Wright v. Conservative Invest. Co.

Opinion by Mr. Commissioner Slater. 1. This is a suit by a trustee of an express trust to foreclose a mortgage made in her name for the benefit of others, and by the provisions of Section 29, B. & C. Comp., she can maintain the suit without joining the persons for whose benefit the suit is prosecuted: Holladay v. Davis, 5 Or. 40; Considerant v. Brisbane, 22 N. Y. 389. The object of the suit is to reduce to the possession of the trustee the subject-matter of the trust so as to enable her to make thereafter an accounting with the beneficiary ■or beneficiaries of the trust, and it in no -way affects the trustee’s relation with her cestuis que trustent. and for that reason it is not necessary that the latter be made parties: 22 Enc. Pl. & Pr. 163. The collateral issues, therefore, attempted to be made by the pleadings as to who were the beneficiaries of the trust, and the present interest of either therein, are entirely foreign to the object of the suit, and should have been disregarded by the court .as immaterial. 2. Nor, in any event, could such issues have been legally ■determined as against C. Meng, an alleged beneficiary, without having made him a part)’, which was not done. 3. The decree was in plaintiff’s favor for the recovery of the amount of the note, the taxes, without interest, and $30, attor [180] ney’s fee, and for the foreclosure of the mortgage against all the defendants except Isabella Eowley, but as to her the suit was dismissed with judgment in her favor for costs. The principal objection made by plaintiff to the decree is that the suit was dismissed as to Isabella Eowley. She was made a party defendant, evidently, not because of any claim by her of an interest in the note and mortgage, the subject of the suit, and which claim of interest was attempted to be litigated by the parties and determined by the court, but because she had or claimed to have some interest in or lien upon the mortgaged property. In order that the foreclosure might be complete and a perfect title transferred by the sale, it is necessary that the holder off every such right or interest should be brought before the court: 2 Jones, Mortgages (4 ed.), § 1394; Pomeroy, Code Eem. (4 ed.), § 239, *342. The allegation of the complaint is: “The defendants, each or all of them, have or claim some interest, equity, right, estate or claim in or to the land described in said mortgage, but plaintiff’s said mortgage lien thereon is prior and superior to any lien, claim, estate, right or equity of the defendants in or to the said lands or of either of defendants therein.” This is a sufficient allegation on the part of the plaintiff to require each defendant to appear and disclose whatever interest or claim he may have or be forever barred from thereafter asserting it: Horton v. Long, 2 Wash. 435 (27 Pac. 271: 26 Am. St. Rep. 867). 4. The defendant Isabella Eowley by her answer failed to deny this allegation of the complaint, and thereby she admitted the truth of the facts therein set forth: B. & C. Comp. § 95. Having admitted that she has or claims to have some interest in or lien upon the mortgaged premises and that such interest or claim is subsequent and inferior to plaintiff’s mortgage, she was not entitled to a dismissal of the complaint, nor to recover her costs and disbursements, but the plaintiff is entitled to a foreclosure against her as well as against the other defendants. 5. Objection is also made to the allowance of only $30 for attorney’s fees, and plaintiff claims that she is entitled to the [181] full sum alleged and claimed in the complaint, to wit, $50. The answer of the defendant corporations by a form of general denial has put that allegation of the complaint in issue. This is an issue of fact that must be resolved and determined by the evidence in the same manner as any other question of fact. When there is an issue in the pleadings as to what is a reasonable attorney’s fee, some evidence must be introduced on the subject to sustain an allowance of any sum beyond the amount fixed by statute (Bradtfeldt v. Cooke, 27 Or. 194: 44 Pac. 1: 50 Am. St. Rep. 701), and such testimony must be presented to the jury, and it is their right to determine that as they do other disputed questions of fact, so that the court cannot include in a judgment an allowance for attorney’s fees when.the jury did not fix the amount in their verdict: Fiore v. Ladd, 29 Or. 528 (46 Pac. 144). To the same effect is First National Bank v. Mack, 35 Or. 122 (57 Pac. 326). To sustain the issue on plaintiff’s part, R. C. Wright testified as follows: “I am an attorney of the Supreme Court of the State of Oregon, and have practiced since 1890 in the state, and $50 is a reasonable attorney’s fee to be allowed the plaintiff for the expense and trouble of this suit, and especially so as it has been necessary to send an attorney from Portland.” No other testimony was offered by either party on this question, and, in our opinion, it is sufficient to make a prima facie case for the plaintiff. But the lower court disregarded the effect of this testimony, and, presumably based upon its own knowledge as to what is a reasonable fee, allowed only $30. The determination of the issue, however, is not within the discretion of the court, but whatever finding is made thereon must be the legal effect of the evidence. In this instance the only evidence being that on the part of the plaintiff tending to establish the amount alleged as the .reasonable value of the .attorney’s fee, the court was legally bound to find that amount, and could not in its own discretion find a smaller amount. [182] 6. Plaintiff also claims interest at the legal rate upon the taxes paid by her, and as to her right to such interest we have no question. . The decree, therefore, should be modified accordingly. Modified.