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tion of a void law: White v. Commissioners, 13 Or. 317, 10 Pac. 484, 57 Am. Rep. 20. But where no private right is invaded a private individual can not maintain an injunction against such public officer, and the state, when suing in its corporate capacity for the protection of its property rights upon the relation of a private individual, stands in no different or better position than an individual: State v. Lord, 28 Or. 508, 43 Pac. 471.

But a suit may be maintained by the state in its sovereign capacity, on the relation of its executive officer, to enjoin the payment of money from the state treasury on a warrant issued in pursuance of an act of the legislature, which is claimed to be in violation of the state constitution, without showing any injury other than that public funds are about to be applied to a use, for a purpose, or at a place prohibited by the constitution: State v. Metschan, 32 Or. 383, 46 Pac. 791. The court in this latter case criticises the statements of the opinion in the case of the State v. Lord, supra. The location of the site for a public building, the purchase of a tract of land therefor at that place, the employment of an architect to draw plans, etc., for the building, and the letting of contracts therefor by the governor, are matters governmental and executive in their nature, with which the courts can not interfere by injunction; for it is now settled by a general concensus of authorities that in the execution of duties, the performance of which require the exercise of judgment or discretion, or in political or governmental matters pertaining to and affecting the welfare of the whole people, the executive is not subject to control by the courts: State v. Lord, supra.

The mere signature of the attorney-general, or other public law officer in his official capacity, to a complaint or bill shown to be that of a private relator, is not sufficient to impress it with the functions and capacity of an information competent to put in motion the machinery of the courts, whereby they will take cognizance of questions pertaining to the high prerogative powers of the state, or affecting the whole people in their sovereign capacity: State v. Lord,


A taxpayer may restrain the council from proceeding in the purchase and erection of certain public improvements, confided by the municipal charter to the judgment and discretion of such city council, when it is not exercising its discretion but is arbitrarily wasting public funds, since such conduct is a gross and manifest abuse of power, amounting to a legal fraud on the taxpayers: Avery v. Job, 25 Or. 512, 36 Pac. 293.

The collection of the illegal issue of bonds, or county warrants, will be enjoined at the suit of a taxpayer: Dorothy v. Pierce, 27 Or. 373, 41 Pac. 668.

As a rule a ministerial officer will not be restrained from doing that which the law requires as a part of his duty. Thus, a road supervisor, acting in good faith, can not be enjoined from taking soil and gravel from neighboring lands for the repair of his roads as required, as such taking is authorized by law and the owners' rights are protected: Cherry v. Matthews, 25 Or. 484, 36 Pac. 529; Kendall v. Post. 8 Or. 144.

Nor will the proper officer be restrained from extending an assessment on the tax roll because it is alleged to be unequal, and to be an arbitrary discrimination against certain classes of property; the party aggrieved should wait until there is an attempt made to collect the tax, and then present his complaint after paying or tendering such a part as he admits to be properly due; Goodnough v. Powell, 23 Or. 525,

32 Pac. 396.

But under peculiar circumstances public

officers will be restrained from doing that which the law requires. See the case of the Rector of St. David's v. Wood, 24 Or. 405, 34 Pac. 18, in which, under the circumstances of the case, the recorder of conveyances was enjoined from receiving for record any conveyance of or incumbrance upon certain premises.

RESTRAINING ACTIONS, EXECUTIONS, ETC.-A court of equity will restrain an action of ejectment to recover a tract of land where it appears that the plaintiff and defendant, in an ejectment action, had filed upon separate adjoining public lands of the United States, and the plaintiff in such ejectment action, without the knowledge of the defendant, had his entry amended so as to cover both tracts, notwithstanding the defendant was and had been originally in possession of the tract entered by him, and by such means the plaintiff fraudulently obtained a patent to the defendant's tract: Sanford v. Sanford, 19 Or. 3, 13 Pac. 602.

Equity will interfere to enjoin the sale of real property on execution under void proceedings, to prevent a cloud being cast upon the title to such property: White v. Espey, 21 Or. 328, 28 Pac. 71.

But equity will not interfere to restrain an execution unless some ground of equitable relief is shown. The failure to obtain a new trial, or to effect an appeal, from accident alone is not sufficient: Galbraith v. Barnard, 21 Or. 67, 25 Pac. 1110.

Where one has obtained a decree upon a note and mortgage, which was subject to a counterclaim against his assignor, who is insolvent, the court in which the decree was rendered may entertain an original bill to restrain its enforcement: McDonald v. Mackenzie, 24 Or. 580, 14 Pac. 868.

Execution of a judgment obtained against a defendant for whom an attorney appeared without authority from such defendant will be enjoined: Handley v. Jackson, 31 Or. 554, 50 Pac. 915, 65 Am. St. Rep. 839.

A suit by a judgment debtor will not lie to enjoin the sale of personal property under an execution, upon the ground that it is exempt by law, unless the property possesses a special value to the judgment debtor alone, such as a keepsake or a memento of some kind, the loss of which can not be compensated in damages, since the judgment debtor has an adequate remedy at law for the unlawful seizure and detention, except as to property possessing such special value: Parsons v. Hartman, 25 Or. 547, 37 Pac. 61, 42 Am. St. Rep. 803.

The owner of real property has the right to restrain the sale thereof under a judgment against a third person, who has been privy to the title, which judgment is not a lien thereon, and for which such owner is not liable for the payment: Wilhelm V. Woodcock, 11 Or. 518, 5 Pac. 202.

In a suit to enjoin an execution issued upon a judgment where the proceedings are void, it would seem there is an adequate remedy at law against the sheriff as a trespasser: Ladd v. Ramsby, 10 Or. 207.

Where a judgment has been erroneously entered for costs and disbursements, and the party failed through inadvertence and mistake of his attorney to object, his remedy is at law by an appeal, and an injunction in such case does not lie: Nicklin v. Hobin, 13 Or. 406, 10 Pac. 835.

Before a person has a standing in a court of equity for relief against a judgment, he must comply with that part of the judgment against which no complaint is made: Putnam v. Webb, 15 Or. 440, 15 Pac. 711.

An injunction is not the remedy for an irregular levy of execution; the proper remedy for the injured party is to move to quash: Marks v. Stephens, 38 Or. 65, 63 Pac. 824.

NUISANCES.-As to the restraining of nuisances by equity, see note to § 343, ante.

WASTE.-A suit will lie for an injunction of being boycotted in business; that the to stay waste threatened, or being committed: Sheridan v. McMullen, 12 Or. 150, 6 Pac. 497.

Tearing down or destroying demised premises is waste which the landlord may restrain: Davenport v. McGoon, 13 Or. 3, 4 Pac. 299, 57 Am. St. Rep. 1.

TRESPASS.-The general rule is that equity will not grant an injunction in cases of trespass: Allen v. Dunlap, 24 Or. 233, 33 Pac. 675; Haines v. Hall, 17 Or. 165, 20 Pac. 831.

To this general rule there is an established exception in favor of mines, where injunctions will be granted to prevent the substance of the estate from being injured or carried away: Allen v. Dunlap, 24 Or. 233, 33 Pac. 675; Parker v. Furlong, 37 Or. 250, 62 Pac. 490.

Where the injury inflicted will be irreparable by damages, or will of necessity result in oppressive litigation, or the injury goes to the destruction of the estate, an injunction is proper: Smith v. Gardner, 12 Or. 221, 6 Pac. 771, 53 Am. St. Rep. 342, note; Mendenhall v. Water Co. 27 Or. 43, 39 Pac. 399. Where, however, it seems probable that the trespass is not likely to be repeated, and the defendants are able to respond in damages it does not seem necessary to resort to equity: Garrett v. Bishop, 27 Or. 354, 41 Pac. 10; Parker v. Furlong, 37 Or. 250, 62 Pac. 490.

Equity will interfere by injunction to restrain a continuing trespass on a mining claim by the removal of valuable ore, at the suit of one claiming to be the owner of the realty, though out of possession, where a law action is pending to determine the title; and if a strong showing is made, the trespass will be enjoined, even where no law action has been commenced. Ordinarily, the injunction will be only temporary, pending trial of the title; but if the plaintiff presents a prima facie absolute title, and it is not seriously disputed, equity will settle the entire controversy without waiting for any proceedings at law: Bishop v. Bailey, 28 Or. 138, 41 Pac. 937.

Equity has power to interfere by injunction to prevent an injury to land even when the defendant is in possession and is claiming under an adverse and undetermined title, if the threatened injury will cause irreparable damage. If the legal title to the land involved is in issue, however, and the equitable jurisdiction is challenged, the injunction will be continued only until the legal title is settled: Norton v. Elwert, 29 Or. 586. 41 Pac. 926.

The mere insolvency of the defendant is never of itself a reason for issuing an injunction. There must be some other equitable grounds for interference: Parker v. Furlong, 37 Or. 251. 62 Pac. 490. SPECIAL AND UNIQUE SERVICES.-If a contract stipulates for special, unique, and extraordinary personal services, so that in case of default the same services could not be easily obtained from others, nor be compensated in aamages at law, the court of equity would be warranted in applying its preventive remedy by injunction. However, if such services were ordinary and without special merit, and such as could be easily supplied without much difficulty or expense, the court will not act: Cort v. Lassard, 18 Or. 221, 22 Pac. 1054, 17 Am. St. Rep. 726. BOYCOTT.-A court of equity will not hesitate to issue an injunction for the protection of property rights against the irreparable damage by a wrongdoer, yet it is always a delicate step to take and the court ought to be fully satisfied that some right is about to be destroyed or irreparably and lastingly injured, and that the danger is pressing and imminent. Allegations by plaintiff that the members of a certain trades-union conspired to compel him to submit to the union's dictation upon pain

union's executive committee entered his premises without license and ordered his employees to strike, and that subsequently the union ordered another strike, both of which orders were obeyed; that defendant induced the city council, with threats of boycott at the polls, to reject the plaintiff's bid for the city printing, although the bid was the lowest made; that defendant threatened to boycott plaintiff's customers if they patronized him, on account of which he lost one customer and will lose another; and that defendant circulated the fact of such strikes by posting notices thereof in numerous places, all within the period of ten months, to the past injury and future danger of plaintiff's business, do not show such a wicked and persistent persecution of plaintiff in its business as to justify an injunction, for it does not seem that under all the circumstances the injury will be irreparable: Longshore Printing Co. v. Howell, 26 Or. 527, 38 Pac. 547, 46 Am. St. Rep. 640.

TAXES.-Before equity will interfere to enjoin the collection of a tax, the facts presented must disclose a case falling under some recognized head of equity jurisdiction, such as the preventing a multiplicity of suits, removing cloud from title, or the like, or it seems illegality of tax: Oregon & Wash. Sav. Bank v. Jordan, 16 Or. 116, 17 Pac. 621; Welch v. Clatsop County, 24 Or. 452, 33 Pac. 934; Dawson v. Croisan, 18 Or. 431, 23 Pac. 257; Sperry v. City of Albina, 17 Or. 481, 21 Pac. 453.

Nor will it interfere in any case until plaintiff has tendered the amount of tax that can be shown, or admitted to be due, where the legality of the tax is not the ground of objection: Welch v. Clatsop County, 24 Or. 452, 33 Pac. 934; Oregon & Cal. R. Co. v. Lane County, 23 Or. 399, 31 Pac. 964; Goodnough v. Powell, 23 Or. 525, 32 Pac. 396; Dayton v. Multnomah County, 34 Or. 246, 55 Pac. 23; Brown v. School District, 12 Or. 345, 7 Pac. 357; Alliance Trust Co. v. Multnomah County, 38 Or. 437, 63 Pac. 498.

A bill to restrain the collection of taxes on the ground that they are excessive is insufficient where it alleges that the plaintiff tendered to the tax collector a designated amount conceded to be due, which the collector refused to receive, but does not show that such tender was kept good by depositing the money in court: Welch v. City of Astoria, 26 Or. 89, 37 Pac. 66.

An abutting property owner may, without tendering the amount of the benefits, invoke the aid of equity against the consequences of an assessment for street improvements, which were made under void proceedings, where he protested against the improvements at their inception: Ladd v. Spencer, 23 Or. 198, 31 Pac. 474.

But when a party encouraged the making of an improvement, he will be obliged to tender the amount of the benefits received: Hawthorne v. East Portland, 13 Or. 271, 10 Pac. 342.

Under general jurisdiction to prevent clouds on title, equity will enjoin the sale of real property on void tax process: House v. Linn County, 37 Or. 114, 60 Pac. 843.

If a city, without warant of law, increase its assessment roll by raising all assessments a uniform rate per cent, an injunction will be granted to prevent it from collecting the tax upon such excessive valuation: Dalton v. East Portland, 11 Or. 426, 5 Pac. 193.

The filing of the assessment roll is constructive notice to the owners of taxable property of the valuation placed upon their property by the assessor, and upon failure of the taxpayer to take advantage of the legal remedy by an appeal to the county board of equalization, he can not afterward maintain a bill to enjoin the collection of

the tax on the ground of overvaluation: West Portland Park Co. v. Kelly, 29 Or. 417. 45 Pac. 901.

Where a merchant, who resided in a certain county and carried on his business there, became insolvent, and made an assignment of his property and effects, consisting mainly of personal property, to the appellant, for the benefit of his creditors, and such assignee, who was a resident of another county in the state, qualified and entered upon the discharge of his trust, and the assessor of the county in which the business was situated assessed the appellant for the property so assigned, and, because the appellant was such nonresident of the county, proceeded to, in a summary manner, as provided by the code for the collection of taxes on business about to leave the county, or residing there temporarily, collect the tax; and the sheriff in pursuance thereof seized and threatened to sell a part of the property so assigned, it was held that, as the property was in the hands of the appellant, as trustee, and he was charged with its inventory price and would be compelled to account for it, and that such threatened disposition of it would necessarily embarrass the settlement of the business pertaining to the trust, the appellant's remedy by injunction was proper: Dawson v. Croisan, 18 Or. 438. 23 Pac. 257. Courts of equity will not interfere to enjoin the collection of a tax merely because the property appears to be excessively valued, but when the valuation is shown to be so grossly excessive that the assessor must have known it was not just, the courts will interpose to prevent the consummation of what would be a fraud on the taxpayer: Oregon & Cal. R. Co. v. Jackson County, 38 Or. 589, 64 Pac. 307.

$421. Injunction After Answer.


USE OR FRANCHISE.-A railroad corpora -
tion, authorized to locate, construct, and
corporated city by authority of the common
operate its road upon a street in an in-
council thereof, granted according to law;
with the county court, as authorized by
or upon a county road under an agreement
the code, can not be enjoined from proceed-
ing with its enterprise at the suit of an
owner of lands abutting upon the street and
adjacent thereto is in such owner or not,
county road, whether the fee to the lands
to the center of the street and county road
without establishing
proofs that the construction and use of the
by allegations and
gress and egress to and from his premises:
railway will interfere with the owner's in-
Paquet v. Mt. Tabor St. Ry. Co. 18 Or. 233,
22 Pac. 906.

for determining the compensation to be paid
Where statutory provision has been made
for private property taken for public use,
and payment has been made a precedent to
the taking, an injunction will be granted
preventing the property from being used,
condition has been complied with:
or to require the use to be abated until the
lamette Iron Works v. Oregon Ry. & Nav.
Co. 26 Or. 224, 37 Pac. 1016, 46 Am. St. Rep.

APPEAL.-An appeal will not lie from
ing a preliminary injunction:
an order on a motion sustaining or dissolv-
Pringle, 21 Or. 24, 26 Pac. 863; Fowle v.
House, 26 Or. 588, 39 Pac. 5.
Basche v.

injunction but entered a decree settling the But when the court not only refused the rights of the parties, an appeal will lie: Helm v. Gilroy, 20 Or. 520, 26 Pac. 851.

An injunction shall not be allowed after the defendant has answered, except upon notice, but in such case the defendant may be restrained until the decision of the court or judge allowing or refusing the injunction; and before answer, if the court or judge deem it proper that the defendant should be heard before allowing an injunction, an order may be made requiring the defendant to show cause, at a specified time and place, why the injunction should not be allowed; and in the mean time the defendant may be restrained. [L. 1862; D. Cd. § 408; H. C. § 412.]

§ 422. Motion to Vacate or Modify Injunction.

If the injunction be allowed without notice, the defendant may, at any time after answer and before trial apply, upon notice, to the court or judge thereof to vacate or modify the same. affidavits in addition to the answer, and if so, the plaintiff may oppose the The application may be made upon same by affidavits, or other evidence, in addition to those upon which the injunction was allowed. If, upon the hearing of the motion, it satisfactorily appears that the injunction should not have been allowed, either in whole or in part, it shall be vacated or modified accordingly. [L. 1862; D. Cd. $ 409; H. C. § 413.]




§ 423. Personal Property Liens - How Foreclosed.

A lien upon real or personal property, other than that of a judgment or decree, whether created by mortgage or otherwise, shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured thereby by a suit. In such suit, in addition to the decree of foreclosure and sale, if it appear that a promissory note or other personal obligation for the payment of the debt has been given by the mortgagor or other lien debtor, or by any other person as principal or otherwise, the court shall also decree a recovery of the amount of such debt against such person or persons, as the case may be, as in the case of an ordinary decree for the recovery of money. [L. 1862; D. Cd. § 410; H. C. § 414.]

FORECLOSURE OF LIENS.-Notwithstanding this section, it seems that either the remedy upon the personal obligation or the mortgage may be pursued for the collection of the debt without reference to the other: Eubanks v. Leveridge, 4 Saw. 278.

A deed absolute in form may be shown to be a mortgage and foreclosed the same as any other lien; but the method of foreclosure prescribed by this section is exclusive and imperative, and an attempt to prescribe a different method in the mortgage or writing creating a lien upon real property must be disregarded: Thompson v. Marshall, 21 Or. 171, 27 Pac. 957. On the point that a deed absolute may be a mortgage, see Security Trust Co. v. Loewenberg, 38 Or. 169, 62 Pac. 647, and cases cited.

ASSIGNMENT OF DEBT.-Where a debt is secured by a mortgage, the former is the principal and the latter an incident thereof, and assignment of the debt is an assignment of the mortgage, particularly where the debt is evidenced by a negotiable promissory note. Where such a note secured by a mortgage has been assigned by indorsement, the security is protected in the hands of a bona fide holder to the same extent as the note itself, unless there is a law requiring assignments of mortgages to be recorded, and the mortgagee, or his transferee, has no power to enter of record a satisfaction of such mortgage. Such an entry is wholly void and affords no protection of priority to a subsequent purchaser or mortgagee: Bamberger v. Geiser, 24 Or. 203, 33 Pac. 609.

Where, at a void foreclosure sale, the mortgagee becomes the purchaser and enters into possession, and then sells and attempts to convey the premises by deed, such a deed operates as an assignment of the mortgage debt as well as the mortgage securing same, and each successive deed by persons holding under such mortgage must have the same effect: Cooke v. Cooper, 18 Or. 142, 22 Pac. 945, 17 Am. St. Rep. 709. REINSTATEMENT OF LIEN AFTER FORECLOSURE SALE.-A redemption of real property from a sale on execution after a foreclosure by the judgment debtor, or the successor in interest of the judgment debtor, who has purchased the judgment debtor's interest after the commencement of the action, will reinstate the lien: Flanders v. Aumack, 32 Or. 19, 51 Pac. 447, 67

Am. St. Rep. 504, note; Settlemire v. Newsome, 10 Or. 446; Lauriat v. Stratton, 11 Fed. 109.

But a redemption by the successor in interest of the judgment debtor, who has acquired his interest before the foreclosure suit was commenced, will not reinstate the lien: Willis v. Miller, 23 Or. 352, 31 Pac. 827.

STRICT FORECLOSURE. -The proper course of procedure to bar the rights of a junior creditor, who is not made a party to the foreclosure of a prior lien, is a suit for strict foreclosure, requiring him to redeem within a reasonable time or to be barred and foreclosed: Koerner v. Willamette Iron Works, 36 Or. 90, 58 Pac. 863, 78 Am. St. Rep. ; Sellwood v. Gray, 11 Or. 534, 5 Pac. 196.

This section has reference only to the foreclosure of liens that are security for debts, and does not apply to a suit to bar the equitable interest of the grantee in a bond for a deed: Security Sav. Co. v. Mackenzie, 33 Or. 213, 52 Pac. 1046.

THE DEATH OF A JUDGMENT DEBTOR, whose debt is secured by mortgage, does not give the probate court jurisdiction to foreclose the mortgage, but the circuit court retains its jurisdiction: Verdier v. Bigne, 16 Or. 208, 19 Pac. 64; nor does it prevent or suspend the foreclosure of the mortgage: Teel v. Winston, 22 Or. 489. 29 Pac. 142.

VENDOR'S LIEN.-The doctrine that the vendor has a lien upon the property for the unpaid purchase price thereof exists in this state: Gee v. McMullen, 14 Or. 268, 12 Pac. 417, 58 Am. Rep. 315; Coos Bay Wagon Road Co. v. Crocker, 6 Saw. 574; Pease v. Kelly, 3 Or. 417; Burkhart v. Howard, 14 Or. 39, 12 Pac. 79.

Where a receiver attempted to take a mortgage upon property of the judgment debtor in his own hands as trustee, it is held, in a suit to foreclose such mortgage, that he could not take a valid lien under such circumstances, but that he was entitled to a personal decree for the amount of his debt: Thompson v. Holladay, 15 Or. 35, 14 Pac. 725.

Where there is a covenant for the payment of a certain sum in the mortgage, the remedy shall be against the land, and, at the same time a personal decree may be obtained to collect any amount which may remain unpaid after the proceeds of the

sale of the mortgaged premises have been applied to the extinguishment of the judgment: Myer v. Beale, 5 Or. 130; but where there is no such covenant, the remedy is against the mortgaged premises only; there can be no judgment for any deficit: Myer v. Beale, supra.

Where a judgment was obtained in an action at law upon a promissory note, and a tract of land which had been mortgaged to secure the note was sold on an execution

without foreclosure of the mortgage, and the sale had been confirmed, the sale is not void, and it can not be attacked collaterally: Matthews v. Eddy, 4 Or. 225.

The failure to present a claim secured by a mortgage upon a decedent's land to the administrator of the estate within one year after notice of his appointment, will not prevent a foreclosure of the mortgage where no recovery is sought beyond the proceeds of the mortgaged land: Teel v. Winston, 22 Or. 489, 29 Pac. 142.

$424. Foreclosure Suits - Other Lien Holders Parties.

Any person having a lien subsequent to the plaintiff upon the same property or any part thereof, or who has given a promissory note or other personal obligation for the payment of the debt or any part thereof, secured by the mortgage or other lien which is the subject of the suit, shall be made a defendant in the suit, and any person having a prior lien may be made defendant at the option of the plaintiff, or by the order of the court when deemed necessary. [L. 1862; D. Cd. § 411; H. C. § 415.]

PARTIES TO FORECLOSURE SUITS.It is not absolutely necessary that subsequent lienholders be made parties in foreclosure procedure. The decree without subsequent lien holders is not binding upon them: Osborn v. Logus, 28 Or. 310, 42 Pac. 997; Sellwood v. Gray, 11 Or. 534, 5 Pac. 196; DeLashmutt v. Senwood, 10 Or. 319; Wilson v. Tarter, 22 Or. 510, 30 Pac. 499; Koerner v. Willamette Iron Works, 36 Or. 90, 58 Pac. 863, 78 Am. St. Rep. ; Gaines v. Childers, 38 Or. 203, 63 Pac. 487.

Such a decree itself is valid and vests in the purchaser the legal title to the premises and the right, in a proper proceeding, to compel such lien creditors to redeem within a certain time or be foreclosed: Sellwood v. Gray, supra; Koerner v. Willamette Iron Works, supra; Gaines v. Childers, supra.

Where the legal title to the premises sought to be foreclosed is in the wife as her separate property, she is a necessary party to the foreclosure: Fahie v. Pressey, 2 Or. 23, 80 Am. Dec. 401.

The mortgagor, or his successor in interest, made a defendant in a suit to foreclose, is entitled to answer the affirmative matter

set up in the respective answers of his codefendants, showing liens in their favor upon the mortgaged property, and to have the same determined, in the original suit. As to such matter his codefendants are to be deemed plaintiffs, and their answers complaints: Ladd v. Mason, 10 Or. 315. Where a suit of foreclosure was brought against the executors of the estate of a deceased mortgagor, the executors represent the estate of the decedent so far as the same vests in them for the creditors and heirs; the title, however, descending to the heirs, the executors do not have the same estate in the land that the deceased had. The heirs, therefore, are necessary parties in the foreclosure suit: Renshaw v. Taylor, 7 Or. 321.

The purchaser at a foreclosure sale acquires the right of the mortgagee so far as he has any claim or interest in the premises for the security of his debt, and also so much of the equity of redemption as is not bound by the lien of a junior incumbrancer: Watson v. Dundee Mortg. Co. 12 Or. 474, 8 Pac. 548.

$425. Decree Where More than One Lien on Same Property.

When it is adjudged that any of the defendants have a lien upon the property, the court shall make a like decree in relation thereto, and the debt secured thereby, as if such defendant were a plaintiff in the suit; and when a decree is given foreclosing two or more liens upon the same property or any portion thereof in favor of different persons not united in interest, such decree shall determine and specify the order of time, according to their priority, in which the debts secured by such liens shall be satisfied out of the proceeds of the sale of the property. [L. 1862; D. Cd. § 412; H. C. § 416.]

In a suit under this title the court has no authority to determine a controversy between defendants jointly liable on the note, which the mortgage was given to se

§ 426.

cure, as to which of them was the principal debtor and which the surety: Hovenden v. Knott, 12 Or. 267, 7 Pac. 30.

Decree of Foreclosure - How Enforced.

The decree may be enforced by the execution as an ordinary decree for


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