Gennes v. Peterson

Mr. Justice Slater delivered the opinion of the court. It is claimed in the appellants’ brief that, at the time the land was attached in the original action against Peterson, he had made his final proof, paid the government price for the land in controversy, and had received the receiver’s final receipt under the act of Congress known as the “timber and stone act” (Act June 3, 1878, c. 151, § 1; [20 Stat. 89: U. S. Comp. St. 1901, p. 1545]). and upon this assumption under the holding of this court in Budd v. Gallier, 50 Or. 42 (89 Pac. 638), it is maintained that Peterson had no attachable interest in the land. There is nothing in the record, however, to establish the facts upon which the argument is based; but, if there were, we have come to the conclusion that the court had no jurisdiction to try the question of an adverse legal title originating prior to the execution of the mortgage which is sought to be foreclosed. When defendants alleged in their answer that they claimed a legal title paramount to the title of Peterson at the time he executed the mortgage to plaintiffs, and asked that the suit be dismissed as to them, it was the duty of the court to grant their prayer. The only proper object of a suit to foreclose a mortgage is to bar the mortgagor and those claiming under.him; and adverse claims, whether originating under a conveyance by a third party prior to the mortgage, or subsequent to it, or under a conveyance by the mortgagor made prior to the mortgage, are generally matters of purely legal jurisdiction, and do not come within the cognizance of a court of equity. Corning v. Smith, 6 N. Y. 82; Emigrant Ind. Sav. Bank v. Goldman, 75 N. Y. 127; Ord v. Bartlett, 83 Cal. 428 (23 Pac. 705) ; Tinsley v. Atlantic Mines Co., 20 Colo. App: 61 (77 Pac. 12) ; 2 Jones Mortgages, (6 ed.) § 1445; Wiltsie, Mortgage Foreclosure (Kerr’s Supp.) § 418. [381] At the close of section 1440 of 2 Jones, Mortgages, that author says: “It has been claimed, however, that when one has been made a defendant in a foreclosure suit, and has set up by answer a paramount title, and without objections has gone to trial upon that issue, he cannot, if beaten, ask a reversal on the ground that the issue was not properly triable in that action; but the authorities do not sustain this view. All the title a mortgagee can obtain by foreclosure is the title of his mortgagor, and that is the only title that can be considered in the foreclosure suit.” We are of the opinion, however, that the question there suggested is not before us, .because these defendants, while they alleged a paramount title, did not ask that it be adjudicated and determined, but that the suit be dismissed as to them. They offered sufficient evidence to show the origin of their claim of title, and that it antedated the giving of the mortgage. Whether it amounted to a title was not for the court to determine, but, for lack of power to adjudicate the matter, it was bound to dismiss the suit as to these defendants. The decree will therefore be reversed so far as it affects them; but, as to the foreclosure of the mortgage, it is allowed to stand without prejudice to the rights of these defendants originating prior to the execution of the mortgage. Reversed.