incumbent upon them to set up what their interest in the premises was, if they had any. They appeared by answer and attempted to set up such interest. There was no error in supporting such allegation.
Appellants contend that plaintiff, by the contract, waived the terms and conditions of the note and mortgage as to time, and that a demand was necessary, with a reasonable time in which to comply therewith before foreclosure could be instituted, under the rule announced in Samuels v. Mack-International, etc., Corp., 128 Or. 600 ( 275 P. 596), and Gray v. Pelton, 67 Or. 239 ( 135 P. 755). As a general rule no demand for payment or for performance of a condition is required before proceeding to foreclose, unless demand is expressly required by the stipulation of the parties, or under peculiar circumstances requiring the same: 41 C.J. 877, § 1085; Turnbow v. Keller, 142 Or. 200 ( 12 P.2d 558, 19 P.2d 1089); Giesy v. Aurora State Bank, 122 Or. 1 ( 255 P. 467, 256 P. 763).
Therefore, the necessity of demand depends upon whether there was an agreement between plaintiff Grebe and Crynes for an extension of time to allow Crynes to rent the property and make payments from the rentals. Plaintiff Grebe testified positively that there was no such contract or arrangement between Crynes and himself, as alleged in the answer and cross-complaint of Crynes; that Crynes desired him to be lenient and let the matter stand for four or five months, and that before commencing foreclosure he plainly informed Crynes that he had waited long enough, and unless payment was made he would proceed to foreclose. Mr. Grebe thought that this notice was given to Crynes in December, or the first of January. His son testified that it was early in December. Crynes himself testified that in the last part of November Grebe told him he was going to foreclose the mortgage. The testimony of Crynes himself does not indicate that there was a contract for extension of time between him and plaintiff. Soon after he received a deed to the premises in talking with Grebe about repairing the premises and renting the same, Crynes testified that Grebe said:
"`I think we can work the thing out.' I said, `I would be only too glad to do it because I haven't got anything out of the bills that Mr. Rohrer owes me and I would be glad to get something out of it.' * * * He (Grebe) told me if I wanted to do that to go ahead and put the improvements on it and advertise it and see if we couldn't rent it. He said, `After you get it fixed up it is possible that you can sell it and then we will both of us get our money out of it.' * * * He told me to go ahead and do it, and I agreed, as fast as I could, to pay up this back interest that was on it and take care of the back taxes and pay the taxes as it went along and keep the interest up."
When Grebe was talking of foreclosing the mortgage Crynes testified:
"I told him, `You agreed to let me fix this thing up and we would rent it, and if we got a chance to sell it you would take your money and if there was anything left I could take my money.'"
This version of the matter by Mr. Crynes shows that there was no agreement that he should have any preference on account of repairs made upon the house, or any extension of time for payment. The testimony plainly shows that the arrangement between plaintiff and defendant Crynes was nothing more than leniency on the part of plaintiff in allowing the mortgage to stand, and an attempt to make collection, at least, of some part thereof.
When the house could not be rented and the taxes and interest were not paid, it was nothing more than equitable that plaintiff should foreclose the mortgage. The plaintiff paid a portion of the delinquent taxes and Crynes repaid the plaintiff a portion thereof. The matter drifted along, and Grebe frequently requested Crynes to make satisfactory arrangements by giving a new mortgage on the property, which Crynes finally refused to do. About November, 1932, Grebe demanded that Crynes do something, either buy the mortgage at a discount of $150 or $200, or give the plaintiff a deed for a reasonable consideration or pay something on the mortgage and make a new mortgage, with additional time of two or three years. Crynes would not accept any of these propositions and said that he wanted to talk with his wife, and Grebe told him that he had let the matter drift as long as he could and that if he wanted to delay further and talk with his wife to do so that day, and unless he did something he would have to foreclose the mortgage. Hearing nothing more from Mr. Crynes, some forty days later he filed this suit to foreclose.
It follows that the decree of the circuit court must be affirmed.
RAND, C.J., and CAMPBELL and BAILEY, JJ., concur.
Objections to cost bill overruled September 18, 1934 ON OBJECTIONS TO COST BILL ( 35 P.2d 985)
Appellants filed a cost bill aggregating the sum of $100.55, to which objections are interposed by plaintiff. The plaintiff-respondent filed a cost bill claiming costs in the sum of $49.75, to which objections are interposed by appellants upon the ground that this is an equity suit and that it is inequitable to allow any costs and disbursements against these appellants.
The suit was instituted to foreclose a mortgage and the appellants, F.S. Crynes and Effie Crynes, interposed an answer and counterclaim in the sum of $725 as being superior to the interest of the plaintiff mortgagee. The circuit court decreed a foreclosure of the mortgage, denied the counterclaim of appellants F.S. Crynes and Effie Crynes and rendered a judgment for costs against the appellants. The appellants Crynes appealed. Upon the hearing in this court the decree of the circuit court was affirmed and the Crynes failed to prevail or sustain their counterclaim.
Section 7-607, Oregon Code 1930, provides, in substance, that in a suit, costs and disbursements shall be allowed to a party in whose favor a decree is given, in like manner and amount as an action, without reference to the amount recovered or the value of the subject of the suit, unless the court otherwise directs. The decision and decree in this court was favorable to the plaintiff and no order was made absolving the appellants from payment of costs, and, we think, under the circumstances of the case, that none should be made, that the objections of plaintiff-respondent to the appellants' cost bill, as they did not prevail upon the appeal, should be sustained, and the costs claimed by F.S. Crynes and Effie Crynes are disallowed. The plaintiff, who was compelled, in order to foreclose the mortgage, to defend upon the appeal, having prevailed, is entitled to recover costs, and the objections to respondent's cost bill are overruled.
There is no objection filed to the items of cost but to the cost bill as a whole; therefore, there is no necessity for a taxation of the costs.
Respondent is allowed costs in the sum of $49.75.
RAND, C.J., and CAMPBELL and BAILEY, JJ., concur.