17 Wash. 573 | Wash. | 1897
The opinion of the court was delivered by
This action is founded upon the following facts: In December, 1877, one Iverson and wife executed their note to the plaintiff Albert O. Damon in the sum of $950 and interest, due one year from date, and to secure payment thereof also executed to him a mortgage upon the lands in controversy in this action. Thereafter 1ST. P. Deque obtained a sheriff’s deed to said lands in pursuance of a purchase by him at an execution sale under a judgment rendered against Iverson in favor of one Haller, and said Deque and wife thereafter conveyed said lands to Peter Deque. Said sheriff’s deed was executed in March, 1885, and said Deques entered into possession of the premises. Subsequently, in July, 1885, the plaintiff Albert O. Damon commenced an action to foreclose said mortgage against Iverson and wife, but did not make any of the Deques parties thereto. Iverson appeared in said action and admitted the validity of the claim. A decree of foreclosure was rendered and the lands were sold in pursuance thereof to said plaintiff. In June, 1892, the present action was commenced by Damon and wife against U. P. and
A motion is made to dismiss the appeal of the defendants because it 'was not taken within ten days after the plaintiffs had appealed, and because an independent or subsequent appeal cannot he maintained in the same cause. But the defendants were not required to proceed under section 5 of the appeal act (Laws 1893, p. 121), because their interests were not similarly affected to those of the plaintiffs, within the meaning of the statute; and while, after the disposition of an equity cause, the court will not hear a subsequent appeal from the same judgment (Hill v. Sawyer, 14 Wash. 275 (44 Pac. 537), yet in a case like this where the appeals are all perfected and the cause submitted to the court at one time, so the whole matter may he finally disposed of, they may be entertained, as the objec
As the appeal of the defendants goes to the whole case, it will be- first taken up, and several minor questions growing out of their contention will be first considered. The plaintiffs contend that the defendants are not entitled to the benefit of said statute in consequence of not having raised the question by a special demurrer to the complaint in accordance with sections 189 and 190, vol. 2 of the Code; and this position would be well taken if the defect clearly appeared upon the face of the complaint. But in this instance we are of the opinion that it did not so appear, and especially when considering the purported nature of the action; consequently the defendants were entitled to raise the question by the answer.
It is further contended by the plaintiffs that the note was merged in the judgment and that this action must be regarded as upon the judgment, and that the statute of limitations had not run against it. But under all the authorities the Beques not having been made parties to the foreclosure suit, the judgment therein rendered against the Iversons can have no force against them, and could not cut off their right to plead the statute against the claim.
It is also contended by the plaintiffs that the allegations of the answer were insufficient to raise the question of the statute of limitations, but without setting these allegations forth in detail, we are of the opinion that the statute was well pleaded.
Another contention arises upon the facts in the case with reference to the time of a partial payment made upon the note by Iverson. The lower court found that this payment was made at a time before the note matured, while the plaintiffs contend that it was made at a later date. We have examined the proofs in this particular and are satisfied
There are some cases holding the contrary doctrine on the ground that a purchaser of the land who buys while the mortgage is in force is placed in no worse position by a revivor of a mortgage than he was in when he purchased. But the greater number of cases, as well as the weight of authority, is against it. The statute of limitations is a statute of repose, and it would seem as though it should apply in this kind of a case as well as any other, and that a mortgagor, perhaps insolvent, should not have the power, many years after the bar of the statute had become complete, to revive a mortgage undischarged of record and make the same a charge upon the lands as against a subsequent purchaser, when evidence of payment or other defenses might have become lost.
Substantially the same principle has been recognized
We are of the opinion that the contention of the defendants must be sustained. The judgment rendered against them is therefore reversed and the cause remanded with instructions to render a decree setting aside the deed executed to the plaintiff Damon in pursuance of the first action to foreclose, and adjudging the lands free of the mortgage lien.
Anders and Re avis, JJ., concur.
Dunbar, J., dissents.