Anderson v. Phegley ( 1914 )

Mr. Justice Eakin

delivered the opinion of the court.

Defendant’s contention seems to be that the rights of the parties shall be determined by the legal effect of the foreclosure sale and relative rights of redemption, to the exclusion of the agreement of March 16, 1907, and that plaintiffs lost all rights in the property by their failure to redeem from the foreclosure sale within the statutory period; but that would be entirely contrary to the intention of the parties and to the conditions of the agreements. The trial court called the transaction an equitable mortgage, but we consider the agreements as well as the title obtained by Phegley at the foreclosure sale as creating a trust, and that a court should so treat it and deal out equity upon it, as expressly agreed by Phegley immediately after the mortgage sale, when he and plaintiffs signed an agreement reciting the liens and their priorities; that “the said property was so bid'in by the said Grant Phegley under and in compliance with the terms of their said agreement of March 16, 1907, and, as trustee for the said Anderson, Williamson, Phillip, and Phegley, the said parties do hereby receipt to Joseph Russell, sheriff of Josephine County, Oregon, the officer making the sale, for the sum of $15,432.56.” Phegley executed to the plaintiffs a further statement of the same date that he bought at a foreclosure sale certain properties belonging to the Galice Consolidated Mines Company “for the aggregate sum of $15,432.56, of which said sum the said Grant Phegley is entitled to a priority to the amount of $2,550.63, the said Anderson, Williamson, and Phillip are next entitled to the sum of $5,961.93, and the said Grant Phegley is thereafter entitled to the balance of $6,920, and the said Grant Phegley * * shall and will hold the said property in trust for himself and the said Anderson, Williamson and Phillip, as their interests appear, respectively, in said decree of foreclosure and order of sale, and in accordance with the terms of a certain agreement between the parties of date March 16, 1907, to which agreement this memorandum shall be attached as part thereof.” It is not possible to misunderstand the agreements and intentions of the parties, and they should both be held to abide by them, whether the situation be called an equitable mortgage or a trust.

On petition for rehearing there was a brief over the names of Messrs. Teal, Minor & Winfree, Messrs. Beach, Simon & Nelson and Messrs. Bronaugh & Bronaugh, with an oral argument by Mr. Andrew B. Win-free. Contra, there was a brief over the names of Mr. William C. Hale and Mr. George R. Durham, with an oral argument by Mr. Rale.

The decree is a proper one, and is affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.