38 232 41 407

or the right to sell or dispose of it, so long as they acted in good faith. Nor is the fact that they were anxious to consummate the exchange, and to have the necessary deeds and papers executed and delivered, before plaintiff could commence his threatened action, and seize the property under attachment, sufficient of itself to impeach the transaction: Bump, Fraud. Conv. (2 ed.), 36, 37. Both of these matters are badges of fraud, notwithstanding which the transfer may be shown to be valid, and to have been made in good faith. It is argued that no consideration was paid by Ingalls for the property. But the evidence shows that the Arizona property, which they gave in exchange, was valued at about, $2,000, and was soon afterwards sold by the Beechlers at public auction for $1,600; and there is no testimony to indicate that the Sellwood property they received in exchange was of any greater value. Indeed, the real estate was covered at the time by the mortgage which subsequently absorbed it, and the stock of drugs and the good will of the business were worth not to exceed $1,000 or $1,500; so it seems that an adequate and full consideration was paid by the Ingallses for the property received by them. It follows that the decree of the court below must be reversed, and it is so ordered.

REVERSED.

Argued 14 November; decided 26 November, 1900.

GERMAN LOAN SOCIETY v. KERN.

[62 Pac. 788; 63 Pac. 1052.]

SUFFICIENCY OF DESCRIPTION IN MORTGAGE.

1. A description in a mortgage foreclosure complaint as a certain defined tract, "excepting two acres owned by" a person named, and "also excepting land now occupied by W. R. R. Company, about one-half acre, also excepting a tract of ten acres situate near the center of said section, and occupied by L," is sufficiently accurate on its face to enable an officer to execute a decree that follows it.

FORECLOSURE

OBJECTION TO DESCRIPTION BY MORTGAGOR.

2. A mortgagor will not be heard to object to a defective description in a complaint for the foreclosure of his mortgage where the complaint follows the mortgage, whatever may be the effect of the sale.

MOTION TO STRIKE OUT - - WAIVER OF OBJECTION BY ANSWERING.

3. Where defendant answered after the overruling of a motion to strike out a complaint because of a defective verification, it was a waiver of the right to appeal from the denial of the motion: State v. Chadwick, 10 Or. 423, cited.

EXECUTION ON FORECLOSURE - NECESSITY OF LEVY.

4. In cases of sales on mortgage foreclosure decrees it is not necessary to levy on the property: Bank of British Columbia v. Page, 7 Or. 454, followed.

5. A return on an execution wherein the sheriff certifies that he had advertised the sale "by posting copies of said notice in three public places in this county, viz., ** ** for four weeks successively," but does not show the date when the notices were posted, is sufficient, since the presumption is that the officer's duty was regularly performed, and it is only in cases where such notice is jurisdictional that particularity of statement is required: Bank of British Columbia v. Page, 7 Or. 454, followed.

DESCRIPTION IN NOTICE OF FORECLOSURE SALE.

6. A notice of sale on a foreclosure decree which describes the prem ises as they are described in the mortgage and decree is sufficient.

MORTGAGE FORECLOSURE - LIABILITY FOR USE AND OCCUPATION. 7. A statute requiring a bond given on appeal from a mortgage foreclosure decree to be conditioned for the payment of the value of the use and occupation of the mortgaged premises during the pendency of the appeal, not exceeding a certain sum to be fixed by the court, does not contemplate that the trial judge shall fix in advance the value of such use, and a surety on such bond is not liable absolutely for the amount named in the bond, but is liable for only the reasonable value of such occupation, not exceeding the amount fixed by the trial judge, to be ascertained in an action at law.

MORTGAGE FORECLOSURE FORM OF EXECUTION.

8. Under Hill's Ann. Laws, § 414, providing that if, on the foreclosure of a mortgage, it shall appear that a personal obligation has been given, in addition to the mortgage securing the debt, the court shall decree a recovery of the amount of the debt, as in an ordinary judgment for the recovery of money; and Section 417, providing that when the decree is for a foreclosure and sale and also against the defendants, or any of them,

personally, and the proceeds of the sale of the mortgaged property is insufficient to pay the entire sum found to be due, payment of the balance "may be enforced by execution as in ordinary cases," a decree giving a personal judgment against the mortgagor for the amount of the debt, and foreclosing a mortgage given to secure it, is one entire decree, and in appealing therefrom the appellant must give a bond conditioned to pay the expenses of the appeal and also any deficiency remaining after the sale of the mortgaged premises, and such bond is enforceable according to its terms, whether it was given before or after the sale.

From Multnomah: JOHN B. CLELAND, Judge.

This is a suit by the German Savings & Loan Society to foreclose a mortgage given by the defendants J. W. Kern and wife to secure the payment of $50,000. The description of the premises, as given in the mortgage and complaint, contains the following provision: "Excepting from all the above-described land two (2) acres owned by School District. No. 2, Multnomah County, Oregon; also, excepting land now occupied by Waverly & Woodstock Railroad Company, about one-half acre; also, excepting a tract containing ten (10) acres situate near the center of said section twelve (12), and being now occupied by L. E. Kern." Within the time to answer, the defendants moved for an order requiring the plaintiff to make its complaint more definite and certain, by particularly describing the excepted tracts. This motion was overruled, and, a motion to strike the complaint from the files for want of verification being likewise overruled they answered; and on the trial a decree was rendered in favor of the plaintiff, from which defendants appeal. An execution was subsequently issued on the decree, and the mortgaged property sold by the sheriff. In his return the sheriff certifies that he advertised the property for sale "by publishing a notice thereof, of which the attached is a true copy. in the Pacific Christian Advocate, a weekly newspaper printed and published in this county, and having a general circulation, once a week for four successive weeks, commencing

with the issue of the eighteenth day of May, 1898, and ending with the issue of the fifteenth day of June, 1898, which said notice particularly described said real property, and stated that the same would be sold by me at the court-house door in said county and state on the seventeenth day of June, 1898, at 10 o'clock A. M., and by posting copies of said notice in three public places in this county, to wit, one of said notices upon the bulletin board in the court-house, one upon the bulletin board in the postoffice in the City of Portland, said county and state, and the third upon the public signboard on Union Avenue, betwen East Oak and East Pine streets, in said city, for four weeks successively." Objection was made to the confirmation of the sale on the ground (1) that no levy under the execution had been made by the sheriff; and (2) that his return did not set forth the dates upon which the notice of sale was posted. These objections were supported by the affidavit of defendant J. W. Kern, to the effect that no levy was in fact made by the sheriff, nor did such officer post a notice of sale on the bulletin board on Union Avenue, nor was there any bulletin board there at the time claimed by the sheriff in his return to be the one upon which he posted notice. A counter affidavit of James M. Stott, the deputy sheriff, was filed, in which he says it was the practice of the sheriff's office for H. W. Thielsen, the chief deputy, to post one notice of sale on executions, and the remaining two copies were given to the affiant to post elsewhere; that it was his uniform custom to post one on the bulletin board in the postoffice, and the other upon a certain bulletin board on Union Avenue, between East Oak and East Pine streets; that in the present case two copies of the notice of sale were delivered to him by the chief deputy on May 19, 1898, and "that upon the same day I posted one of said copies upon the said bulletin board in the said postoffice, and proceeded to the said bulletin board in said East Portland, above referred to, to post the remaining copy of

said notice thereon; that upon my arrival at said point I failed to find said bulletin board, and I thereupon posted said notice upon a public signboard some fifteen feet to the north of the point where said bulletin board usually stood, and had stood for several years prior to said day." The objections to the confirmation of sale were overruled, and the sale confirmed. From this order also the defendants J. W. Kern and wife appeal. AFFIRMED.

For appellants there was a brief over the names of William Wallace Thayer and Henry St. Rayner, with an oral argument by Mr. St. Rayner.

For respondent there was a brief and an oral argument by Mr. Milton W. Smith.

MR. CHIEF JUSTICE BEAN, after stating the facts, delivered the opinion of the court.

Although the two appeals in this case were argued and submitted separately, they will be considered as one, for the purposes of the opinion of the court.

I. The motion to make the complaint more definite and certain was properly overruled. The description of the premises in the complaint follows the mortgage, and, if the portion attempted to be excepted is not sufficiently described, the mortgage, in any event, covers whatever interest the mortgagors may have in the entire tract. Cases are cited to the effect that a complaint for the foreclosure of a mortgage must so describe the premises that if a sale is ordered the officer may know on what to execute the order, and if the description in the mortgage is insufficient for such purpose, but good as between the parties, the defective description should be aided by amendments in the complaint: Struble v. Neighbert, 41 Ind. 344; Halstead v. Board of Com'rs, 56 Ind. 363. But the description in this case is sufficient, and