But the record does not show that this deed purported to convey the property in question.

This language is in the transcript: "The court said: Mr. Langworthy has sent me a deed made by Mr. Belyea to Mr. Franklin, but says in his letter that he does not find any other, but is confident that he has it in his possession."

If the deed referred to by the court should be considered in evidence, still the record would not show a prior conveyance of the property in controversy.

But there is no legal evidence of a conveyance antecedent to the one from Belyea to plaintiff.

We cannot say the court erred in refusing to find that Mrs. Belyea purchased the property of John Egan, and that she did not authorize her husband, Parker Belyea, to convey the same to plaintiff. The evidence was conflicting, as before stated, and we cannot disturb the court's conclusions.

It is said the court's so-called findings of fact are merely conclusions of law, and so they are.

But if appellant was dissatisfied with them he ought to have asked for others. Failing to do so, he cannot now complain. Judgment and order appealed from affirmed.

SUPREME COURT OF OREGON.

SELLWOOD v. GRAY ET AL.

Filed November 26, 1884.

MORTGAGE EFFECT OF-IS MERE SECURITY.-In this state a mortgage works no change in the ownership of the property. It is a mere security for the repayment of a debt, and serves simply to create a lien or incumbrance upon the property mortgaged.

THE SAME FORECLOSURE SALE-JUNIOR INCUMBRANCERS.-A sale under a decree foreclosing a mortgage conveys all the interest of the mortgagor in the premises mortgaged, subject only to the right of junior lienholders to redeem.

THE SAME ACTION AGAINST JUNIOR INCUMBRANCERS.-A purchaser at a sale under a foreclosure suit, whether upon his own mortgage or not, to which a subsequent incumbrancer was not made a party, may maintain a suit to compel such subsequent incumbrancer to redeem or be foreclosed. If, however, the senior mortgagee has, since the sale, realized upon other securities given him by the mortgagor, the proceeds of which were applied in payment of the mortgage debt, his right to compel such subsequent incumbrancer to redeem or be foreclosed, is lost.

APPEAL from Multnomah county. The opinion states the facts. W. W. Chapman, for the appellant.

H. B. Nicholas, for the respondents.

LORD, J. This is a suit instituted by the plaintiff, as a senior mortgagee, to compel the defendants to redeem his mortgage, or that they be foreclosed. The facts out of which the controversy arose are: That, on the first day of February, 1875, the plaintiff loaned to C. M. Carter the sum of three thousand dollars, and took a note therefor, payable two years after the said date, with interest

at the rate of one per cent. per month, payable monthly, secured by a mortgage on blocks 133 and 110, Caruther's addition, and blocks 35, 47 and 58, in Carter's addition to the city of Portland. That, by the terms of said mortgage, default in the payment of any installment of interest should render the entire sum of the principal and interest, then accrued, due, and the mortgage might be foreclosed. That, on the twenty-fourth day of January, 1877, the plaintiff commenced suit to foreclose said mortgage against Carter and wife, who executed the mortgage, and Geo. P. Gray, one of the defendants in this suit, who had in the meantime obtained judgment against Carter, which was a lien on his interest in the mortgaged property. Gray was not served with the summons, and made no appearance in the suit. That, on the twenty-fourth day of February, 1877, a decree was rendered by the court, in said suit, in favor of the plaintiff for the amout due on the note and attorneys' fees, and directing a sale of the mortgaged property to satisfy the same. That in pursuance of such decree, and on the ninth day of March, 1877, the said property was sold by the sheriff, and the plaintiff became the purchaser for the sum of seven hundred and fifty dollars, and, after due confirmation of such sale, received a sheriff's deed for the property, and entered into the possession of the premises. Subsequently, Gray caused an execution to be issued upon his judgment, which was a junior lien, and sold the same property on the eleventh day of February, 1878, and the defendant Delashmutt became the purchaser for the sum of thirty-two dollars; on the sixteenth day of May, 1878, received a sheriff's deed for the property.

At the time of making the loan to Carter, the plaintiff received from him, by assignment, as additional and collateral security for the repayment of such loan three promissory notes against P. A. Marquam, amounting altogether to the sum of two thousand four and fifty dollars bearing date December 11, 1874, and payable two years and ten months thereafter with interest at the rate of ten per cent. per annum, secured by mortgage upon the real property of the said Marquam. That on the fourth day of April, 1879, the plaintiff without any knowledge, as he alleges, of the sale under the judgment of the defendant Gray, entered an acknowledgment of satisfaction upon the margin of the decree entered in the foreclosure suit, in words to wit: "Full payment and satisfaction of this judgment is hereby acknowledged. That on the eighth day of September, 1878, the plaintiff executed a quit claim deed for block one hundred and thirty-three in Caruthers Addition to D. P. Thompson for the consideration of one thousand dollars. The defendant Delashmitt, afterwards recovered possession of the property in an action of ejectment against Sellwood, the plaintiff herein, and the said D. P. Thompson, and subsequently conveyed by quit claim said block one hundred and thirty-three back to the said Thompson. Upon this state of facts the plaintiff has brought this suit for the purpose of compelling the defendant to redeem his mortgage for the

full amount and accruing interest, or else that a decree of foreclosure be entered against them barring all their rights and interests in the mortgaged property.

As preliminary to and for better understanding of the question involved, and to be decided, it will be necessary to ascertain the legal and equitable relations which the parties respectively occupy to each other. In this state a mortgage does not operate as at common law, to vest in the mortgagee an estate upon condition the breach of which works a forfeiture, and the estate becomes absolute. It is in fact what the parties intended and as equity treated it, a mere security for the repayment of the debt or obligation and serves simply to create a lien or incumbrance upon the property. The title both before and after condition broken remains in the mortgagor until foreclosure and judicial sale. The mortgage works no change in the ownership of the property. It is still the property of the mortgagor in law and in equity, is liable for his debts, may be sold under execution, or conveyed or devised, is subject to dower, or may be again mortgaged, as any other estate in land. Nor do any of the qualities or incidents of an estate in land attach in the mortgagee; he has but a lien upon the land as a security for repayment and which cannot operate to affect the possession of the mortgagor without his consent, or to transfer his estate in the land except after default and by force of a judicial sale under a decree of foreclosure. But before such proceedings are had, payment of the debt by the mortgagor will extinguish the lien, and free the estate from the mortgage.

Although this right of the mortgagor to intervene after default, and before judicial sentence, and discharge the mortgage, is usually termed his "equity of redemption," it is not so, in fact or in equity, in the sense which recognized the legal estate in the mortgager defensible before and absolute after default, and which, on the condition of paying his debt, allowed him to redeem a forfeited estate and demand a reconveyance: Kortoryht v. Kaday, 21 N. Y., 365. His equity of redemption is the right to redeem from the mortgage, to pay off the mortgage debt, until this right is barred by a decree of foreclosure, but until this right is barred, his estate in law or in equity is just the same after as it was before default. It is a right, though, of which the law takes no cognizance, and is enforceable only in equity, and has nothing to do with our statute of redemptions: Wiley Banks & Co. v. Ewing, et al., 47 Ala., 418; Ansen v. Anson, 20 Iowa, 56. This is a valuable right, and exists not only in the mortgagor himself, but in every other person who has an interest in, or legal, or equitable lien upon the mortgaged premises, and includes judgment creditors, all of whom may insist upon a redemption of the mortgage: 4 Kent's Com., 162; 2 Story's Eq., sec. 1,023; Willard's Equity Jur., 447; Holmes v. Byber, 34 Mo., 262. Nor can one against his consent be deprived of this right without due process of law. To bar his right of redemption, he must be made a party to the foreclosure, or the proceeding as to

him will be a nullity: Jones on Mort., sec's 1,047, 1,395-6. When, therefore, the plaintiff instituted this suit of foreclosure, against Carter, the mortgagee, and obtained a decree for the sale of the property, without making the defendant, Gray, a party, the proceeding as to him was a nullity. But the sale effected some important results. Except as to the defendant, Gray, who was not bound by it, it had operated to cut off the right of the mortgagor to redeem, and to change the ownership of the property from the mortgagor to the mortgagee who had become the purchaser. The relations of the parties were changed, and stood thus: As to the defendant, Gray, it stood as if no such sale had been made; he had a right to redeem upon paying the amount of the incumbrance. The plaintiff, as purchaser at the foreclosure sale, took all the rights of his senior mortgage, and so much of the mortgagor's equity of redemption as was not bound by the subsequent lien of the defendant, Gray.

In Vroom v. Ditmas, 4 Paige, 531, the chancellor says: "The effect of a statute foreclosure is to transfer to the purchaser the rights of the mortgagee, so far as he has any claim or interest in the mortgaged premises, for the security of his debt, and also to transfer to him so much of the equity of redemption as would not be bound by the lien of a junior mortgage or judgment. The title which Bacon acquired in this case under the sale to him, was therefore precisely the same as if he had taken an assignment of Watson's mortgage, and the deed of Ditmas and wife of all their interest in the premises, subject, of course, to the right of any intermediate incumbrances by mortgage or judgment to redeem the promises by the payment of the amount due on the Watson mortgage, with interest thereon, if the legal claims of such incumbrances were not paid. So here, the title which this plaintiff acquired under the sale to him, was precisely the same as a third party would have acquired at such sale by the assignment of his mortgage, and the deed of Carter and wife of all their interest in the premises, subject only to the right of the defendant Gray as a junior lien-holder to redeem: 2 Hilliard on Mort., 158, sec. 56; Gower v. Winchester, 33 Iowa, 303; Rogers v. Holyoke, 13 Minn., 225. He had all the estate of the mortgagor and mortgagee, subject only to the lien of the Gray judgment, and the right of redemption under it. As all persons otherwise entitled, who were not made parties to the suit, may redeem after and notwithstanding a foreclosure and sale: Pom. Eq. Jr., sec. 1,220 and note; so does the corresponding right belong to the purchaser at a sale under a foreclosure suit, whether upon his mortgage or not, to which a subsequent incumbrancer was not made a party to maintain a suit to compel such subsequent incumbrancer to redeem or be foreclosed: Parker v. Child, 25 N. J. Eq., 41; Shaw v. Heidy, 48 Iowa, 468. In such a suit the rights of the senior mortgagor are the equivalent of the junior in the enforcement of the remedy for redemption. One can require the other to redeem from the mortgage or be foreclosed of his right of redemption, and the other, upon paying or tendering the amount of the

mortgage debt, is entitled to redeem and be subrogated to the rights of the mortgagor. "The party offering to redeem," says Bradley, J., in Collins v. Riggs, 14 Wall., 491, "proceeds upon the hypothesis that as to him the mortgage has never been foreclosed, and is still in existence; therefore, he can only lift it by paying it:" Knowles v. Robbin, 20 Iowa, 101; Gage v. Brewster, 31 N. Y., 218; Johnson v. Harmon, 19 Iowa, 56; Holmes v. Byber, 34 Md., 262. The party, therefore, seeking to compel the junior incumbrancer to redeem must proceed upon a like hypothesis, that his mortgage as to such incumbrancer has never been foreclosed, and is still in existence and unpaid. And this is the ground upon which the plaintiff must stand in this case. Except as against the defendant and those claiming under him, he has got the title or estate of a mortgagor and mortgagee, and he must prevail in this suit unless the mortgage has been paid and discharged.

In Benedict v. Gilman, 4 Paige, 61, the chancellor says: "Under a statute foreclosure, if there are judgments subsequent to the mortgage which remain a lien upon the property at the time of the sale, under the statute the purchaser takes the whole legal and equitable interest in the property as against the mortgagor and all persons claiming under him, subject, however, to the equitable rights of the judgment creditors to redeem in the same manner as if such foreclosure had not taken place. The amount which such judgment creditors are to pay upon the redemption of the premises does not depend upon the sum bid at the sale, but is regulated by the amount actually due at the time of such sale, unless it has been subsequently paid by the person who was equitably bound to pay the same." In Bradley v. Snyder et al, 14 Ill., 267, the court in commenting upon and applying Benedict v. Gilman, supra, said: "So, here, unless Thompson, the mortgagor has paid the balance due upon the mortgage after the sale, the present complainants must pay it as well as the purchase money in order to redeem, except the costs of forclosure, for which they are not responsible, for they were not parties." And so we must say in this case, unless Carter, the mortgagor, has paid the balance due upon the mortgage after the sale, the defendants must pay it as well as the purchase money or else be foreclosed of their right to redeem. It therefore becomes the duty of the plaintiff in this suit to show by proper evidence the amount due on his mortgage, and which the defendants must redeeem or be foreclosed of their equity of redemption, as the object of the suit is to cut off this right to redeem or in the event of redemption to dis tribute the money between the mortgagee and the purchrser in equitable proportions, so as to reimburse the latter his purchase money and pay the former the balance of his debt:" Collins v. Riggs

supra.

The evidence disclosed by the record, is to the effect that at the time of the execution of the mortgage to the plaintiff by Carter, the mortgagor, that, to secure the plaintiff from any loss upon his loan and to pay the mortgaged debt in the event the property should