Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-27


torney and agent for defendant vir-
ginia Watson, it appears to have /
been a custom, when a sale was I
made by The Oregon Land Co. for
Mrs Watson to execute a blank re-
lease of her mortgage thereon; this
was done in many instances. A
printed form of such release was pre-
pared, which would be signed by Mrs.
Watson, and then forwarded to
Charles Scott, who would insert the
description of the particular lot sold.
At one time a release so executed
was forwarded to Scott, who by some
oversight failed to add the descrip-
tion of the property to be released,
and this was not known by the mort
gagee or her agent for a long time
About 1901 Mr.. Morrow was informed
by defendant d. M. Smith that the
mortgage had been fully released
which upon subsequent investigation
he found to so appear of record. This
is corroborated by the testimony of
Charles Scott. Raidabaugh purchased
his land long before the mortgage of
Mrs Watson was released, and 1t
does not appear that he has paid any,
amount on his contract to The Ore
gon Land Company, or to anyone,
since the release of the mortgage was
placed on record on account of such
release by Mrs. Watson. The trial
court found in effect that the mort
gage of Virginia Watson, as to the
two lots in question, was released by
mistake, and without fault on the
part of the mortgagee, and all of the
other defendants had notice and knew
that the lots were subject to Mrs.
Watson's mortgage. From an exam
ination of all the evidence we think
this finding was correct and that the
mortgage of defendant Virginia Wat
son should be reinstated. Pearce v.
Buell., % Or, 20; Kern v. Hotaling,
q Or, 205; Capital laundering Co. v.
Ryan, "a Or, 70; Title Guarantee Co.
v. Wrenn, 35 Or, 81, 75.
In determining the rights of the
parties, much depends upon the con-
struction to be given to the stipula-
tion in the mortgage of defendant
Watson, as to relinquishing the mort
gage in case part of the land should
be sold AS we view it, this in effect
made an apportionment of the
mortgage, SO that lien of $23.75 of
the principal thereof was created on
each acre of the land included in the
mortgage. 1t was evidently the in
tention of the parties that the land
should be plated and subdivided in
to lots, as was done; and this pro-
vision undoubtedly was made in
order that the respective purchasers
of the different lots might, by an in
spection of the records, inform
themselves as to what part of the
mortgage constituted lien thereon.
While the stipulation provides THAI,
| in order to have a portion of the
land released, such IAN amount per
acre as is agreed to by both parties,
not y exceed an average on the
whole tract of $2375 per acre" be
| paid in each, or notes and mortgages
| to Mrs. Watson, it was intended that
II an amount less than the average
should be so paid upon a lot Or lots,
other amounts greater than the
average should be paid at the same
time, or previously, so that in the
aggregate they would equal S23.75
per acre. 1t is obvious that the
$23.75 mentioned in the stipulation
was not for the purpose of limiting
the total sum to be so paid; that
would be wholly unnecessary, as the
note and mortgage showed the
amount in full. This provision was
inserted for the purpose of inform
ing the mortgagor, and any person
who might purchase from the mort
gagor, the amount required to be
paid for a release of the mortgage
upon a lot or portion of the land
Any other meaning would render
nugatory the clause, mot to exceed
an average on the whole tract of
S23.75 per acre. 1t is claimed by
counsel, on behalf of defendant
Watson, that the stipulation in the
mortgage. as to the apportionment
of the debt to the different lots,
when sold, is effective only as be-
tween the mortgagor and the mort
gagee. We do not think this point
is well taken. A similar claim was
made in the case of Barge V. Klaus
man, AZ Minn. 2S1, where it was held
otherwise; that the effect of such a
condition in mortgage was to di-
vide the original debt, so that the
several sums specified might be paid
separately by the mortgagor or his
assigns, in order to secure a dis
charge Of such encumbrances. See
also: Webber V, 0'Neil, 10 Grants
G. R. 440, and Andreas V. Hubbard,
so Conn, 351. A mortgage may
consent to the apportionment of the
debt, and such an agreement, upon a
strict compliance with the conditions
thereof, is valid and enforcible. This
right inures to the benefit of the
: grantee of part of the mortgaged
land, although not to a purchaser of
the premises at an execution sale.
q Cyc. 1866; 1415. When a mort
gage contains no such stipulation,
and the debt secured is not in any