Marx v. Bloch

Oregon Supreme Court

Marx v. Bloch

27 P. 164, 21 Or. 86, 1891 Ore. LEXIS 16

DecidedJune 24, 1891

StatusPublished

This text of 27 P. 164 (Marx v. Bloch) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marx v. Bloch, 27 P. 164, 21 Or. 86, 1891 Ore. LEXIS 16 (Or. 1891).

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Opinion

Strahan, C. J.

When the defendant J. W. Dray morV gaged the real property described in the complaint to the plaintiff to secure the payment of money, as against himself and all persons claiming under him by title subsequent, he set apart and appropriated his entire interest in said property to the payment of said debt. It is true that said property stood charged with a paramount claim, namely, the debts of A. Dray, deceased; but as soon as they are paid the rights created by the mortgage take precedence over the right of J. W. Dray either as heir or purchaser of the interests of his brothers. And inasmuch as the fund in court was realized from the sale of the mortgaged premises, as against J. W. Dray, the mortgagor, the same is subject to the lien created by such mortgage. In other words, as against the mortgagor this fund is treated in equity as realty.

The principle that we think applicable to these facts is stated in note 1 to section 1167, Pomeroy’s Eq. Juris, thus: “Where land has been taken, not by voluntary negotiation, but by the compulsory proceedings authorized by statute, and the money paid into court, it continues to be real estate until it is taken out by some person having a right to elect to treat it as money — that is, by some person sui juris who is an unfettered owner. If the owner be an infant, or a lunatic, or if the land be subject to a settlement, the money necessarily retains its character as real estate.” But however this may be, the defendant J. W. Dray, who is the only person beneficially interested in the proceeds of such sale beside the plaintiff, is estopped by the covenants in his deed from claiming either the land or its proceeds as long as the plaintiff’s claim remains unsatisfied. He can [89]*89have no beneficial interest in the land or in its proceeds as long as his debt remains unpaid.

It was argued that the circuit court had no jurisdiction to entertain this suit, and no doubt it is on that point the trial court sustained the demurrer; but we think the objection not well taken. We concede to the county court the fullest jurisdiction oyer the subject matter pending before it. It is to order the payment of all debts due by deceased, the settlement of the accounts of the administrator, and the distribution of the estate of said A. Dray; but the plaintiff’s equity rests upon the acts and transactions of J. W. Dray with him and is against J. W. Dray only except that the administrator is a party as a mere trustee, holding the disputed fund.

The decree of the court below will be reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.

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Strahan, C. J.

When the defendant J. W. Dray morV gaged the real property described in the complaint to the plaintiff to secure the payment of money, as against himself and all persons claiming under him by title subsequent, he set apart and appropriated his entire interest in said property to the payment of said debt. It is true that said property stood charged with a paramount claim, namely, the debts of A. Dray, deceased; but as soon as they are paid the rights created by the mortgage take precedence over the right of J. W. Dray either as heir or purchaser of the interests of his brothers. And inasmuch as the fund in court was realized from the sale of the mortgaged premises, as against J. W. Dray, the mortgagor, the same is subject to the lien created by such mortgage. In other words, as against the mortgagor this fund is treated in equity as realty.

The principle that we think applicable to these facts is stated in note 1 to section 1167, Pomeroy’s Eq. Juris, thus: “Where land has been taken, not by voluntary negotiation, but by the compulsory proceedings authorized by statute, and the money paid into court, it continues to be real estate until it is taken out by some person having a right to elect to treat it as money — that is, by some person sui juris who is an unfettered owner. If the owner be an infant, or a lunatic, or if the land be subject to a settlement, the money necessarily retains its character as real estate.” But however this may be, the defendant J. W. Dray, who is the only person beneficially interested in the proceeds of such sale beside the plaintiff, is estopped by the covenants in his deed from claiming either the land or its proceeds as long as the plaintiff’s claim remains unsatisfied. He can [89]*89have no beneficial interest in the land or in its proceeds as long as his debt remains unpaid.

It was argued that the circuit court had no jurisdiction to entertain this suit, and no doubt it is on that point the trial court sustained the demurrer; but we think the objection not well taken. We concede to the county court the fullest jurisdiction oyer the subject matter pending before it. It is to order the payment of all debts due by deceased, the settlement of the accounts of the administrator, and the distribution of the estate of said A. Dray; but the plaintiff’s equity rests upon the acts and transactions of J. W. Dray with him and is against J. W. Dray only except that the administrator is a party as a mere trustee, holding the disputed fund.

The decree of the court below will be reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.

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Bluebook (online)

27 P. 164, 21 Or. 86, 1891 Ore. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marx-v-bloch-or-1891.