of the parties against whom it is asserted as would have given them a cause of action therefor." See, also, Milling Co. v. Coughanour, 34 Or. 9, 54 Pac. 223; Boyce v. Cupper, 37 Or. 256, 61 Pac. 642. The undisputed evidence shows that, while the defendant used the water for the purpose of irrigating his garden for more than 10 years prior to the commencement of this suit, such use did not substantially interfere with the rights of the plaintiffs, nor did they have any knowledge thereof, until a year before the suit was begun. Britt, one of the plaintiff's, testified that he first learned that the defendant was using the water about July 21, 1899, and that, just a few days before the complaint in this suit was filed, the defendant told him that at one time he thought he had a right to the water, but had ascertained that he had none, and would let it alone; that on several occasions when the water was scarce, and the question was being discussed between them, the defendant told him that the scarcity was caused by the Beekman mining ditch, about two miles above on the creek, but at no time said that he himself was using the water. Judge Hanna stated that he had no knowledge that defendant was using the water prior to 1899; and Emil Britt, a son of plaintiff Britt, and who had charge of his business, testified to the same thing. William Healey, the husband of the plaintiff Fredrika Healey, said that he never knew that defendant was using the water until after this suit was commenced, although he and his wife had lived on the property now owned by them since 1883 or 1884, and that he had occasion often to go up the stream, both on account of their own water rights and those of the city, in order to ascertain if the water was being diverted and used by unauthorized persons. The testimony of these witnesses is in no way contradicted, so that it must be taken as an established fact in the case that the plaintiffs' right to the water was not substantially interfered with by defendant's use a sufficient length of time before the commencement of the suit for such use to ripen into a right by adverse possession or prescription. The defendant's garden is situated on the bank of the creek, off of the public highway, and is not in a place where the ordinary traveler would observe it, or ascertain that water was being used thereon; and, moreover, the defendant testified that he generally used the water at night, although he sometimes used it during the day. The plaintiffs' lack of knowledge on the subject is probably accounted for by these facts.

On the record, therefore, we conclude that the plaintiffs are entitled to a decree perpetually enjoining and restraining the defendant from diverting any of the waters of Jackson creek, or in any manner impeding or obstructing the flow thereof, whenever the same will substantially affect the quantity of water to which the plaintiffs are entitled. Decree affirmed.

1. The owner of mortgaged premises conveyed to a third party, but, before the deed was recorded, the mortgage was foreclosed, and sale had. In the foreclosure the owner of a judgment was a party defendant, and set up his lien and obtained a decree that the proceeds of sale, after satisfying prior liens, should be applied to the judgment. After the recording of the third party's deed, he redeemed the premises. Bel. & C. Ann. Codes & St. Or. §§ 423427, 429, relative to foreclosure of liens on property, require a judgment creditor to be made a party defendant if it is designed to devest him of his interest. Held, that the judgment creditor's rights under his original judgment were devested by the foreclosure decree, and, the premises not having been redeemed by the judgment debtor, but by the third party, the judgment creditor could not seize them on execution under his judgment.

Appeal from circuit court, Wasco county; W. L. Bradshaw, Judge.

Suit by George H. Williams against W. H. Wilson and another. From a decree for defendants, complainant appeals. Original opinion withdrawn. Reversed.

This is a suit to enjoin the sale of real property under an execution issued on a judgment against the plaintiff's grantor. The facts are that on January 17, 1893, O. D. Taylor mortgaged the property in question to Wm. H. Wilson, and on the 27th of the following July conveyed it to the plaintiff, but the deed therefor was not recorded until the 27th of July, 1895. In March. July, and October, 1894, one Joseph A. Johnson recovered judgments against Taylor for $1,600, $1,645, and $1,841.71, respectively, and in April, 1894, Caroline Breese recovered a judgment against him for $1,107.50, which she assigned to Johnson. At the time the judgments were recovered by Johnson, he had no notice or knowledge that plaintiff had or claimed any interest in the mortgaged premises, and knew nothing of the deed until it was recorded. On November 16, 1894, J. C. Flanders, the assignee of the mortgage, commenced suit in the circuit court for Wasco county to foreclose the same, making Johnson a party, and alleging that he had or claimed some interest in or to the mortgaged premises, but that it was subsequent and subject to the lien of the mortgage. Johnson appeared, and filed an answer or cross-complaint, setting up his judgments, and alleging that they were liens on the mortgaged premises, and entitled to be paid out of the proceeds of the sale thereof in the foreclosure proceedings. Thereafter, and on May 27, 1895, a decree was rendered, foreclosing the Flanders mortgage, ordering a sale of the property, and directing the proceeds to be distributed (1) to the payment of the expenses of sale and the amount due on the

1. See Mortgages, vol. 35, Cent. Dig. §§ 1556, 1691.

mortgage, attorney fees, costs, and disbursements, (2) to the payment of Johnson's judg ment of March, 1894, (3) of the Breese judgment of April, 1894, (4) of Johnson's judgment of July, 1894, (5) of a judgment in favor of the state of Oregon, and (6) of Johnson's judgment of October, 1894. The decree also provides that all the defendants, including Johnson, shall "be barred and forever foreclosed of any and all right, title, interest, claim, or demand in or upon said mortgaged property, and each and every parcel there except the statutory right of redemption. An execution was issued on the decree, and the property sold at public auction to Johnson for an amount sufficient to satisfy all the liens thereon except the one of October, 1894. The sale was confirmed on July 19, 1895, and on the 8th of the following month the plaintiff redeemed by paying Johnson the amount of his bid, which was accepted, and applied upon the judgments of March and July, 1894, and the Breese judgment, and the same were satisfied of record, leaving unpaid his judgment of October, 1894, which he assigned to one Rorick, who, on the 13th day of August, 1901, assigned it to the present defendant W. H. Wilson. On the 18th of September, 1901, Wilson caused an execution to be issued thereon, and the property described in the mortgage and conveyed by Taylor to the plaintiff to be again seized and advertised for sale, whereupon this suit was brought to enjoin the sale, on the ground that the lien of the Johnson judgment was barred and foreclosed by the decree of the foreclosure.

Geo. H. Williams, for appellant. W. H. Wilson, for respondents.

WOLVERTON, J. (after stating the facts). Since this case was decided, the respondent has filed an exhaustive brief on petition for rehearing, by which it is urged with signal ability that the determination of the court is untenable and contrary to its former adjudications. We have re-examined the case with the same result as formerly, but have revised the reasons upon which it must rest. This opinion will, therefore, take the place of the former as declarative of the law of the case. The judgment in favor of Johnson, the enforcement of which is sought to be enjoined in this suit, was recovered by him without notice or knowledge of the previous deed from Taylor to the plaintiff, and therefore the plaintiff stands in the same positon as if Taylor owned the property at the time of the rendition of the judgment, and he had purchased it after that date. The question for decision, then, is whether a judgment lien creditor, who is a party to a suit to foreclose a prior mortgage, and who comes in by answer or cross-complaint, and sets up the judgment, and obtains a decree that the proceeds of the sale, after satisfying prior liens, shall be applied in payment of his judgment, can

have the mortgaged premises resold under execution issued in the law action for any deficiency due him on his judgment, when the land had been redeemed by a grantee of the mortgagor, who takes subsequent to the rendition of the foreclosure decree. In Settlemier v. Newsome, 10 Or. 446, and Flanders v. Aumack, 32 Or. 19, 51 Pac. 447, 67 Am. St. Rep. 504, it is held that land sold under an execution issued on a judgment at law, and redeemed by the judgment debtor or his successor in interest, may be resold for an unpaid balance due on the judgment, and the amount paid on redemption being considered merely a payment pro tanto. In Willis V. Miller, 23 Or. 352, 31 Pac. 827,-a case where the mortgaged premises passed into the hands of a stranger to the mortgage prior to the foreclosure, it was held that the premises could not be resold for a deficiency remaining upon the personal decree against the mortgagor after redemption by the holder of the equity of redemption or legal title. In distinguishing this case, we said in Flanders v. Aumack, 32 Or. 29, 30, 51 Pac. 447, 450, 67 Am. St. Rep. 504: "Foreclosure is a remedy by which the property covered by the mortgage may be subjected to sale for the payment of the demand for which the mortgage stands as security, and, when the decree is had, and the property sold to satisfy it, the mortgagee has obtained all he contracted for. But if there is also a personal decree against the mortgage debtor, this becomes, from the date of its docketing, a general lien upon his real property, as in case of a judgment; and, if a deficiency remains after the application of the proceeds of the sale of the lands covered by the mortgage, the decree may be enforced by execution, as in ordinary cases. Hill's Ann. Laws Or. § 417, subd. 2. The resale does not take place under the order for the sale of the specific property covered by the mortgage lien, for that has been exhausted, but under the personal decree, which remains as a deficiency decree against the mortgage debtor after the application of the proceeds arising under the order of sale; and a redemption will not reinstate the specific mortgage lien, while it will the general lien acquired by the personal decree. This distinction is clear, and is bottomed both upon principle and authority. The redemption is from the sale, and not from the mortgage; and, if the lien of the personal decree has never attached by reason of the mortgagor not having the fee of the property at the time it was rendered, there never existed any lien to be reinstated against his successor in interest, who purchased prior to the decree." This was by way of argument, and, while it may not have been necessary, strictly speaking, to the deci sion of that case, yet we think it sound doctrine, and are quite ready to adhere to it now, where it is especially invoked in behalf of respondent as decisive of the present centroversy. But we cannot agree with counsel that such is its relevancy and effect. The statute

provides how a lien other than a judgment or decree may be foreclosed, which shall be by suit. In addition to the decree of foreclosure, if it appear that a promissory note or other personal obligation has been given by the mortgagor or other lien debtor for the payment of the debt, a decree may be had against him for the amount of such debt, as in the case of an ordinary decree for the recovery of money. Any person having a lien subsequent to plaintiff upon the same property shall be made a party to the suit, and, 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 debts secured thereby as if such defendant were a plaintiff in the suit; and when 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. If the decree is in favor of the plaintiff only, execution may issue, as in ordinary cases; but, if in favor of different persons not united in interest, it shall issue at their joint request, or the order of the court. When the decree is also against the defendants, or any one of them in person, and the proceeds of the property involved by the lien is not sufficient to satisfy the same as to any sum remaining, it may be enforced by execution, as in ordinary cases. In such case, if the decree be in favor of different persons, not united in interest, it shall be deemed a separate decree as to such persons, and may be enforced accordingly. Bel. & C. Ann. Codes & St. Or. §§ 423-426. It is further provided that "a decree of foreclosure shall have the effect to bar the equity of redemption, and property sold on execution issued upon a decree may be redeemed in like manner and with like effect as property sold on an execution issued on a judgment, and not otherwise" (section 427); and also that "during the pendency of an action at law for the recovery of a debt secured by a lien mentioned in section 423, a suit cannot be maintained for the foreclosure of such lien, nor thereafter, unless judgment be given in such action that the plaintiff recover such debt or some part thereof, and an execution thereof against the property of the defendant in the judgment is returned unsatisfied in whole or in part" (section 429). It is very apparent from these sections of the statute that a judgment lien creditor should be made a party defendant, if it is designed to devest him of any interest he has acquired in the subject of the foreclosure. In De Lashmutt v. Sellwood, 10 Or. 319, it was held that such a junior lien holder was not in any way affected by proceedings to foreclose to which he was not made a party, and that his right to sell on execution and convey the title remained unimpaired, and this as against a prior sale under the decree

He

of foreclosure. Springing out of the legal principles and conditions established by this case was another,-Sellwood v. Gray, 11 Or. 534, 5 Pac. 196,-which was a suit brought by the holder of the sheriff's deed under the foreclosure decree against the judgment creditor, who had purchased under execution on his judgment, to require him to redeem from the mortgage, and it was held that such a suit could be maintained; that the purchaser under the ineffectual sale under the decree became subrogated to the position of the mortgagee; and that the judgment creditor should redeem, not under the statute, but by doing equity, that is, paying the amount of the mortgage debt, both principal and interest, or such as remained unpaid, or be forever barred of all interest in the premises. The doctrine is concisely stated in Osborn v. Logus, 28 Or. 302, 310, 37 Pac. 456, 38 Pac. 190, 42 Pac. 997, 998, that "a purchaser under such a decree may insist upon a redemption by the lienor not made a party, failing in which such lienor will be thenceforth barred of all interest in the premises"; and it has been reaffirmed in Koerner v. Iron Works, 36 Or. 90, 58 Pac. 863, 78 Am. St. Rep. 759, and Gaines v. Childers, 38 Or. 200, 63 Pac. 487. So that a judgment lien creditor not made a party to a suit to foreclose a prior mortgage is in no way affected by the decree. may have execution issue upon his judgment, and sell and obtain the legal title, notwithstanding the foreclosure. But he may redeem if he desires, or may be compelled to do so, and in either case he must pay the entire mortgage debt and interest under the equitable rule, and not under the statute, as from a sale under the decree. Now, what is the status of a judgment lien creditor when he has been a party, regularly brought in, and becomes legally subject to the decree of foreclosure? If he desires to perpetuate his lien as it pertains to the particular property involved by the suit, it is plain he must set it up; otherwise he must stand in default, and can get nothing. Whether he is entitled to a personal decree therein, as if he were a plaintiff, is a question we are not now called upon to decide. None such was obtained in the foreclosure involved here. He would have a voice, under the statute, as to the issuance of the execution, but could have none on his own motion, save by the order of the court, unless he should obtain a deficiency decree. In 2 Jones, Mortg. (4th Ed.) § 1437, we find this text: "A creditor having a judgment rendered before the sale, but subsequent to the decree, may redeem at any time before the sale by virtue of his lien. But after the sale the right is as effectually barred as if the creditor had been made a party to the proceeding." The redemption must be from the mortgage, but a sale will cut him off from that, and so will he be cut off if he is made a party to the proceeding. Of what avail would be a decree, if, notwithstanding, the judgment creditor could have execution issue, and sell under his

The

judgment? There must be some purpose in requiring him to be made a party to the foreclosure suit, and what purpose can be subserved thereby if it denies or curtails none of his rights acquired by his judgment? clear purpose and effect of a foreclosure proceeding under the statute is to conclude all parties to the record, and bind them by the decree. It is, in a sense, a proceeding in rem; strictly so in so far as it determines the status of the property involved by the liens, but not as it relates to a personal decree. It determines and declares priorities and preferences and marshals the assets; that is, determines the order in which the proceeds of the property shall be applied with reference to the various liens when sold, the necessary and inevitable result of which is to merge all liens involved, whether general or special, in the decree; and thenceforth, if it is sought to subject the property to the payment of any of these distinct liens, it must be done under the decree in accordance with its directions, and by virtue of the process provided for its enforcement. The parties can have no remedy or process to enforce their individual liens as they existed prior to the foreclosure, because it cuts them off, and gives them the process provided for the enforcement of the decree where the priorities are determined and the assets marshaled. Lauriat v. Stratton (C. C.) 11 Fed. 107. Now, while it may be conceded that the effect of the redemption by Williams as Taylor's successor to the equity of redemption or legal title was to restore the estate and reinstate the general lien for any unpaid balance of any personal decree that may have been rendered in that suit, yet it cannot be effective to vacate the decree, and restore Johnson or his successor in interest, the defendant herein, to all his rights under his original judgment, including his right to have execution issue, and to levy it upon the property dealt with in the foreclosure. As to that he has been forever barred; and his general lien, unless he has obtained one in the foreclosure proceedings, cannot avail him for the purpose. He has had his day in court as to the property, and must abide the adjudication, and, unless the property comes again into the hands of his judgment debtor, his general lien by virtue of his original judgment is forever gone.

Counsel, in their brief, put a hypothetical case by supposing that, after the decree in the Flanders foreclosure had been entered, Taylor, the judgment debtor, had paid off the amount due under the mortgage, attorney's fees, and costs, and had also paid all other liens adjudged by the decree, except the one based upon the judgment in question, but failed to pay that, and asks, would appellant claim, under such circumstances, that the Flanders foreclosure decree had barred or foreclosed the lien of the last-named judgment? We answer that such would logically have been its effect, and, if the defendant herein desired to pursue the property, and ob

tain satisfaction of his demand out of it, he must have done so by execution in the foreclosure suit, and under the decree therein rendered. The prior demands or liens having been voluntarily satisfied, the defendant could have had his execution to enforce the decree, and have the property applied to the payment of his lien as therein determined; but, the property having been once sold under the decree, and Taylor, or rather his successor in interest, having redeemed, the specific lien is discharged. If, however, the defendant herein had acquired a personal decree in the foreclosure suit, and the same had been regularly docketed, he would have been entitled to an execution upon that, as in ordinary cases, but he can have no execution upon his judgment in the law action, as it has never reattached by the property coming again into the hands of the judgment debtor.

It follows that the defendant should be enjoined from further prosecuting his execution in the law action, and the decree of the court below will be reversed, and one here entered in accordance with the prayer of the complaint.

WAITE v. WILLIS.

(42 Or. 288)

(Supreme Court of Oregon. Dec. 29, 1902.)

DECEDENTS' ESTATES-EMPLOYMENT OF AT

TORNEY-LIEN FOR SERVICES-ACTION
FOR MONEY RECEIVED-PLEADING.

1. A complaint which alleged that defendant, an attorney, had received for the use and benefit of plaintiff, from a certain person, a certain sum of money, sufficiently showed that defendant had money in his hands belonging to plaintiff.

2. In an action for money had and received, it is not necessary that the complaint should allege any fictitious promise.

3. Bell. & C. Ann. Codes & St. § 1207, provides that an executor or administrator may be allowed all necessary expenses in the care, management, and settlement of an estate, including attorney's fees in any necessary litigation. Held that, where an executor employs an attorney, it is a matter not binding on the estate, and the attorney has no lien on the property belonging thereto.

Appeal from circuit court, Douglas county; J. W. Hamilton, Judge.

Action by F. B. Waite, executor, against W. R. Willis. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by the executor of the last will and testament of Fendal Sutherlin, deceased. Among other things, it is alleged by the complaint "that on or about the 18th day of September, 1901, the above-named defendant, W. R. Willis, received and had for the use and benefit of plaintiff, from Crouch, the sum of $334.05, in lawful money of the United States." Then follow allegations of demand, the refusal to deliver, etc., and a prayer for judgment for the sum named. To this the defendant answered that

he is an attorney duly admitted to practice; that he was on the 3d day of September, 1901, employed and retained by plaintiff, as executor of the estate of Fendal Sutherlin, deceased, as attorney to conduct said estate to final settlement; that the money alleged to have been received by defendant was collected by him in the course of his employment; and that a final settlement of the estate has not been effected,-and prays the dismissal of the action. A general demurrer to this answer having been sustained, a demurrer was interposed to the complaint and overruled; and, judgment being rendered in plaintiff's favor, the defendant appeals.

Dexter Rice, for appellant. O. P. Coshow, for respondent.

WOLVERTON, J. (after stating the facts). A question of practice is suggested at the outset, to the effect that by demurring to the complaint the defendant waived his plea in abatement; but it will be more satisfactory to reach a conclusion upon the sufficiency of the complaint, on the one hand, and that of the answer, on the other, and thereby finally settle the controversy. The specific objection to the complaint is that it does not appear therefrom that the defendant has money in his hands belonging to plaintiff. By a slight transposition of the phraseology, which will indicate more clearly the idea of the pleader, it alleges that the defendant had and received from one Crouch $334.05, in lawful money of the United States, to the use and benefit of plaintiff. Formerly it was essential, in a count for money had and received, to employ the fiction of a promise, but this is no longer required under the Code. The facts should now be stated out of which the cause of action arose, and the law will imply the promise. Hammer v. Downing, 39 Or. 504, 520, 521, 64 Pac. 651, 65 Pac. 17, 990, 67 Pac. 30. The complaint in question shows from whom defendant received the money, and to and for whose use and benefit it was received, namely, that of the plaintiff. This indicates whose money it was, and the law implies the requisite promise on the part of the defendant to render him liable to a money judgment. 14 Enc. Pl. & Prac. 53; Stewart v. Phy, 11 Or. 335, 3 Pac. 443; Betts v. Bache, 14 Abb. Prac. 279. The complaint is therefore sufficient.

The answer we deem defective in statement, but, waiving that, we are of the opinion the defendant has no legal basis upon which to found his defense. He was employed by the executor while administering the estate, and is not entitled to an attorney's lien, for services rendered in that capacity, upon the money or property of the estate coming into his hands professionally. An executor or administrator may be allowed all necessary expenses incurred in the care, management, and settlement of an estate, including reasonable attorney's fees in any necessary

litigation or matter requiring legal advice or counsel. Beil. & C. Ann. Codes & St. § 1207. Under this statute the employment of an attorney by an executor is a personal matter, in no way binding upon the estate. However, if the services are necessary, the executor or administrator may be allowed out of the estate a sufficient amount to compensate him for such emloyment. In re McCullough's Estate, 31 Or. 86, 49 Pac. 886. The attorney, therefore, having no claim against the estate, can have no lien, under the statute, upon the property belonging thereto. De Lamater v. McCaskie, 4 Dem. Sur. 549.

It follows that the matter sought to be interposed as a defense is inadequate and insufficient for the purpose, and the judgment must be affirmed.

(42 Or. 310)

WINCHESTER et al. v. HOOVER et al. (Supreme Court of Oregon. Dec. 29, 1902.)

WILLS-CONSTRUCTION-LIFE ESTATE-ACTION

TO QUIET TITLE -JURISDICTION.

1. Under Bell. & C. Ann. Codes & St. § 516, providing that any person claiming an interest in real estate not in the actual possession of another may maintain a suit in equity against another, who claims an interest therein adverse to him, for the purpose of determining such adverse claim, where plaintiffs, in possession of premises, allege ownership in fee and adverse claim by defendants, and they answer that they own the fee, subject to a life estate owned by plaintiffs, the court has jurisdiction.

2. Under a will devising certain real estate to testator's wife, to have and hold "during her life, or while she shall remain unmarried, to pay my debts, to support herself, and to maintain and educate minor children, and at her death or marriage the property to descend in equal proportions or shares to all my children," she takes a life estate only, without power of sale, and a grautee from her acquires only such life estate; the remainder in fee vesting in the children.

Appeal from circuit court, Jackson county; H. K. Hanna, Judge.

Action by E. H. Winchester and another against Huldah E. Hoover and others. From a judgment for plaintiffs, defendants appeal. Reversed.

W. E. Thomas and Dexter Rice, for appellants. A. S. Hammond, for respondents.

BEAN, J. This is a suit to determine conflicting or adverse claims to real property. The facts are that on October 12, 1886, George W. Hoover died in Douglas county, leaving a will, in which, after giving to his children and grandchildren $1 each, he devised and bequeathed "all the balance, remainder, and residue of my estate, including both real and personal property, which I may own at the time of my death, and not herein otherwise disposed of, to my wife, Huldah E. Hoover, to have and hold during her life, or while she shall remain unmarried, to pay my debts, to support herself, and to maintain and educate minor children, and at her death or marriage the said property to