24 Wash. 695 | Wash. | 1901
The opinion of the court was delivered by
This is an action by the appellant, in which she alleges that on the 22d of April, 1891, George R., Carrie B. and Jacob Schorr, at Spokane Palls (now Spokane), made their note for $1,975, payable to the order of one Henry M. Tilford, and, to secure the payment of
The Traders’ National Bank, respondent, answered, setting up several defenses. The only one necessary to be considered, in view of the evidence and findings of fact, is that pleading a former adjudication of the rights of the appellant. This defense is, in effect, that on November 23, 1891, the respondent recovered judgment against George F. and Carrie B. Schorr in the superior court of Spokane county, in a suit therein pending against them; that a transcript of said judgment was on December 14, 1891, duly filed and recorded in the office of the auditor of said Spokane county; that on or about April 17, 1893, the respondent commenced a suit in the said superior court against George F. and Carrie B. Schorr and the appellant Elizabeth N. Brier. The allegations and prayer of the complaint in said suit were as follows:
“1. That it now is, and at all times in this complaint mentioned was, a corporation organized and existing under and by virtue of the national banking laws of the United States of America.
“2. That defendants George F. and Carrie B. Schorr now are, and at all times in this complaint mentioned were, husband and wife.
“3. That on the 23d day of November, 1891, the plaintiff recovered judgment against defendants George F. Schorr and Carrie B. Schorr in the superior court of the state of Washington, in and for Spokane county, in a suit therein pending wherein this plaintiff was plaintiff and the said George F. Schorr and Carrie B. Schorr were defendants, for the principal sum of $327.25, and the further sum of $50 attorney’s fees, and the costs of action taxed at $13.55, which said judgment provided that the same should hear interest at the rate of one and one-quarter per cent, per month from its date, to-wit, November 23,*701 1891, which said judgment was duly rendered by said court upon said date, and duly entered as provided by law.
“4. That a transcript of said judgment, as provided by law, was filed with the auditor of Spokane county, Washington, on the 14th day of December, 1891, and thereafter by him recorded in Volume “C,” Records of Judgments of said county, on page 61 thereof.
“5. That said judgment has been ever since its rendition, and now is, a lien upon the real estate of the defendants George F. and Oarrie B. Schorr, situate in Spokane county, Washington, described as follows, to-wit: [Here follows a description of the property as described in the complaint in this action, as having been conveyed to the appellant by George F. and Carrie B. Schorr.]
“6. That thereafter, and on the 21st day of April, 1892, said defendants George F. and Carrie B. Schorr made, executed, and delivered to defendant E. U. Brier their certain warranty deed of that date, wherein and whereby they conveyed to the said E. U. Brier the above described real estate, for the consideration expressed in said deed of $2,250, and plaintiff alleges that as a matter of fact said deed is wholly without consideration and was made for the purpose of cheating and defrauding this plaintiff and other of the creditors of said George F. and Carrie B. Schorr, and plaintiff also alleges that said land at the time of said conveyance was, and yet is, subject to the lien of plaintiff’s judgment as aforesaid.
“7. Plaintiff further alleges that the defendants George F. and Carrie B. Schorr have no other property out of which plaintiff can make said judgment, save and except the property described in this complaint and the following described real estate, to-wit: [Here follows a description of the property conveyed to Louise B. Stratton as described in the complaint in this action.] And that this last described real estate was upon the 29th day of April, 1892, conveyed by said George F. and Carrie B. Schorr to Louise Stratton with a like purpose of defrauding this plaintiff, and that this plaintiff has commenced suit to subject said property to the lien of plaintiff’s judgment.
*702 “8. That on the 13th day of April, 1893, plaintiff caused execution to issue upon its said judgment, hut there is no property upon which it can levy the same, and out of which it can make the money on said judgment, save and except the two pieces of property described in this complaint.
“Wherefore plaintiff prays judgment against defendants that the said judgment may be declared a lien upon the real estate first above in this complaint described, and that the said deed from said George F. Schorr and Oarrie B. Schorr to defendant E. H. Brier may be set aside and held for naught as against the judgment of plaintiff, and that a decree may be had against defendants authorizing and directing plaintiff and the sheriff of Spokane county to sell said real estate upon the execution issued on said judgment as aforesaid, and for such other and further relief as to the court may seem meet and proper, and that plaintiff may have a decree for the amount of said judgment and attorneys fees and costs and accumulated interest thereon, amounting to the sum of $460.80 and interest thereon from this day; said decree directing the sheriff of Spokane county to sell said land to satisfy the amount of said judgment, or so much of said land as may be necessary therefor, and for costs of this suit.”
Thereafter said defendants, and each of them, appeared in said suit and filed their answers therein. The admissions, denials, and prayer of each were as follows:
“Admit:
“1. Each and every allegation in paragraphs one and two of said complaint contained.
“2. The execution and 'delivery- of the deed in paragraph six of said complaint alleged, at the time therein alleged.”
“Deny:
“1. Each and every allegation in paragraph six of said complaint contained, not hereinbefore specifically admitted.
“2. Having any knowledge or information of the facts alleged in paragraph's three, four, five, seven, and eight*703 of said complaint sufficient to form a belief thereof, wherefore defendants deny each and every allegation in said paragraphs contained.
“Wherefore defendants pray judgment against plaintiff for their costs and disbursements in their behalf in this action expended, and for such other and further relief as to the court may seem meet and just.” .
Said suit was thereafter duly brought on for trial upon the issues so framed, and upon said trial the court made its findings of fact and conclusions of law, as follows:
“This cause coming on to be tried upon the evidence, the court having listened to the testimony and the argument of counsel, finds as proven the following-.
“1. That the plaintiff is a banking corporation organized and existing under and by virtue of the laws of the United States.
“2. That defendants George F. and Carrie 33. Schorr are and have been, at.all times mentioned in these findings, husband and wife.
“3. That upon the 23d day of November, 1891, plaintiff recovered judgment against defendants George F. and Carrie 33. Schorr for the sum of $327.25 principal, $50 attorney’s fees, costs of action $13.55, and interest thereon at the rate of one and one-quarter per cent.. per month from said 23d day of November, 1891, which said judgment has never been paid, and upon which there is now due and owing $-, and interest thereon at the rate of one and one-quarter per cent, per month from this 13th day of October, 1893.
“4. That plaintiff filed its transcript of judgment with the auditor of Spokane county, state of Washington, upon the 14th day of December, 1891, as provided by law, and the same was recorded in book “C,” Records of Judgments of said county, on page 61 thereof, as required by law; and that an execution was issued upon said judgment and returned nulla tona.
“5. That upon the 21st day of April, 1892, defendants George F. and Carrie 33. Schorr conveyed the following described real estate to defendant Mrs. E. N. Brier by*704 warranty deed of that date, for the consideration expressed in said deed of $2,250, to-wit: ■ [Here follows description of property deeded to appellant by George F. and Carrie B. Schorr, as alleged in the complaint in this action].
“6. That plaintiff’s judgment is a lien upon said real estate, and it is entitled to make the same therefrom by execution sale.
“As conclusions of law from the foregoing, the court finds that the plaintiff is entitled to have said real estate sold on execution on said judgment, free and clear of said conveyance, and that the said conveyance to Mrs. E. FT. Brier, defendant, is subject to the said judgment of plaintiff.”
Upon such findings and the evidence the court made its decree as follows:
“This cause coming on to be heard upon the testimony, the court having heard the evidence and listened to the argument of counsel, and being fully advised in the premises, and having made and filed his findings of fact and conclusions of law herein, it is therefore ordered, adjudged, and decreed by the court that plaintiff’s judgment is now, and ever since its rendition has been, a lien upon the following described real estate, to-wit: [Here the decree follows the description of the property conveyed to the appellant as well as that conveyed to Louise Stratton.] That the conveyance made by the defendants George F. and Carrie B. Schorr of said real estate by their warranty leed of date the 21st day of April, 1892, to defendant Mrs. E. FT. Brier, alleged in the complaint and referred to in the findings of fact herein, was and is subject to the lien of the said judgment of plaintiff; and it is further ordered, adjudged, and decreed that plaintiff may proceed to sell the said real estate on execution upon its judgment in manner and 'form as provided by the statutes of Washington and the laws of this state, and that the purchaser at such execution sale shall take all the rights’, title, and interest therein, owned, had, and possessed by the defendants George F. and Oarrie B. Schorr at the*705 time of the rendition of said judgment, to-wit, on the 23d day of November3 1891, to the same extent and degree as it might and would have taken the same had said conveyance by George F. and Carrie B. Schorr not been made to the defendant Mrs. E. FT. Brier; and it is further ordered, adjudged, and decreed that out of the moneys so arising from said sale the sheriff shall pay to the plaintiff the said judgment, costs, interest, and attorneys’ fees taxed therein and accrued thereon, and in addition thereto the costs of this suit, taxed at $30.25.”
That the deed referred to in the pleadings, findings, and decree in said suit is the same deed set forth in the complaint herein, and the realty referred to and described in the pleadings, findings, and decree in said suit, is the same realty described in the complaint herein; that the decree rendered in said suit, and hereinbefore set forth, was not appealed from, and is now in full force and effect; that, relying upon the judgment and upon the decree herein-before set forth, this respondent caused said judgment to be revived by the said superior court upon March 17, 1897, and upon March 25, 1897, caused a writ of execution upon said judgment to issue from said superior court to the sheriff of said Spokane county; that thereafter the said sheriff duly levied upon the property described in the complaint herein, as the property of the judgment debtors Schorr, and thereafter, upon May 1, 1897, duly sold said property at execution sale to this respondent; that after the sale was so made to the respondent it applied to the superior court of Spokane county for an order confirming said sale, and said court, while finding the sale regular in all other respects, refused to confirm it for the reason that the realty sold was the homestead of said judgment debtors; that thereupon respondent appealed from said refusal and order of . the court to the supreme court of the state of Washington, the action of the lower court was by said supreme court reversed (Traders’ National Bank v. Schorr,
The facts as found in the suit of the respondent brought in 1893 against George F. and Carrie B. Schorr and the appellant are undisputed. Is the decree rendered in that action res judicata as to the rights of the appellant in this action ? The court below found as a conclusion of law that, by the decree entered in the suit brought in 1893 by the respondent against the Schorrs and the appellant, the conflicting rights, claims, and interests of the respondent and the appellant were adjudicated and forever placed at rest; that by the order of March 17, 1897, the lien of the judgment of the respondent was revived and continued against the real estate claimed by the appellant; that the appellant was bound by the order of revival; that the respondent was the owner in fee simple of the real estate claimed by appellant, free from any right, title, or interest claimed by the appellant; and that the respondent’s title should be quieted against the appellant. The statute, in force when the original judgment of the respondent against the Schorrs' was obtained and filed in the auditor’s office of Spokane county, was to the effect that the real estate of any judgment debtor, and such as he might acquire, should be held and bound to satisfy any judgment recovered in this state for the period of five years from the day on which the judgment was rendered. The lien on a judgment of the superior court of the county in which the real estate of the judgment debtor was situated was from the date of the rendition of the judgment, if within twenty , days of that time a certified transcript of the judgment was filed and recorded in the county auditor’s office of the county where the judgment debtor’s lands were situated; but, if the transcript was not filed in twenty days from the rendi
“A judgment-lien, binding the present and future real property of the debtor, is a creation of statute laws and has no other existence; a general lien by judgment does not constitute per se a property in the land itself, but only gives a right to levy on the same to the exclusion of adverse interests subsequent to the judgment. Hence a judgment creditor has neither jus in re nor jus dd rem in the debtor’s land, but only the right to make his lien effectual by a sale under execution.” 1 Black, Judgments, § 400.
“A judgment is not a specific lien upon any particular real estate of the judgment debtor, but a general lien upon all his real estate, subject to all prior liens, either legal or equitable, irrespective of any knowledge of the judgment creditor as to the existence of such liens.” Rodgers v. Bonner, 45 N. T. 379.
“. . . the lien of a judgment upon the lands of the judgment debtor is entirely the creature of the statute,
Section 460, 2 Hill’s Code, provides that the real estate of a judgment debtor shall only he held and hound to satisfy any judgment for the period of five" years from the date on which such judgment was rendered; and it also provides that the lien of the judgment on such real estate shall only he for five years, commencing from the date on which the judgment was rendered. Section 463 provides that a revived judgment shall be and continue a lien upon real estate of a judgment debtor for a period of five years after the date of the order of. revival. It seems to us that the legislature has made it so plain there is no room for construction that the right to enforce the 'original judgment and lien incident thereto was at an end five years from the rendition of the judgment, and that the revived judgment and lien incident thereto could only be enforced for five years from the time of the rendition of the revived judgment. It is not within the province of a court to extend the lien to a case not provided by statute. Judge Lane, .in delivering the opinion of the supreme court of Ohio, in the case of Douglass v. Huston, 6 Ohio, 156, 162, says:
‘"The existence, validity and extent of a judgment lien, are matters purely legal, dependent upon statutory provisions. If it fail at law, it cannot he aided in equity.”
If the lien of a judgment is lost, and it is afterwards revived, a mortgage executed by the judgment debtors during the continuance of the original lien takes precedence over the revived judgment. Tracy v. Tracy, 5 McLean, 456 (24 Fed. Cas. p.114).
Under the statute of California the lien of a judgment
“The rule that confines the lien of the judgment strictly within the two years, is the most simple and certain in theory, and the most beneficial in practice. If we hold that the lien of the judgment may be prolonged beyond the period stated, by the issue and levy of an execution within the time, then we can fix no definite and certain limits to the continuance of the lien. Once we pass the limits of the statute, we open a door to the most vexatious litigation. The titles to real estate would become uncertain, and the useful end intended to be accomplished by our recording system would, in fact, be defeated. A party wishing to purchase the land of the judgment debtor could not do so with safety without the exercise of extraordinary diligence. The provisions of the code give' the judgment creditor ample protection. He can cause an execution to issue at any time; and, under it, the sheriff can advertise and sell within the short period of twenty days. There is,therefore, no reason for allowing him the privilege of delaying the issue of execution until it is too late to sell before the lien expires. It is true that an occasional hard case may arise under the strict rule, but upon the whole, it must be productive of the most good.” Isaac v. Swift, 10 Cal. 71 (70 Am. Dec. 698); Bagley v. Ward, 37 Cal. 121 (99 Am. Dec. 256 and note); Roe v. Swart, 5 Cow. 294; Little v. Harvey, 9 Wend. 157; Lawson v. Jordan, 19 Ark. 297 (70 Am. Dec. 596); McCormick v. Alexander, 2 Ohio, 66.
In Lawson v. Jordan, supra, where the lien of the judgment had expired, it was also held that a junior judgment with a lien would have priority over one with
We now come to the consideration of cases which are identical with the case at bar in principle, and nearly so in fact. In the case of Flagg v. Flagg, 39 Neb. 229 (58 N. W. 109), the facts show certain judgments were recovered against a' debtor, who thereafter executed a mortgage upon premises owned by him, which were subject to the lien of the judgments. At the time of commencement of an action for the foreclosure of a first mortgage in favor of a plaintiff who had purchased the outstanding judgments against the debtor, the same were a valid and subsisting lien upon the real estate in controversy, superior to the lien of the second mortgage. During the pendency of the action, the lien of the judgments, as provided by the statute of Nebraska, expired. The second mortgagee, by leave of court, filed an amended answer in the suit to foreclose the first mortgage, setting up the dormancy of the judgment pending the prosecution of the action. It is provided by the Code of Nebraska that:
“If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out the writ of execution, such judgment shall*714 become dormant and cease to operate as a lien on the estate of the judgment debtor.”
The court says:
“In construing a statute where the meaning is not' clear, the rule is to give it such interpretation as .will comport with what is supposed to have been the purpose or intention of the legislature; in other words, where the intention is manifest, it will control, rather than the language employed by the lawgivers. In the section quoted, however, there is no ambiguity; no words employed which operate to defeat the clear and manifest intention of the enacting power. In fact, there is no room for construction. We.must, therefore, apply the section according to its literal meaning. It is obvious that in case a judgment creditor fails for more than five years after the date of his judgment to sue out an execution, the judgment becomes dormant, and ceases to be a lien upon the real estate of the defendant. We see no escaping the conclusion that, where a judgment becomes dormant, its lien is thereby lost as against a mortgage made by the debtor during the life of the judgment.”
In the case of Tucker v. Shade, 25 Ohio St. 355, it is said:
“Judgment liens are created by the statute, and their extent and duration are such as the statute prescribes.”
The Code of Ohio provides that:
“The lands and .tenements of the debtor within the county where the judgment is entered, shall be bound for the satisfaction thereof, from the first day of the term at which the judgment is rendered. . . . All other lands . . . shall be bound from the time they shall be seized on execution.”
A further provision is made that:
“If execution shall not be sued out within five years from the date of any judgment, ... or if five years shall have intervened between the date of the last execution issued on such judgment and the time of the suing*715 out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.”
The court said:
“It is well settled that the title of a purchaser from the judgment debtor is, on the judgment becoming dormant, discharged from the lien, and that the subsequent revivor of the judgment will not affect such title.”
In the case of Norton v. Beaver, 5 Ohio, 178, it was held that the rights of others, acquired or subsisting under the dormancy of the judgment, are subordinate to the revived lien. That court says:
“In a country where land is one of the most familiar and ordinary subjects of trade, the policy of the law does not favor liens which impose embarrassments on their transfer. The purchaser who acquires title to land at the time when no lien exists, or at a time when, by the creditor’s delay, a once existing lien becomes dormant, appears to us to have an equity preferable to him who has indulged in delay. . . . The lien of the creditor, at this time, is indefinite and contingent. It is not a subsisting interest in the lands, but a power to set up an interest that may never be exercised. He may prefer to enforce payment of his debt against other property, or against the person of the debtor. The purchaser has no means in his hands to guard against future dormant claims. It is, therefore, better that such sleeping creditors should sometimes lose their money, than that titles acquired in good faith, while they slumbered, should be rendered precarious.”
In the case of Miner v. Wallace, 10 Ohio, 404, it was held that a mortgage executed by a judgment debtor after recovery of the judgment takes priority over the judgment after its dormancy and revival. As was well said by the court in the case of Graff v. Kipp, 1 Edw. Ch. 619:
“A plaintiff must take care to sell the lands of the*716 defendant before the expiration of the ten years, in order to avoid the danger of other incumbrances intervening; or if he wishes to continue a lien without a sale, then he must have a fresh judgment docketed before other creditors come in and obtain judgments.” Coombs v. Jordan, 3 Bland Ch. 284 (22 Am. Dec. 236); McCormick v. Wheeler, 36 Ill. 114 (85 Am. Dec. 388).
We conclude that, when a judgment ceases to be effective, the lien likewise ceases, and it cannot be revived so as to affect the rights of intervening purchasers; and that from November 24, 1896, until March 17, 1897, the judgment of respondent ceased to be effective for any purpose, and the lien thereof also ceased, and was not binding upon the property in controversy; that the sale on execution on the revived judgment passed only the interest of the judgment debtors subject to the intervening interest of the appellant which attached to the property under her deed, unless the decree entered in the suit brought by the respondent in 1893 against the appellant and the Schorrs estopped the appellant from setting up that interest.
“The question of the conclusiveness of records most frequently arises on judgments. The doctrine is well established that a cause of action once finally determined, without appeal or some proceeding for the annulment of the judgment between the parties oh the merits by any competent tribunal, cannot afterwards be litigated by a new proceeding either before the same or any other tribunal. But there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment as rendered upon the merits constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them not only
What was the claim upon which the action was waged between the respondent and the appellant and the Schorrs in 1893 ? It was that a judgment recovered against the Schorrs on November 23, 1891, and which had been filed in the office of the auditor of Spokane county, December 14, 1891, should be declared a superior lien upon the property conveyed to the appellant by the Schorrs by the deed filed for record June 20, 1892; that plaintiff in that action, respondent in this, under the execution issued on the judgment of November 23, 1891, might have the right to sell the property described in said deed to satisfy the judgment upon which the execution issued, and that Mrs. Brier’s deed might be “set aside and held for naught as against the judgment of the plaintiff.” What is the claim in this action? Stating it negatively, it is that a judgment recovered by the respondent against the Schorrs on March 17, 1897, on which] an execution was issued on March 25, 1897, and under which the property in
“Issues which are not material to the controversy, although determined,' do not become res judicata."McGee v. Wineholt, 23 Wash. 748 (63 Pac. 571).
It was not only unnecessary to litigate that question, but there was no inquiry as to the question of fraud in that action. The respondent should be bound by its pleadings and proof in this action. It pleaded that the court made certain findings of fact in the suit brought in 1893. It set forth those facts. They were not denied, and it introduced the record to prove them. The recital in the findings is:
“This cause coming on to be tried upon the evidence, the court, having listened to the testimony and the argument of counsel, finds as proven the following.”
It finds all the facts as claimed by plaintiff in its complaint, except on the allegation “that the deed was wholly without consideration, and was made for the purpose of cheating and defrauding the plaintiff,” and on this point the finding is “that upon the 21st day of April, 189£, defendants George F, and Oarrie B. Schorr conveyed the following described real estate [the description is the same real estate as in controversy in this action] to the defendant Mrs. E. FT. Brier, by warranty deed of that date, for the consideration expressed in said deed of $2,250.”
“As conclusions of law from the foregoing the court finds that the plaintiff is entitled to have said real estate sold on execution on said judgment free and clear of said conveyance, and that the said conveyance is subject to the said judgment of plaintiff.”
The decree of the court recites that he has “made and filed his findings of fact and conclusions of law herein, it is therefore ordered, adjudged,” etc. Why is it adjudged? Because certain facts have been found to exist. What is adjudged? That the judgment of thje plaintiff ever since its rendition has been a lien on the property; that the conveyance made by the .defendants to Mrs. E. hT. Brier, by their deed of the 21st of April, 1892, was and is subject to the lien of the judgment of the plaintiff; and that the plaintiff may sell the property on execution upon its judgment, and that the purchaser at such sale shall take all the right, title, and interest therein owned and possessed by the defendants Schorr at the time of the rendition of the judgment, to-wit, November 23, 1891, to the same extent and degree as it might or would have taken the same had said conveyance not been made to Mrs. Brier. There is nothing in this decree that sets aside the deed as being fraudulent or void, hut it simply declares, what the law declared, without the decree, that the purchaser at the execution sale took the interest in the- property that the judgment debtors had at the date the judgment was rendered. It would he doing violence to the findings and the decree if we should construe it as the respondent contends for. There is nothing in the decree indicating that Mrs. Brier was cut off from her right to redeem from a sale on the execution, and, after the court had expressly found that the Schorrs had conveyed the property to her for $2,250, it is not to be presumed
“It is presumed that the doings of a court of record are regular and proper, that its jurisdiction was properly acquired, that its proceedings are legal and valid, and that its decisions are well founded and free from error.”
To construe this decree as respondent asks us to do would violate the presumption that the decisions of courts are free from error; for as the court found the convéyance to Mrs. Brier to he a fact, and to he for $2,250, it could not, under the law, decree that Mrs. Brier should not have the right to redeem. In addition to the record the appellant introduced uncontradicted proof, which we think she had a right to do, that no evidence whatever on the question of fraud was introduced in the suit brought in 1893. This testimony in no way contradicts the record, hut is consistent with it.
In the case of Packet Go. v. Sickles, 5 Wall. 580, Mr. Justice JSTelson uses the following language:
“As we understand the rule in respect to the conclusiveness of the verdict and judgment in a former trial between the same' parties, when the judgment is used in pleading as a technical estop,pel, or is relied on by way of evidence as conclusive, per se, it must appear, by the record of the prior suit, that the particular controversy sought to be concluded was necessarily .tried- and determined — that is, if the record of the former trial shows that the verdict could not have been rendered without deciding that particular matter, it will he considered as. having settled that matter as to all future actions between the parties; and further, in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may he received to prove the fact; but, even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it he not shown that the verdict and judgment*721 necessarily involved its consideration and determination, it will not be concluded.” Turley v. Turley, 85 Tenn. 251 (1 S. W. 891); Burnham v. Webster, 1 Woodb. & M. 172 (4 Fed. Cas. No. 2179); Sawyer v. Woodbury, 7 Gray, 499 (66 Am. Dec. 518); Russell v. Place, 94 U. S. 606.
We conclude that the matters arising in this suit were' not litigated and determined in the action brought by the respondent, in 1893, .against the Schorrs and the appellant and pleaded in this action as a defense. We think the evidence shows that the deed from the Schorrs to appellant was intended as a mortgage, hut in that event Mrs. Brier held title in fee, “subject to the judgment,” and, after the lien of the judgment of the bank expired, was the owner absolutely relieved of its lien. But the question as to whether the instrument is a deed or a mortgage was immaterial, under the issues in the suit brought in 1893, and one which did not concern the plaintiff. If a mortgage, it was subject to the lien of the hank’s judgment; and if a deed, it occupied the same position. There was no occasion in that suit for determining the character of the instrument under which Mrs. Brier claims. The appellant was not a party to the proceedings to revive the judgment, she was not a necessary party to the same, and she was not required to take notice thereof. Anderson v. Bigelow, 16 Wash. 198 (47 Pac. 426); Cullity v. Dorffel, 18 Wash. 122 (50 Pac. 932).
We conclude from the evidence in this case that the court should have found the facts to be as requested by the appellant, and should have entered its decree adjudging and decreeing that the instrument of date April 21, 1892, made, executed, and delivered by George F. Schorr and Carrie B. Schorr to the appellant, recorded in Book 45, at page 223, of the Becords of Deeds on file in the office of the auditor of Spokane county, was intended as secur
The judgment and decree entered in the court below is reversed and set aside, and this cause is remanded, with instructions to enter a decree to conform to this opinion; the appellant to recover her costs on this appeal.
Reavis, C. J., and Fullerton and Anders, JJ., concur.