Decided 17 July, 1906.
ON Motion roe Rehearing.
Mr. Justice Haileydelivered the opinion of the court.
The petition for rehearing in this case was filed February 28, 1906. We have carefully considered the questions therein presented, and in so doing have reviewed the entire record in the case. The only question raised in the petition for rehearing that is not fully discussed in the opinion heretofore rendered is that of the effect of the supplemental agreement of November 27, 1896, between the plaintiff, Marquam, and his wife, the Title Company, and the Northern Counties Investment Trust, Limited. The plaintiff contends that this supplemental agreement explains more fully the purposes of the other agreements and confers a power of sale upon the Title Company by the following language used therein :
“It is stipulated that the properties mentioned in the said trust agreements and hereinafter described, and the proceeds which may arise from them, either from rents, issues and profits or from sales, shall be held by said Title Guarantee & Trust Company, under said existing trust agreements and hereunder until such time as that the *422indebtedness due upon the judgment hereinbefore mentioned, together with the legal interest thereon, shall be fully paid and satisfied, or until the trust'fund and trust properties by The Title Guarantee & Trust Company held under the said trust agreements shall become exhausted; but this agreement shall not be construed as impairing the priorities already created by the said several trust agreements above-mentioned, including any past or future advánces made according to their terms, or entitle the Northern Counties Investment Trust, Limited, to any payments from the trust fund on account of said indebtedness due it, until all of the rights or interests in any of the said properties, and the trusts created therein in any of the parties mentioned in the said trust papers are fully satisfied, in accordance with the said trust papers, save and excepting the interests and rights therein of P. A. Mar-quam and Emma Marquam, or either of them, but as to them the right is now created and intended to be conferred on the Northern Counties Investment Trust, Limited, as a beneficiary of the trust fund and estate in the hands of the said The Title Guarantee & Trust Company, shall be deemed prior to any interest or right therein of the said P. A. and Emma Marquam, whom it is intended by this agreement to postpone to the interest in the said properties in the Northern Counties Investment Trust, Limited.”
11. There is nothing in the supplemental agreement that attempts to change the character of the prior agreements ; but, on the contrary, it declares that “this agreement shall not be construed as impairing the priorities already created by the said several trust agreements above mentioned.” The purpose of this agreement was to postpone the rights of Marquam and wife under the former agreements recited in the opinion to the rights given by this agreement to the investment company, which had a judgment against Marquam for $6,746.57, dated August 25, 1895. It simply added the claim of the investment company to the claims already secured by the former agreements, and postponed all rights of Marquam and wife in *423the property mortgaged to the claim of the investment company, which was given the priority over Marquam and wife, hut did not alter or change the character of the existing agreements between the parties whose claims were secured by the property held by the Title Company. The utmost that could be claimed for it is that it conferred a power of sale upon the Title Company; but such sale under our statute could only be made under a decree of foreclosure as provided in Section 423, B. & C. Comp : Thompson v. Marshall, 21 Or. 171, 178 (27 Pac. 957).
12. Such a power of sale could not alter the character of the agreements between the parties, so long as the object was to secure the payment of debts due the parties mentioned in the several agreements. The object of the original agreements was to secure the payment of certain debts therein specified, and the supplemental agreement merely confirmed these prior agreements and the rights of the several parties thereunder, and gave a priority to the investment company to the amount of its claim over the rights of Marquam and wife, who were to have all the property covered by the deed'to the Title Company reconveyed, so that Marquam should be repossessed of the fee thereof and his wife reinstated as to her dower therein when the several claims of the other parties had been paid. The supplemental agreement is in effect a junior mortgage from Marquam and wife in favor of the investment company, and in no wise affected the terms of the other agreements or the mortgage given to the United States Mortgage Company, by which the sale of the property was made under a decree of foreclosure.
After full consideration of the case we are all agreed that the former opinion was correct, and the petition for rehearing will therefore be denied.
Reversed : ReheariNg DENIED.