In the petition for rehearing filed by Foy C. Belcher, the appellant, appears the following:
"Since the statements on the first paragraph appearing on page 394 of volume 28 of Advance Sheets will go down to posterity and may affect future decisions and also since in one respect that paragraph bears upon the merits and equities of the case, we shall first direct our attention to that paragraph. The court says: `During all that time the defendant was in possession of the property. He does not suggest that a reasonable rental, as due from him, be offset against his claim. Without offering himself to do equity, he asks that the equitable principle of subrogation be applied in his favor.'
"This paragraph if allowed to stand would indicate that a mortgagee would be entitled to rent for property even before the mortgage was ever foreclosed. It is our belief that the court does not intend to lay down such a rule as final. Regardless of the consideration that the court gives to the defendant on this petition or on a rehearing, it would seem unadvisable to permit such conclusion to stand."
In our former opinion it was pointed out that in 1929 Foy C. Belcher purchased from his mother the property here involved. The consideration of the purchase was the payment of four dollars to his mother and the agreement on his part to assume and pay the existing city liens and taxes against the property and the first mortgage held by the Bank of Sellwood.
In his answer in the suit instituted by the plaintiff to foreclose his mortgage the defendant asked that the mortgage to the Bank of Sellwood be reinstated; that he be subrogated to the rights of the bank under that *Page 353 mortgage; and that he be decreed a lien on the real property covered by both the bank's mortgage and that of the plaintiff prior and superior to plaintiff's lien, for the amount which the defendant has paid in taxes and assessments and to discharge the Bank of Sellwood mortgage. This claim is made by the defendant not in the capacity of owner of the legal title of the property but as one asserting the right of subrogation to the bank's lien under the pre-existing mortgage. Therefore, since he has been in possession of the property, enjoying the use of it, since 1929, he would be, in enforcing a claim such as above asserted, virtually in the position of a mortgagee in possession; and the reasonable rental value of the property should in that case be applied toward extinguishing the indebtedness due him as such mortgagee: 19 R.C.L. 326-328; 41 C.J. 612.
The statement above quoted from our former opinion was therein made in answer to the defendant's assertion that the equities of the case lay solely with him, and did not in any way affect the legal proposition on which our decision rested. Inasmuch as the appellant voices a belief that that statement might lead to confusion in the future, we have considered it advisable to give the explanation herein contained.
In a "supplement to petition for rehearing" the appellant has suggested that in the event a rehearing be not granted the decree should at least be modified so as to grant to Mrs. Belcher, the mother of the appellant and the respondent, a life interest in the property covered by the mortgage sought to be foreclosed by the respondent. In this connection our attention is directed to the testimony of the plaintiff, who stated that he was willing that his mother occupy the property "without *Page 354 having to pay interest or rent, as long as she lives". Courts are not empowered to make new contracts between litigants or between one of the litigants and a third party.
The only other question raised by the petition and the supplement is a reiteration of the defendant's contention that he is entitled to subrogation to the rights of the mortgagee whose claim he satisfied. We see no reason for departing from our former holding. The petition for rehearing is therefore denied.
RAND, C.J., and BELT and LUSK, JJ., concur. *Page 355