onus v. RUNEY. 17
not belong to him but to the plaintiff, for whose use and beneht the
defendant is thereafter deemed to have received it.
On the argument, however, counsel for the defendant undertook to
put a new face on the facts by citing and reading the opinions of the
supreme court in the case of Trullinger v. Kqfoed, 7 Or. 228, and 8 .
Or. 436. But while a reference to these opinions may give the court
a knowledge of some matters connected with said case not contained
in the complaint, they cannot be allowed to vary the legal effect of
the facts stated therein. The case before the court is confined to the
facts stated in the complaint. But really there is nothing in the rc-
ports of Trullinger v. Kofced contrary to the case stated in the com-
plaint. V
From the report in 7 Or. it appears that a suit was brought by
Trullinger to enforce a mechanic’s lien against certain property of N.
Kofoed and Mary, his wife, in which suit G. W. Parker and B. G.
Crane, mortgagees of the same property, were made defendants, and
also Peter Runey, who claimed a lien thereon byvirtue of a mechan-
ic’s lien and a mortgage for the same debt,--the former being prior
in time to Crane’s mortgage and the latter subsequent thereto. And `
thereupon a controversy arose between the plaintiff and defendant
herein as to which of them had the prior lien. The court below de-
cided the question in favor of Runey, and directed the proceeds of
the sale of the property, which amounted to $4,218.20, to be distrib-
uted accordingly, which was done; but, on an appeal to the supreme
court, it was decided that Runey, by taking a note and mortgage for
his debt, waived his mechanics lien, and the decree in this respect
was reversed, and direction given for a decree postponing the payment
of Runey`s claim to that of Crane’s. From the report of the case in
8 Or. it appears that the appeal was not taken by Crane until after ,
the order conhrming the sale was made, and that it was then taken
both from the decree determining the rights and priorities of the par-
ties, as well as such order; and that, on the hearing, the courtro-
manded the case, with the further direction that a resale be made. ,
The court below made the order for resale in pursuance of the man- `
date, but it does not appear that any such sale has been made; and
counsel for the defendant insists that the plaintiifsremedy is by means
of this resale. But unless the property will sell for more than it did
before,—and it is not likely that it will,—a resale will be of no ben-
efit to any one, and a useless expense to whoever undertakes it; and
the plaintiff is under no obligation to resort to it, if it would.
The property brought enough to pay his claim, or so much of it, at
the first sale. But this amount,—$1,216,25,-instead of being paid
to him, was, in pursuance of the erroneous decree, paid to the defend-
ant, who is, by the reversal of such decree, bound to restore the same
to the plaintiff, without any reference to the order of resale, with in-
terest from the date of such reversal. The order of resale was pre-
sumably made for the benefit of the defendant, whose claim is now
v.26F.no.1—2