Haynes v. Whitsett , 18 Or. 454 ( 1890 )

Strahan, J.

It will be observed from the foregoing statement that every person who had an estate in or title to the premises in controversy has acquiesced in the decree in favor of the plaintiff; and if the doctrine of Humphreys v. Taylor, 5 Or. 260, were applied to this case, as I am inclined to think it ought to be, the appellant, as administrator of J. H. Whitsett, deceased, would have no standing in this court to prosecute this appeal, or interpose the defense upon -which he relies. But, waiving that question and assuming that he has such standing, all of the equities of the case are with the plaintiff. No one can read the evidence and apply ordinary common sense to this transaction, and then doubt for one moment as to the merits of the plaintiffs case. There is no question of law arising upon the evidence that it is necessary to discuss, and therefore a particular statement of the facts, as they appear in evidence, is unnecessary.

Counsel for appellant was inclined to apply a very stringent and highly technical rule both to the pleading on the part of the plaintiff as well as to the evidence offered to support it. There -was no demurrer to the pleading in the court below, and, as far as I am aide to discover, this objection to the evidence is made here for the first time. Under such circumstances, such objections do not receive so favorable a consideration as if made at the first opportunity that the party has to make them. Counsel for appellant especially insisted upon the argument here that this court, after reforming the mortgages, ought to direct the county court of Douglas county, where the administration is pending, to apply the proceeds of the sale to Marks and Wollenberg in payment of the plaintiff’s claim, and that a resale under a decree of foreclosure would thus be avoided. No authority was cited for this, nor was it shown in what lawful manner it can be accomplished. It may be sufficient to say in answer to this suggestion that it is contrary to one of the most important rules upon which courts of equity proceed in die administration of justice; and that is, when they acquire jurisdiction for one purpose, they maintain it for all purposes, and administer complete relief. They neither invoke the aid of other courts or permit their interference with their process.

Finally, counsel for appellant insisted that Marks and Wollenberg were bona fide purchasers for value, without notice of the plaintiff’s equity. There are two answers to this objection. The first is that it is a defense personal to Marks and Wollenberg, or those in privity with diem, and no person other than themselves, or some one deriving title to the premises through them, could be heard to make such defense; and the other is, that Marks and Wollenberg have not appealed from the decree, and their interests are not before ns; neither have they paid their money or received a deed.

Let the decree appealed from be affirmed.