Morgan v. Niswonger

COSHOW, J. We believe the law to be well settled in this state that a mortgagor who signs a mort *81 gage containing a covenant to pay the debt secured by tbe mortgage is personally liable for tbat debt: 41 C. J. 393, 394, §§ 221, 223; The Home v. Selling, 91 Or. 428, 439, 440 (179 Pac. 261, 21 A. L. R. 403); Manley v. Smith, 88 Or. 176, 191 (171 Pac. 897); Marshall v. Middleton, 100 Or. 258 (91 Pac. 886, 196 Pac. 830, 19 A. L. R. 1421). Defendants rely upon tbe cases of Wright v. Wimberly, 94 Or. 1 (184 Pac. 740), and Myer v. Beal, 5 Or. 130. Tbe Wright v. Wimberly case was an action to recover judgment for tbe deficiency remaining after foreclosure of a purchase price mortgage and sale of tbe land covered by tbe mortgage. It quotes in page 24 of tbe official report with approval tbe case of Myer v. Beal, above. Tbe opinion in tbe latter case partially supports tbe contention of tbe defendants. It is conceded by defendants tbat tbe language quoted from Myer v. Beal in Wright v. Wimberly was not necessary to a decision of tbe Myer case. Tbe case of Manley v. Smith, above, seems to us to be directly in point. In tbat case tbe defendant Tbad Sweek signed tbe mortgage but did not sign tbe note just as tbe answering defendants in tbe instant case did. There was a covenant in tbe mortgage very similar to if not identical with tbe covenant in the mortgage in tbe case at bar. In the Manley case tbe court used this language: “Tbe argument of tbe defendant tbat tbe contested clause does not operate to charge Tbad Sweek with tbe debt, even if allowed to remain as part of tbe mortgage, is ingenious but not convincing. In our judgment it binds him and tbat seems to have been ibis opinion when be put in bis answer.” We believe tbe Manley case to be decisive of the case at bar. Certainty of tbe law involving titles is most desirable. It would be necessary to overrule *82 the case of Manley v. Smith, above, in order to sustain the ruling of the learned Circuit Court in the case under consideration. We do not feel justified in doing that. Our conclusion does not conflict with either Wright v. Wimberly, above, or Myer v. Beal, above. The case under consideration does not involve a purchase price mortgage as did the case of Wright v. Wimberly. The plaintiff in the case under consideration could have foreclosed the mortgage, sold the land and recovered any deficiency in her judgment after applying the proceeds of said sale. Myer v. Beal does not directly rule that a mortgagee cannot maintain an action to collect amount due on a covenant in a mortgage. That question was not involved in that case. The judgment of the Circuit Court is reversed and the cause remanded to that court with further proceedings consistent with this opinion. Reversed and Remanded.