of the complaint, namely, that it does not | the offer in evidence of a tax deed raised by allege said colt was eligible to enter in said 2 Hill's Ann. Laws 1892, § 2823, may be overrace, and that the complaint does not nega-trovert the regularity of any essential step in come by recitals in the deed itself which contive the presumption that the officers of the the proceedings. defendant declared the race a walk-over. The complaint alleges that the plaintiff regularly entered the two year old colt, Lord Lovelace, on a blank furnished him by defendant, and the race was placed on the program, and was raced for according to the conditions set forth, that the race was called by the judges and took place in accordance with the program and conditions, under the order and directions of defendant

subrogation, did not put a subsequent purchas- | third, that Stringham was not the owner of er on inquiry to ascertain if such other person

did not make it.

[Ed. Note.-For other cases, see Subrogation, Cent. Dig. § 101; Dec. Dig. § 36.*]

(§ 36*) PERSONS AGAINST WHOM ENFORCED BONA FIDE PURCHASER.

-

Where plaintiff purchased a mortgage on the faith of the record showing the discharge of a prior mortgage and no prior incumbrances, and had no notice that defendant, the owner of a tax title on the property, had paid such prior mortgage and satisfied it of record, relying on the validity of his tax title, plaintiff was a bona fide purchaser, whose rights could not be postponed by subrogating defendant to the rights of the prior mortgagee on its being subsequently adjudicated that his tax title was void.

[Ed. Note. For other cases, see Subrogation, Cent. Dig. § 101; Dec. Dig. § 36.*]

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action by James Stitt against William N. Stringham and others. From a decree for defendants Charlotte Ross and E. W. Ross, plaintiff appeals. Reversed and remanded.

This suit was brought to foreclose a mortgage upon the N. 1⁄2 of S. W. 4 of section 10, township 7 S., range 1 E. of Willamette Meridian, in Marion county, executed on December 16, 1895, by the defendant William N. Stringham, in favor of Charles E. Bennett, to secure the indebtedness of the former to the latter, evidenced by his promissory note for the sum of $240, with interest at 10 per cent. per annum from the above date, with a provision for reasonable attorney's fee for collection. In addition to the usual allegations in such cases, it is averred, in substance: That the note and mortgage were thereafter sold and assigned to the plaintiff by Thomas McCusker, the duly appointed and acting administrator of the estate of Charles E. Bennett, deceased; that, at the time of the suit, plaintiff was the owner and holder of the mortgage and note; that no payment had been made; and that $50 was a reasonable amount to be allowed for attorney's fee. Charlotte Ross and W. E. Ross, her husband, were made defendants, it being averred as to them that they claimed some interest in the mortgaged property, but that such interest, if any, was junior and inferior to the lien of plaintiff's mortgage. Stringham defaulted; but defendants Ross answered, admitting that Charlotte Ross claimed to be the owner of the land in question, but denying all other averments of the complaint. They then set up three affirmative defenses: First, that Charlotte Ross is the absolute owner of the mortgaged premises by virtue of a tax sale and deed; second, that by right of subrogation she holds a mortgage upon the premises prior and superior to plaintiff's mortgage, and, notwithstanding the former had been released of record, it should be reinstated and foreclosed in her favor; and,

the mortgaged premises at the time he made the new matter of the answer, and averred plaintiff's mortgage. The reply put at issue that plaintiff purchased the note and mortgage in suit for value and without notice of defendants' equities. The cause was tried in October, 1906, and in July, 1907, the court found that the tax title was valid, and entered a decree for the defendants, from which plaintiff has appealed.

Richard W. Montague (H. J. Bigger, on the brief), for appellant. G. G. Bingham (L. J. Adams, on the brief), for respondents.

above). Plaintiff offered, in evidence, StringSLATER, J. (after stating the facts as ham's note, indorsed in blank by McCusker, as administrator of the estate of Charles E. Bennett, deceased, accompanied by a written assignment of the mortgage. Objection was made to the admission of the latter, upon the general ground that it was not competent. It is now urged more specifically: (1) That the instrument offered as proof of an assignment showed upon its face an apparent erasure of the name of another and different assignee, and the substitution of plaintiff's name therefor, and that, before the instrument could be received in evidence, plaintiff was bound to offer some explanation as to when, by whom, and under what circumstances the alteration was made, and, as he failed to do that, it is not admissible; and (2) that proof of its execution should be made by the subscribing witnesses, which was not done. Even if these objections were well and timely taken by defendant, still plaintiff has in evidence the note, duly indorsed by the personal representative of the payee thereof, and under the case of Barringer v. Loder, 47 Or. 223, 81 Pac. 778, that is sufficient to carry with it the ownership of the mortgage given to secure its payment.

Defendant offered in evidence, a tax deed from the sheriff of Marion county to her grantor, P. H. Marlay, executed on December 6, 1898, and recorded on March 25, 1899. It was objected to by the plaintiff as incompetent, because it showed upon its face: (1) That the assessment upon which it was based was void; and (2) that the sale was void. No evidence of the facts, constituting the assessment, levy, or sale, was offered; but defendant relied upon the prima facie presumption of the regularity thereof, raised by the offer of a deed. 2 Hill's Ann. Laws 1892, § 2823. This presumption, however, may be overcome by recitals in the deed itself which controvert the regularity of any essential step in the assessment, levy, or sale.

The first objection arises from a recital in the deed that "the said real property was duly assessed for the fiscal year 1894 to the said E R. Tyrrel, and to all owners and

claimants, known and unknown." In the case of Lewis v. Blackburn, 42 Or. 114, 69 Pac. 1024, concerning an assessment of land made to "unknown owner, and to all owners and claimants, known and unknown," it was held that an assessment cannot legally be made in the alternative, either to owners known or unknown, but that it must be made definitely to one or the other, and, unless so made, is void. The only difference between the facts of that case and the one now presented is that here the name "E. R. Tyrrel" is inserted as owner, and joined to and accompanied by an uncertain description as to ownership. It is admitted that the person named was then the owner, and it is claimed by counsel for defendant that the difference is vital and sufficient to save the case from the ruling in Lewis v. Blackburn. It appears, however, that the cases from the state of California, on which the decision in that case was based, are identical in facts with the case now presented. In Grotefend v. Ultz, 53 Cal. 666, the assessment was to "D. B. Matlock and to all owners and claimants known and unknown," and it was declared void. This was the leading case, and was followed in Grimm v. O'Connell, 54 Cal. 522, where the facts were the same. The second objection made by plaintiff arises from the recital in the deed that the sale was made "to pay the taxes assessed, as aforesaid, to the said E. R. Tyrrel, with costs, charges, and interest accruing thereon." Interest upon delinquent taxes was not collectible by the law then in force. 2 Hill's Ann. Laws 1892, § 2814. Hence it is an unlawful charge, unless so made by statute. Taxes are not "debts" within the legal meaning of that term. Whiteaker v. Haley, 2 Or. 128, 140. "They are not founded upon contracts, either expressed or implied. Hence the incident of interest is not one which will attach to them, although they become payable on a day certain, either by the common law or by statutes allowing interest upon debts. Nothing but an express declaration of law that taxes shall bear interest will authorize the charging of interest upon them. It follows that if interest is included in the amount for which land is sold at tax sale, when no statute specifically authorizes it, the sale will be void." Black on Tax Titles (2d Ed.) § 236. And when a greater rate is exacted than that allowed by law the sale is held void. Gage v. Williams, 119 Ill. 563, 9 N. E. 193; Lufkin v. Galveston, 73 Tex. 340, 11 S. W. 340; Rellstab v. Belmar, 58 N. J. Law, 489, 34 Atl. 885. The deed in question was void, and through it defendant Charlotte Ross could acquire no title to the premises.

sum of $178.16, together with a mortgage, given to secure the same, upon 160 acres of land, which included the 80 acres described in plaintiff's mortgage and in the tax deed; that she became the owner of the mortgage and the lien created by the same; that she did not take a formal assignment of the mortgage, but, believing herself to be the absolute owner of the land covered by the mortgage, and having no notice or knowledge of the existence of plaintiff's mortgage, she procured on July 2, 1901, from the owner of said mortgage, and caused to be recorded September 20, 1902, a satisfaction thereof; that the said note and mortgage were not paid by the mortgagor, E. R. Tyrrel, or by any one for him; but that the acknowledgment of payment was secured by defendant for the purpose of leaving her in possession of the absolute title to the premises; and she asks that, in the event it should be determined by this court that she is not the owner thereof by reason of her tax title, the amount of said note be decreed due her, and the mortgage be a first lien upon the land and be foreclosed. The note and mortgage in question were given long prior to the date of the assessment and levy of the tax for which the land was sold, and therefore, although the assessment and sale were in all respects valid under the law as it then was, the title thereby acquired would be subject to the lien of the prior mortgage. Middleton v. Moore, 43 Or. 357, 73 Pac. 16; Ferguson v. Kaboth, 43 Or. 414, 73 Pac. 200, 74 Pac. 466. The question then presented is whether, under all the circumstances of the case, the defendant is still entitled, in equity, to be substituted in the place of the mortgagee, as the owner of the mortgage. Did she, by the fact of payment, become the equitable assignee of the security, and entitled to enforce it for her own reimbursement and the protection of her supposed interest in the land? She was not personally liable to pay the debt, and a mere volunteer is not entitled to the aid of a court of equity; but the equitable doctrine of subrogation is frequently applied in favor of a vendee, who, although not personally liable, has paid the debt of another, which is a charge upon the land, and which, if .not paid, might cause him to lose his interest therein. "Under such circumstances," says Mr. Justice Vann, in Arnold v. Green, 116 N. Y. 566, 572, 23 N. E. 1, 2, "the debt, although paid and satisfied in form, is regarded in equity as neither paid nor satisfied in fact; but by operation of law the former holder ceases to be the creditor, while the person paying takes his place as owner of the debt and security unShe also avers in her answer, in effect: impaired. Where, within the limitations sugThat, at the time she took from P. H. Marlay gested, benefit may result to the person paya conveyance of his tax title, she also pro- ing without injury to the person who should cured to be transferred to her a note (execut- pay, equity casts the burden upon the latter, ed on March 30, 1892, by E. R. Tyrrel, who who ought, in fairness, to bear it, provided was then the owner of the real premises it will not work injustice or disturb the

The contest here is between a prior | of the judgment. The plaintiff is allowed mortgage, recorded April 6, 1892, which was costs and disbursements in this court and in satisfied of record July 2, 1901, and a second the court below. mortgage, recorded December 23, 1895, which was assigned to the plaintiff after the satisfaction of the first had been recorded. The fact that the intervening lien was of record does not preclude the defendant from alleg ing and proving that she was in fact ignorant of its existence when she caused the first mortgage to be released. Pearce v. Buell, 22 Or. 29, 35, 29 Pac. 78; Kern v. Hotaling, 27 Or. 205, 213, 40 Pac. 168, 50 Am. St. Rep. 710; Capital Lumbering Co. v. Ryan, 34 Or. 73, 54 Pac. 1093.

been sued separately, a default judgment could be rendered against one of them, Code Civ, Proc. § 579, permitting judgment against one defendant in the court's discretion, in an action against several, leaving the action to proceed against the others whenever a several judgment is proper, and section 585, providing that, if in actions of this character defendant fails to answer, the clerk may enter his default, "and thereafter the plaintiff may apply to the court for the relief demanded in the complaint."

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 156; Dec. Dig. § 98.*]

8. JUDGMENT (§ 631*)-JUDGMENT AGAINST ONE OF SEVERAL WRONGDOERS AS SATISFAC

TION.

No bar arises as to any wrongdoer till the injured party has received satisfaction, or what in law is deemed its equivalent; and a judgment against one wrongdoer which remains wholly unsatisfied is not such satisfaction.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1147; Dec. Dig. § 631.*] 9. JUDGMENT (§ 241*)-DIFFERENT JUDGMENTS AGAINST WRONGDOERS FOR THE SAME ACT. Different judgments against different wrongdoers for the same wrongful act may be for different amounts, and the same result may follow where there is one action only against all the wrongdoers.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 426; Dec. Dig. § 241.*] 10. TRIAL (§ 335*) - SEVERANCE AND APPOR

TIONMENT OF DAMAGES FOR SINGLE ACT.

In an action for a single wrongful act, the damages cannot be severed and apportioned by the jury among the several defendants.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 788; Dec. Dig. § 335.*] 11. JUDGMENT (§ 241*)—SEVERANCE OF DAMAGES FOR SINGLE ACT.

already specified. The action was commenced in the superior court of the city and County of San Francisco on February 13, 1907. Summons was duly served on both defendants on February 15, 1907. Defendant Wilson having failed to appear within the time allowed by law, his default was entered on March 1, 1907. The other defendant appeared, and filed a demurrer and a motion to strike out a portion of the complaint. On March 22, 1907, the motion to strike out was granted. The effect of this order was simply to strike out the following: "That it cannot now be told what the permanent effects of the said injury will be other than the loss of the said toes of the plaintiff, and for that reason the plaintiff avers that his damage will be continuous and increasing." It does not appear that the demurrer was sustained, and the striking out of this portion did not leave it any way defective. It alleged in another place the loss of three of plaintiff's toes by reason of the negligence, and also that thereby plaintiff "has been permanently maimed, injured, and crippled." On March 29, 1907, defendant Wilson not having appeared, the court proceeded with the hearing of the cause as to him; he not being present and not having been notified. The court found that he had been regularly served, and that his default had been duly entered, and that all of the allegations of the complaint are true except that as to the amount of damage. It further found that the damage was $6,318, and ordered a judgment against Wilson accordingly. The findings and decision were filed on March 29, 1907, and judgment was given against Wilson for that amount on the same day, and entered on March 30, 1907. On April 1, 1907, plaintiff filed an amended complaint. This was an exact copy of the original, except that the matter that had been stricken out was omitted, and in lieu thereof there was inserted the following: "That the injuries of plaintiff are permanent; that his damage will be continuous and increasing." The amended complaint was not served on Wilson. On May 24, 1907, the other defendant filed its answer thereto, and at the time of the hearing of the motion hereinafter referred to the cause was at issue between plaintiff and said defendant on said amended complaint and said answer. On June 15, 1907, Wilson made his first apANGELLOTTI, J. This action was one pearance in the action by moving to vacate for the recovery of $6,618 damages for per- the default and judgment against him, on the sonal injuries alleged to have been suffered ground of excusable neglect on his part in by reason of the negligence of defendants. theretofore failing to appear and answer, The complaint alleges that the "defendants, and also on the grounds that the judgment their servants, agents, and employés" negli- was inadvertently rendered by the court, was gently threw from a building into a street irregular, and was without the jurisdiction along which plaintiff was passing a "heavy of the court. This motion was denied on solid plank" in such a manner that it struck July 28, 1908, and this is an appeal by Wilplaintiff, inflicting upon him permanent and son from the order denying his motion. other injuries, by all of which he had been Learned counsel for appellant frankly addamaged "at the present time" in the summit that, so far as their motion was based

In an action for a single wrong the damages cannot be apportioned among the several defendants; but there is no severance of damages because, after a default is entered against one defendant, plaintiff is allowed to proceed and obtain judgment against the other for a different

amount.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 424, 426; Dec. Dig. § 241.*]

Department 1. Appeal from Superior Court, City and County of San Francisco; F. J. Murasky, Judge.

Action by O. R. Cole against the Roebling Construction Company and James Wilson. From an order denying a motion to vacate a default judgment against defendant Wilson, he appeals. Affirmed.

Wm. M. Abbott and J. J. Lerman, for appellant. Hiram W. Johnson and D. M. Duffy, for respondent.