Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-10

that any of the demendants ever re-
ceived any of the debts or profits, or
were even in possession of the lands
in dispuate. So far as that is con-
cerned, it is, from the complaint, Just
as apparent that the plaintiff should
make such an accounting as that the
defendant should The bill is mani
testify, in substance, one exhibited for
the purpose of redeeming the land
from the effect of the foreclosure
sale in question. II it were not so.
why should 1t go to such extreme
particularly in relating the history
of the title and setting out the
claims of the defendants, and then
pray for decree enjoining the de-
PENDANTS from claiming any right or
title in the premises?
For the purposes of this opinion, It
Is not necessary to determine wheth-
er the Congregation Seminary at
Forest Grove" is a sufficient deslgna-
ton of the plaintiff. The first Ques-
ton which presents itself is, what
was the effect of the foreclosure of
Keene's mortgage without making
the plaintiff there a party to that
suit?
We are told in DeLashmutt v. Sell
wood, 10 Or 1876, that the true doc
trine in this state is that a junior
lien holder is not in any way affected
by the proceedings to foreclose, to
which he Is not party; that his
right to sell on execution and con-
vey the title remains unimpaired;
and that as to the purchaser at the
sale under his Judgment, the pur-
chaser at the prior sale under the de-
cree of foreclosure must be consid-
cred as an assignee of the mortgage,
and successor in interest of the mort
gagor, simply, and as in the same po-
sition he would have occupied had
he taken a simple assignment of the
mortgage from the owner, and a con-
veyance of title from the mortgagor,
and made no attempt to foreclose
! In that case, the purchaser at a
sale under an execution, issued upon
a junior judgment, the owner of
which had not been made a party to
the foreclosure, was sustained in his
possession of the land as against the
purchaser at the foreclosure sale, al
though the mortgage foreclosed was
prior in effect to the Judgment.
This learning is further exempli-
fed in Sellwood " Gray in IL Or
539. This case grew out of the same
proceeding in question in DeLash-
mutt V. Sellwood, supra, and it was
held in the later case, that when the
plaintiff in the foreclosure suit OBJ
tanned a decree for the sale of prop
erty without making the defendant
Gray party, the proceeding as to
him was a nullity; but that the sale
effected some important results, in
this: that as to the defendant Gray
it stood as if no such sale had been
made. He had right to redeem by
paying the amount of the encum-
brance. The plaintiff as purchaser
at the foreclosure and sale took all
the rights of his senior mortgage
and so much of the mortgagor's equi-
ty of redemption as was not bound by
the subsequent lien of the defendant
Gray.
Still further, in Osborn v. LOCUS
2S Or. 80, this court says that the
! owner of the equity or redemption il
an indispensable party and withou
/ him the suit cannot proceed. Subse
, quent lienors are considered neces
sary parties. but their absence from
= the record does not perforce of tina
: fact render the proceedings nullity
) In Wilson v. Tartar, % Or. 504, {
; purchaser at foreclosure sale, il