73 Wash. 569 | Wash. | 1913
Action by John P. Bunger against Benjamin Pruitt, Cora Pruitt, his wife, Walter W. Weygandt, George Brown, and Pannie Brown, his wife, to foreclose a real estate mortgage. The trial court entered a personal judgment for the debt, but made a finding that the mortgage lien had been released, and refused a decree of foreclosure. Plaintiff has appealed.
It is conceded that, many years since, appellant, then a single man, acquired title to one hundred sixty acres of land in Columbia county; that later he married, but on June 11, 1910, was living separate and apart from his wife; that, on the date last- mentioned, for the consideration of $1,000, he sold, and by warranty deed, executed by himself alone, conveyed the land to the respondent Benjamin Pruitt, who then paid him $200 in cash; that, on the same date, Benjamin Pruitt and Cora Pruitt, his wife, executed and delivered to appellant their promissory note for $800 for the remainder of the purchase money, which they secured by their mortgage deed on the land, which mortgage appellant how seeks to foreclose; and that, on July 13, 1910, appellant-and Edna
Respondents, while admitting their liability on the note, in their answer alleged that the quitclaim deed was for the latter purpose. Appellant contended, and in substance asked the trial court to find, that, on the 20th day of June, 1910, he, without the joinder of his wife, sold and conveyed the land to Benjamin Pruitt; that later Benjamin Pruitt requested a deed executed by appellant and his wife, in order that the record might show appellant’s wife had conveyed all her interest, if any she had, in the land; that the quitclaim deed was executed for the sole purpose of correcting the previous conveyance in that respect; and that it was not appellant’s intention that the quitclaim deed should satisfy or discharge the mortgage theretofore executed by respondents. These findings were refused by the trial judge, who, at respondents’ request, in substance found: that, for some time prior to July 18, 1910, the date of the quitclaim deed, appellant and his wife, Edna Bunger, were living separate and apart; that Mrs. Bunger was then threatening an action for divorce; that appellant contemplated removing to the state of Missouri; that he feared his wife, in her proposed action for divorce, would assert or attempt a recovery of some interest in the land or the mortgage deed; that the quitclaim deed was not made for the purpose of correcting the title or any former deed, but was executed with the expressed intention of discharging the mortgage lien; that appellant, with such intention, and without persuasion or fraud on respondents’ part, induced his wife to sign, seal, and acknowledge the quitclaim deed.
Appellant insists that the trial judge erred in refusing his requested findings, and in the findings made. This action
The othér defendants herein, answering jointly with Pruitt and wife,'pleaded a subsequent lien obtained by them from respondents Pruitt and wife, after the execution, delivery and record of’ the quitclaim deed. These allegations were denied by the reply, and there is no evidence in the record to sustain them. This - case must, therefore, be determined upon equities arising in appellant’s favor,' as against the respondents Pruitt and wife alone, no rights -of innocent third parties having intervened.
“A release or satisfaction entered by accident or inadvertence, as where it is made to apply to the wrong mortgage, or by a mistake as to an essential fact, so that it is not in accordance with the real intention of the party, may be set aside and the mortgage reinstated, although not to the prejudice of third persons subsequently dealing with the property in good faith, in reliance on the release or satisfaction, and without notice of thé accident or mistake.'
“When a' mortgage has been canceled or discharged, but without actual satisfaction, it - may be reinstated and enforced as a lien by the agreement of the parties, or, against the will of the mortgagor, on the occurrence of circumstances which give the mortgagee the right to rescind the cancellation or release and require full satisfaction; and this right, if resisted, may be enforced by suit-in equity, although not to the prejudice of the intervening- rights of third persons without notice.” 27 Cyc. 1433.
If it be conceded that the quitclaim deed is a valid and proper form of release, it never took effect as-between the mortgagors and mortgagee. We, hold the evidence insufficient to sustain a finding that the quitclaim deed was given for any valuable consideration passing from respondents to appellant, or that it was intended by appellant as a release of the mortgage lien.. At most, a mistake was made by appellant- which a court of equity, should correct.
Fullerton, Morris, Main, and Ellis, JJ., concur.