among the children of said Alexander Brown, then deceased. In order to make the partition, said east half of the claim was divided into parcels, numbered respectively from one to six, inclusive, and designated as lots, two of which, lots 5 and 6, are the parcels in controversy. Lot 6 was set apart to Sarah McIntyre, the appellant, a daughter of the deceased, and lot 5 was set apart to another daughter, Nancy J. Brown, now Nancy J. Dray; and (3) a warranty deed to said lot 5 from Nancy J. Dray and her husband, dated December 18, 1883. The respondent then offered in evidence a writing, under seal, which they claimed to be a deed to said lot 5 from said Nancy J. Brown to William Stephens. The instrument was not acknowledged, but an attempt had been made to prove its execution, which was indorsed thereon as follows:

"State of Oregon, County of Multnomah. I, F. R. Strong, a notary public in and for said county and state, do hereby certify that on this twenty-first day of September, 1883, personally appeared before me, P. A. Marquam, one of the subscribing witnesses to the above and foregoing deed, and acknowledged to me that he resides "in the county of Multnomah and state of Oregon, and has resided in said county and state for a long time prior to the date of said deed and that he personally knew Miss Nancy J. Brown, the person described in and who executed said conveyance, and that the above and foregoing deed was signed and executed by Miss Nancy J. Brown, the grantor named therein, on the twenty-sixth day of October, 1864, the day it bears date, and that the said P. A. Marquam and one G. B. Gray, at the request of said Nancy J. Brown, and in her presence, signed our respective names as witnesses thereto; and thereafter said deed was delivered by said Nancy J. Brown to said William Stephens, the grantee named therein. And I further certify that I am personally acquainted with said P. A. Marquam, the said subscribing witness, and have been so personally acquainted with him for over fifteen years.

"In witness whereof, I have hereunto set my hand and seal the day and year in this certificate first above written. [Notarial Seal.]

"F. R. STRONG,

"Notary Public for Oregon." During the trial a certificate was obtained from T. A. Wood, a notary public, and indorsed upon the deed, which was intended to obviate the objections to the foregoing. The deed thus certified was admitted against the appellants' objections. The respondent then offered in evidence what was claimed to be a deed from the appellant to William Stephens to said lot 6. The descriptive part of the deed. is as follows:

"All the right, title, and interest of the said Sarah Brown in and to the donation land claim of Alexander Brown, deceased, late of Multnomah county, in the state of Oregon, and more particularly designated and known as lot No. 5 of said donation land claim, as surveyed, designated, and set apart to the said Sarah Brown, heir-at-law of said Alexander Brown, deceased, by the probate court of said Multnomah county, in the state of Oregon; reference thereunto being had, as will more fully appear in the records of said court.”

This deed was also admitted in evidence against the appellants' objection. Upon these facts the court directed a verdict for the respondent, and from the judgment entered thereon this appeal is taken.

A. II. Tanner and R. E. Bybee, for appellants.
Joseph Simon, for respondent.

WALDO, C. J. The practice of proving a deed for the purpose of having it recorded grew up in New York in colonial times as a part of the common law of the state. Van Cortlandt v. Tozer, 17 Wend. 338; S. C. 20 Wend. 423. We have no such common-law practice in this state. We doubtless take judicial notice at common law of what is termed "an acknowledgement of a deed." Morris v. Wads worth, 17 Wend. 113; Pidge v. Tyler, 4 Mass. 541. But, apart from the express exactment of our statute, we do not know what is intended by the expression "proving a deed" for purposes of registration. Nevertheless, the legislature, in enacting the statute, seemed to have supposed that they were legislating upon a subject well understood in the law, and hence, doubtless, arose what is obviously an imperfect explanation of the mode in which proof shall be made, and the manner in which it shall be certified. The term is first seen in the Laws of Oregon Territory of 1854, page 478, and, as may be drawn from the preface and the marginal references to the text, was a transcript from the laws of New York. That fact, under the circumstances attending the publication of the laws of that year, gives to the decisions and practice of the courts of New York prior to the enactment of our statute the weight of authority in its construction. According to the practice in that state, which may be taken as a declaration of the law, it seems to have been necessary, not only that the witness should be sworn, which might seem otherwise obvious, but that that fact should be stated in the certificate. Jackson v. Livingston, 6 Johns. 149; Jackson v. Osborn, 2 Wend. 555; Bradstreet v. Clarke, 12 Wend. 673; Norman v. Wells, 17 Wend. 137; Van Cortlandt v. Tozer, Id. 338; Carver v. Astor, 4 Pet. 82.

The case of Hunt v. Johnson, 19 N. Y. 292, (not cited by counsel,) seems, indeed, to support the defendant's position, that the certificate need contain only what the statute expressly specifies it should contain. But the decision seems to overlook the fact that there was a law governing the subject in New York prior to the statute, which should be considered in the construction of the statute; and also seems to have overlooked what seems to have been a uniform practice the other way. Nor can the decision be upheld on principle which requires the facts to be stated in the certificate, that the court may see that the deed was duly proved. MARSHALL C. J., Ross v. McLung, 6 Pet. 287. The power of the officer in taking the proof may be likened to that of an inferior court, "which ought not to show things only by implication, but ought to show them expressly." Barnaby v. Goodale, Style, 2.

It is sufficient at present, without examining the certificate in other particulars, that the certificate must be held bad because it does not show that the witness was sworn, and on this ground it was rightly excluded by the court below. The result was that the record title was

in the plaintiff. It followed, then, that if the certificate of the notary, Woods, made at the trial, was otherwise valid, no other effect could be given to it than if the witness himself had been produced, and proved the deed at the trial. On this point we agree with Mr. Justice CAMPBELL in Shotwell v. Ilarrison, 22 Mich. 423, that the recorded deed is prima facie evidence of everything necessary to give it validity. This being a controversy between legal titles, the defendants could have assailed the plaintiff's title on the ground of notice or want of consideration at law. Jackson v. Burgott, 10 Johns. 457. But the burden was on the defendants to set up the facts invalidating the plaintiff's title, and to prove them at the trial. Monroe v. Thomas, 1 Or. 201; Ryder v. Rush, 102 Ill. 340. As this was not done, it was error to admit the deed on the Woods certificate alone, and direct a verdict for the defendants as to said lot.

The description in the deed from Sarah Brown to William Stevens was sufficient to convey lot 6. The case comes within the rule laid down in Stukeley v. Butler, Hob. 172, where, showing that a contradictory explanatory clause will not avoid what was sufficiently granted before, it is said:

"As, if I have in D. blackacre, whiteacre, and greenacre, and I grant unto you all my lands in D.,-that is to say, blackacre and whiteacre,-yet greenacre will pass too."

And see Bell v. Potts, 5 East, 49; Jackson v. Loomis, 18 Johns. 81; Worthington v. Hylyer, 4 Mass. 196; Raymond v. Coffey, 5 Or.

132.

It follows that the judgment of the court below must be affirmed as to lot 6, and reversed as to lot 5, and a new trial ordered, with leave to the defendants to apply to the court below for leave to amend their answer.

(12 Or. 267)

HOVENDEN V. KNOTT and others.

Filed May 11, 1885.

FORECLOSURE OF MORTGAGE-CONTROVERSY BETWEEN DEFENDANTS.

In proceedings in a case of foreclosure of mortgage, any matters brought into controversy by the defendants inter se, are not properly before the court, and should not be considered in the decree.

Appeal from Multnomah county.
H. T. Bingham, for appellants.

J. C. Moreland, for respondent Hovenden.
Alfred F. Sears, for respondents Estes.

THAYER, J. This appeal is from a decree of the circuit court for the county of Multnomah, rendered in a suit brought by the respondent Hovenden against Levi and Mary E. Knott, and Jennie E. and Levi Estes, to foreclose a mortgage upon certain real property situated in the city of Portland. The mortgage was executed by Jennie E. and Levi Estes to the said Hovenden, as collateral to a promissory note,

also executed by the former to the latter party, and indorsed by the said Levi Knott. The property mortgaged was owned by Jennie E. Estes, who is the wife of said Levi Estes. Levi Knott was alleged to have had some interest in the mortgaged property, and the said Mary E. Knott, who is the wife of the said Levi Knott, seems to have been made a party to the suit in consequence of that fact alone. After the summons had been served upon all of the defendants in the suit, the defendants Levi and Jennie E. Estes filed the following paper, which they termed an answer:

"Now come the defendants Levi Estes and Jennie Estes, and for their separate answer herein, and for cause of relief against the defendant Levi Knott, allege: That the note and mortgage described in the complaint were executed and delivered by the defendants Levi Estes and Jennie Estes for the accommodation of the defendant Levi Knott, and these defendants never received any consideration therefor, and the same were made and given to the plaintiff at the request of said defendant Levi Knott, as aforesaid, and upon his promise that he would pay the same at maturity, of all which facts the plaintiff had full knowledge; that the said Levi Knott is possessed of sufficient funds to pay said note, and has abundant property, not exempt from execution and unincumbered, available therefor. Whereupon, these defendants pray that a decree may be entered in accordance with said facts: First. That said Knott be decreed to be the principal debtor primarily liable for said debt and demand of plaintiff, and that said demand be satisfied, first, out of the property, personal and real, of the said Levi Knott. Second. That these defendants and the real property owned by said mortgagee be declared generally liable, and that the plaintiffs be entitled to judgment against them, and to the subjection of their property to foreclosure after the exhaustion of the remedy aforesaid against said defendant Levi Knott, in case any deficiency exists. For such other and further relief as to equity and good conscience appertains." Whereupon the defendant Levi Knott filed the following paper, which he termed a reply:

"Now comes defendant Levi Knott, and, replying to the answer of Levi Estes and Jennie Estes, herein filed, denies that the note and mortgage described in said complaint were executed or delivered by the defendants Levi Estes and Jennie Estes, or either of them, for the accommodation of this defendant; denies that said Levi Estes and Jennie Estes never received any consideration for said execution thereof; denies that said note and mortgage were made or given to the plaintiff at the request of this defendant as in said answer aforesaid, or at all made or given at the request of this defendant; denies that said note and mortgage, or note or mortgage, were made or given upon this defendant's promise that he would pay the same or any part thereof at maturity or at all; denies that of said facts, or any of them, said plaintiff had full or any knowledge. Said defendant, further replying to said answer, alleges that said note was indorsed by this defendant without consideration for the accommodation of said defendant Levi Estes, at his request, and upon his express promises and agreement that he would at maturity pay the same and hold this defendant harmless therefor. Wherefore, this defendant prays for a decree that said defendants Levi Estes and Jennie Estes be decreed to be the principal debtors, and primarily liable for said debt and demand of plaintiff, and that, as between said defendants and this defendant, said demand be satisfied first out of the property of said Levi Estes and Jennie Estes, and the mortgage sought to be foreclosed in the suit be decreed to be primarily liable for the payment of said debt."

Neither of the defendants attempted in any manner to defend against the suit of the plaintiff, or pretended to have any defense whatever to it. There are cases in which it is necessary to settle conflicting claims between co-defendants before a complete decree can be made upon the subject-matter of the suit. In the foreclosure of a mortgage, where there are subsequent incumbrances, it is often required to adjust their priority of equities in order to determine how the surplus fund shall be applied, as in Ladd v. Mason, 10 Or. 308; but this altercation between Estes and wife and Levi Knott was clearly extrajudicial. The circuit court had no more authority to undertake in the proceeding before it to determine their differences as to which was the principal debtor, and which the surety, if they sustained any such relation, than it had to adjudicate upon any other dispute between them. It was wholly foreign to the object of the suit, and unnecessary to its determination. If the facts alleged by Estes and wife in their pseudo-answer to this complaint are true, they could have pursued either of two remedies: they could have paid off the judgment recovered by Hovenden, and have recovered the amount from Knott by action or suit, or, after the obligation became payable, they could have maintained a suit against Knott to compel him to pay it. The latter remedy is in the nature of a bill quia timet, and is maintainable either before or after the creditor commences suit to enforce payment of the debt. It is sustained upon the grounds of the implied agreement upon the part of the principal debtor with his surety to pay the debt at its maturity, and when he fails to do so the latter may institute his suit, without having paid the debt, to compel the former to discharge it. Pom. Eq. Jur. § 1417, and note 2; Story, Eq. Jur. § 849.

Estes and wife have entirely mistaken their remedy in this case, and the court went beyond the confines of its power. It had no authority in the case before it except to decree a recovery of the amount of the debt against Levi and Jennie E. Estes and Levi Knott, a foreclosure of the mortgage, the sale of the mortgaged property, and the application of the proceeds to the payment of the said debt. And every act it did in the premises, in attempting to adjust the rights of the defendants as between themselves, was coram non judice. A de-,. cree should be returned in favor of the said plaintiff, and against the said defendants Estes and wife, and Levi Knott, in accordance with the principles of this decision, and the decree appealed from modified so as to conform thereto. The two parties, Estes and wife and Levi Knott, should each pay one-half the disbursements incurred in the litigation between themselves, and on this appeal, which amount should include any disbursements the plaintiff may have incurred in regard thereto.