8 Wash. 267 | Wash. | 1894
The opinion of the court was delivered by
— This action was brought by appellant in the superior court of Chehalis county to foreclose a mortgage on certain real estate. Said mortgage was executed by John and Sarah Pace Henson to appellant, February 7, 1891. Respondent Willey and defendant Cormier were made parties defendant, under an allegation in the complaint that they had or claimed some lien or interest in the mortgaged premises which was alleged to be subject to the mortgage lien of appellant. The defendants, excepting respondent Willey, failed to answer, and default was entered against them. Respondent Willey answered and admitted the execution and non-payment of the note and mortgage set forth in the complaint; and he further alleged that he had an interest in said lands which was superior to the lien of appellant’s mortgage.
The respondent’s claim is based upon the following facts: That the defendant John Henson, on the 28th day of July, 1890, executed a written contract of lease of said lands to the defendant Cormier for the term of five years from said date, at an annual rental of two hundred dollars; which lease provided that at the termination thereof the lessee might remove any building erected by him upon the
Appellant set up, by way of reply .to this answer, that after the recording of appellant’s mortgage and on the 3d day of August, 1891, Cormier then being in default in payment of rent on the lease aforesaid, by mutual agreement between said John Henson and said Cormier, said lease was abrogated and declared to be of no further force, and a new contract in writing was on said date entered into between said Henson and said Cormier, by the terms of which Cormier was to buy the mortgaged premises from Henson subject to the lien of appellant’s mortgage, and that at said time Cormier assumed the payment of appellant’s mortgage, and thereafter paid part of the debt thereby secured.
At the trial respondent offered evidence in support of the allegations contained in his answer, and in rebuttal appellant offered in evidence the deposition of said Cormier wherein he testified in substance that before the alleged recovery by respondent of his judgment against him said lease had been forfeited by him, and that it was abrogated and set aside by mutual agreement of both parties to it; and which deposition also contained further testimony in
The court, upon objection by respondent, refused to admit this deposition as evidence, whereupon appellant offered to prove the facts alleged in his reply by another witness, and such testimony was likewise excluded. It seems these rulings were based on the ground that appellant could not prove any fact in contravention of Cormier’s interest in said property as shown by the records in the auditor’s office, and on the ground that respondent’s judgment became a lien upon such leasehold interest as disclosed by the records, regardless of what the actual claim or interest of said lessee was in said mortgaged premises at the time the lien attached. This was error. The lien of said judgment could only attach upon the actual interest of the judgment debtor in said lands, regardless of the fact that it appeared by the county records that he had a different or greater interest therein. We believe the authorities are practically unanimous in support of this proposition.
Consequently, the testimony offered by appellant in support of the matters alleged in his reply should have been admitted, and it follows that the judgment must be reversed, and the cause remanded for further proceedings.
Dunbar, C. J., and Hoyt, Stiles and Anders, JJ., concur.
