Seaweard v. First Nat. Bank

Mr. Justice Moore delivered the opinion of the court. 1. It is maintained by defendant’s counsel that when the mandate in the foreclosure suit was sent down an opportunity was presented to contest in the lower court the right of the bank to retain the sum of money which it had received as rents, issues, and profits.of the farm in the year 1915, pending the appeal; but no advantage having been taken of that fitting occasion, and such fact having been set forth in the answer herein as a bar to a recovery, an error was committed in awarding — 685 — any part of that sum to the plaintiff. The decree in that suit having been for a strict foreclosure, to be avoided, however, upon the payment within 90 days from the entry in the lower court of our mandate of the amount due the defendant from T. M. Seaweard and E. F. Seaweard, it is possible that upon their application the time might have been enlarged and the decree opened so as to allow them to show, in case there was no conflict in respect thereto, the sum which was so received as rents and profits. Such leniency is not generally indulged and the party seeking redemption under a decree of that kind is required to pay the specified sum of money within the time limited: 2 Wiltsie, Mort. Foreclosure, § 977. In the case at bar a controversy existed as to the credits to which the defendant claimed it was entitled and should withhold from the money which it had received. This sum, it will be remembered, was obtained after the appeal was taken in the foreclosure suit, and for that reason the accounting therefor could not have been heard or determined in the trial of that cause unless it had been sent back for that purpose. The entry of our mandate in the lower court was tantamount to an exercise of a ministerial duty, and while possibly the decree might there have been opened for the purpose of crediting on account of the sum to be paid for redemption the money received as rents and profits pending the appeal, a dispute in respect to the remainder, if any, so to be applied existed, and the determination of that issue, would have been equivalent to the institution, as in this instance, of an action at law to recover money had and received to the use of T. M. Seaweard and E. F. Seaweard, the plaintiff’s assignors. Such a remedy, though equitable in character, could not have been tried in a court of equity to which the case of the — 686 — First National Bank v. Seaweard, 78 Or. 567 (152 Pac. 883), pertained, unless such cause had been remanded for that purpose. Aside from this as the plaintiff was allowed only 90 days after the entry of the mandate within which to redeem the real property from the decree of a strict foreclosure he could not well afford to take the chances of speculating upon a trial of the issue in an action at law as to the amount of credit to which he was justly entitled by reason of the defendant’s collection of the rents, issues, and profits of the farm during the year 1915 and pending the appeal, but was compelled to pay the entire sum demanded in order to protect his rights, and hence no error was committed in the respect alleged. In the case of First Nat. Bank v. Seaweard, 78 Or. 567 (152 Pac. 883), it was held in effect that while a determination of the amount due the plaintiff from the defendants therein on their matured promissory notes was essential, requiring that copies of these obligations should be set forth in the pleadings and the originals offered in evidence, the foreclosure there involved was not based on such notes but upon the conveyance of the farm to an officer of the bank, wherein the deed was treated as a mortgage; and that the promissory notes for $20,000 having been marked “Paid” and surrendered to the makers no attorney’s fee could be predicated even upon the latter negotiable instruments. For that reason the decree in the lower court in that suit allowing $1,500 as such fee was modified by denying a recovery of any sum for that purpose, and as a consequence of the conclusion thus reached by this court preventing that plaintiff from obtaining any part of the costs and disbursements which it had incurred in the prosecution of the suit: — 687 — Section 567, L. O. L.; Spores v. Maude, 81 Or. 11 (158 Pac. 169). 2-4. It will be borne in mind that the plea of res judicata put forth by the reply substantially shows that the foreclosure suit, wherein the defendant in this action was plaintiff and T. M. Seaweard and E. F. Seaweard, who assigned their claim to the plaintiff herein, were defendants, presented an issue as to the right of the bank to recover an attorney fee; that such controversy was ultimately decided on the merits January 18,1916, by this court denying any relief therefor, which facts are to be inferred by setting out in haec verba the decree in that case, thereby supplying an averment to that effect: Fowlkes v. State, 14 Lea (Tenn.), 14. And that the question there considered and determined is the identical dispute here involved. Such statement is sufficient in details to present the question of former adjudication: 9 Ency. Pl. & Pr. 619; 23 Cyc. 1225. A judgment or decree is conclusive not only on those who were parties to the action or suit but also on all persons in privity with them: Schuler v. Ford, 10 Idaho, 739 (80 Pac. 219, 109 Am. St. Rep. 233, 3 Ann. Cas. 336). The test of identity of causes for the purpose of determining the question of res adjudicata is the identity of the facts essential to their maintenance: Harrison v. Remington Paper Co., 140 Fed. 385 (5 Ann. Cas. 314, 3 L. R. A. (N. S.) 954, 72 C. C. A. 405). The allegations of new matter in the reply are deemed to have been controverted as upon a direct denial: Section 95, L. O. L. The stipulations of fact upon which this action was tried contains a clause to the effect that in the suit of the First Nat. Bank v. Seaweard, 78 Or. 567 (152 Pac. 883), plaintiff paid to its attorneys for their services $1,500, which was a reasonable sum for that purpose. ' Considering such agreed statement in — 688 — connection with the issue last referred to the trial court deduced the conclusion of law that the hank was not barred by the former decree from offsetting against the sum of money now sued for the payment so made as attorney’s fees. An inspection of the exhibits mentioned discloses no uncertainty exists in respect to the identical question decided on the merits in that suit, which final determination is controlling herein as the law of the case, as much so in relation to such fee as to the costs and disbursements which the bank incurred in the prosecution of that suit: Powell v. Dayton etc. R. Co., 14 Or. 22 (12 Pac. 83); Thompson v. Hawley, 16 Or. 251 (19 Pac. 84); Murphy v. Albina, 22 Or. 106 (29 Pac. 353, 29 Am. St. Rep. 578); Kane v. Rippey, 22 Or. 299 (29 Pac. 1005); Portland Trust Co. v. Coulter, 23 Or. 131 (31 Pac. 280); Baker County v. Huntington, 48 Or. 593 (87 Pac. 1036, 89 Pac. 144); Baines v. Coos Bay Nav. Co., 49 Or. 192 (89 Pac. 371); Oliver v. Synhorst, 58 Or. 582 (109 Pac. 762, 115 Pac. 594); State v. McDonald, 59 Or. 520 (117 Pac. 281); Meyer v. Livesley, 61 Or. 55 (120 Pac. 749); Benbow v. The James John, 61 Or. 153 (121 Pac. 899); Williams v. Pacific Surety Co., 70 Or. 203 (139 Pac. 934); Hanna v. Alluvial Farm Co., 79 Or. 557 (152 Pac. 103, 156 Pac. 265). 5. The question of attorney’s fees having been considered and finally determined by this court upon the merits on the former appeal the conclusion thus reached is binding upon the defendant herein, which was a party to that suit, and also upon T. M. Seaweard and E. F. Seaweard and their assignee, the plaintiff herein, who took the chose in action with knowledge of their rights in the premises. The allowance, therefore, of any sum as attorney’s fees in this action must — 689 — be denied, and no offset against the sum sued for can be awarded for that purpose. 6. The plaintiff’s counsel complain of the trial court’s allowance of $78.42, or any other sum, as compensation to the defendant for its care of the farm during the pendency of the former appeal and while the bank held possession of the premises. It is argued that the pledgee in possession performed such service for its own benefit and not for the pledgors’ advantage, and hence it is not entitled to any remuneration for such services. A pledgee is a trustee, and under the rule prevailing in England he is not allowed any compensation for labor or trouble bestowed upon the trust estate. Such rule, however, finds little favor in the courts of the several states of the Union, where it is generally held that the trustee cannot recover compensation for services which he personally performs in discharging the trust, but that when others are engaged by him for that purpose he may recover the reasonable value of the services so performed: Gibson’s Case (1 Bland’s Ch. (Md.) 138), 17 Am. Dec. 257, and notes. The legal principle thus stated is not in conflict with the rule announced in the case of Caro v. Wollenberg, 83 Or. 311 (163 Pac. 94), where it was ruled that services personally rendered by a trustee did not constitute a valid charge against the trust estate or the cestui que trust. In the case at bar the defendant being a corporation could not personally care for or superintend the management of the farm, but was compelled to discharge that duty by others for the performance of whose services it is Justly entitled to a reasonable compensation. The sum awarded for that purpose does not exceed the measure allowable, and hence it should not be disturbed. — 690 — It is conceded that the snm of $212.15 is a just claim for money paid out for taxes, repairs, etc., and was properly allowed as an offset against the sum of money received as rents. That sum and $78.42, the compensation for the care of the premises, aggregating $290.57, should, therefore, he deducted from $2,614.16 leaving $2,423.57 as due the plaintiff with interest at 6 per cent per annum from the time this opinion is handed down: Baker County v. Huntington, supra; Sargent v. American Bank and Trust Co., 80 Or. 16, 39 (154 Pac. 759, 156 Pac. 431); Hayden v. City of Astoria, ante, p. 205 (164 Pac. 729). The judgment herein will, therefore, he modified in the particulars specified, and under the amendment of Section 3 of Article VII of the Constitution the cause will be remanded for the purpose of entering such final determination. Modified and Remanded.