Ford v. Grimes , 109 Or. App. 692 ( 1991 )

PER CURIAM

Defendant appeals a judgment that quieted title to real property in plaintiff, awarded plaintiff past due rent and dismissed defendant’s counterclaims. Defendant’s first two assignments of error relate to her counterclaims for a declaration of an equitable mortgage and a constructive trust, each of which must be proved by clear and convincing evidence. See Albino v. Albino, 279 Or 537, 550, 568 P2d 1344 (1977); Blue River Sawmills et al v. Gates et al, 225 Or 439, 447, 358 P2d 239 (1961). On de novo review, we conclude that there is no clear and convincing evidence of an equitable mortgage or a constructive trust.

Defendant next argues that there is no evidence to support the $5,400 judgment for past due rent.¹ Plaintiff testified that defendant and her husband paid the house loan payments of $449.89 per month to the escrow agent in lieu of rent. There is no other evidence regarding the amount of past due rent. Therefore, plaintiff is entitled only to a judgment of $4,049.01 for arrearages in rent from July 1, 1989, through March 30, 1990.

Reversed and remanded with instructions to enter amended judgment awarding plaintiff the sum of $4,049.01; otherwise affirmed.

1 The trial court awarded past due rent ancillary to granting relief in the quiet title claim, an equitable proceeding. Therefore, our review is de novo. See Wittick v. Miles, 274 Or 1, 5, 545 P2d 121 (1976); Cobra Building & Devel., Inc. v. City of Salem, 59 Or App 441, 443, 651 P2d 150, rev den 294 Or 295 (1982).