Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-27
OREGON SUPREME COURT DECISIONS
by Courtesy of F. A. Turner Reporter
Supreme Court

benefit of its creditors to plaintiff
Charles Scott, and the note and mort
gage of d. NJ. Smith to the Land Com
pany, coming into Scott's hands, as
such assignee, on the 9Th day of
March, 1903, he commenced suit to
foreclose the mortgage.
Defendant Virginia Watson, an
swering plaintiffs complaint denies
the parts material to her defense,
and affirmatively alleges that she
held the first mortgage executed to
her. as above mentioned, upon the
real property in question; that var
ious payments had been made upon
the note secured by such mortgage,
until March 4, 1911, there was due
thereon as principal and interest
about $2,S1490, the only security for
which was the real property de-
scribed. Mrs. Watson further al
leges that lots 80 and 40 were re-
leased from the mortgage by mistake
without carelessness on her part, and
that the parties taking title to the
property since the date of release
took the same knowing of the mis-
take; were not purchasers in good
faith or for valuable consideration,
or without notice. and she prays that
the release be cancelled; that the
mortgage be reinstated, and that it be
foreclosed for the total amount due
and unpaid on the note, together with
reasonable attorneys fees.
Defendant d. M. Smith and others
fvaNa N,1 Ii
some Of the allegations of the COM
plant and set forth the stipulation in
Mrs. Watson's mortgage for the. re-
lease of lots sold by the company,
and the deed by the company to de-
fendant D. M. Smith of July 29th,
1897, the execution of the mortgage
Of 1850 in favor of The Oregon Land
Company, which was intended to be
transferred to Mrs Watson for the
purpose of releasing the lots from
her mortgage. Smith asserts he was
not indebted to The Oregon Land
Company in any sum; further assert
ing the failure Of The Oregon Land
Comnany to deliver the note and
mortgage to Mrs, Watson; that de-
PENDANTS Abe Smith and wife and E.
e. Barnett and wife purchased said
lots on the faith Of the satisfaction Of
the mortgage of Mrs. Watson, which
satisfaction of mortgage is alleged to
be mistake, and that they are bona
fide purchasers for value.
Defendant Raidabaugh in addition
to the statement already made con-
cerning his contract, claims by his
answer that the balance due on De-
cember 2, 1908, after making various
payments, was $4S2.53, and that The
Oregon Land Company agreed upon
his compliance with the conditions of
the contract, to execute and deliver
to him a good and sufficient warranty
deed to the lots. 1t is further al
legged, and also found by the trial
court that Raidebaugh is now, and at
all times mentioned has been, ready
willing and able, upon the execution
and delivery to him of the deed, to
pay the amount due on his contract;
that all of the defendants interested
had full knowledge and notice of the
insolvency of The Oregon Land Com
pany, and that with full knowledge
and notice of such fact, all the pay
ments made by Raidabaugh were re-
ceived; that the deeds to d. M. Smith
and to the other defendants were
made with the full and complete
knowledge and notice of the existence
of Raidabaugh's contract and his in
terest in the premises; without any
consideration therefor, and their in
interest in the lots is inferior to that
of defendant Raidabaugh; that Raid
abaugh has not paid the amount due
! upon his contract, for the reason that
the Land Company and all the other
defendants, have at all times beer
and are unable to perform any of the
conditions on their part of the con.
tract. In 1903 Raidabaugh rendered
/ to the assignee the full amount Of
principal and interest then due upor
( his contract, and demanded deed, as
therein provided, which deed was re.
fused.
The different parties filed replies
putting in issue the material allega.
tons of the several answers. From
a decree, reinstating Virginia Wat
sons mortgage, and providing for {
conveyance to defendant Raidabaugi
of the lots, upon the payment of S41i
and attorneys fees of $50, all the
parties appeal except defendan
Raidabaugh.
Bean, j.. From the testimony o
Robert G. Morrow, then acting as at