Decided August 4, 1908.
On Petition for Rehearing.
MR. Justice Eakindelivered the opinion of the court.
7. This motion is accompanied by an extensive brief upon the right of a mortgagee in possession, having in good faith made improvements upon the premises, to be reimbursed therefor in case of a redemption, on the theory, that in this case the defendant in good faith supposed he was the owner when he made the improvements, and that plaintiff, with knowledge that defendant was so expending his money, made no protest. There can be no doubt that defendant thought he had such a title that he could hold the property, and on that basis made the improvements; but there can be no question but what he knew on March 29th, when plaintiff tendered him the $100, that the latter was claiming to be the owner, also on April 1st, when plaintiff again claimed his ownership, at which time they tried to compromise by dividing the property, and again on June 7th, when plaintiff tendered the $800 and demanded a deed. Certainly no greater or other protest against the improvements than these were necessary. And it may be a question whether defendant did not act at his peril.
But, even though it were admitted that defendant is entitled to the value of such improvements as he made, *172we cannot consider that question, for the reason that it is not before us. He has defended this suit upon a claim of ownership, and has made no suggestion of any other issue. What evidence was given at the trial as to the improvements was not to determine the amount due upon redemption, but to show his acts of ownership, and good faith, and, as to the claim made in the motion that he was to have a part of the property, has never been asserted by the defendant. This is an equity case, tried here upon the issues made by the pleadings and upon the proofs made at the trial. Plaintiff has not had an opportunity to meet any of these issues, nor has the court had ány notice of them until this motion was filed. In the cases cited in the briefs, so far as I have examined the issues, the question was in some manner raised by the pleadings. Hatcher v. Briggs, 6 Or. 31, is in point upon that question, where defendant admitted his want of title ánd by cross-bill set up his expenditures and his good faith, and asked protection.
As to Kruse’s lease, it is sufficient to say that he is not a party, nor is any claim by him disclosed as an issue, and if he leased from the defendant without knowledge of plaintiff’s rights, or with plaintiff’s consent, equity will protect him. What is said as to the want of issues as to the improvements is true also as to the taxes. They have not been pleaded; but, in view of plaintiff’s offer to include them in his tender, we have added them to the debt so far as they are admitted by him. It will be proper to include in the amount due defendant the $15 paid to the surveyor and the $5 paid for the deed; and to this sum, also, the clerk shall add the amount of taxes paid by the defendant on this property subsequent to the tax for the year 1904, to be ascertained by certificate of the sheriff of the county.
The former decree will be modified to that extent.
Reversed: Modified on Rehearing.