2 Wash. 435 | Wash. | 1891
The opinion of the court was delivered by
—We are of the opinion that, construing the complaint together, and considering the relief prayed for, the complaint is simply for a foreclosure of a mortgage, and that the question of whether or not the vendor’s lien exists in this state is not in issue in this case. There were
It is contended by the appellant that the complaint should have alleged what interest the appellee had in the lands which plaintiff sought to foreclose. The sufficiency of the complaint in this respect, it seems to us, is established by almost universal usage. The form prescribed by Estee is:
“The defendant has or claims some interest in or lien upon the said real property; but the same, whatever it may be, is subject to the lien of the said mortgage.”
This is substantially the same as the tenth allegation in the complaint in this clause, and is all the allegation that is necessary. The defendants’ answer was a general denial, and their claim, if they had any, was not disclosed. It is claimed by the appellant that this was not a disclaimer of interest, and that it put in issue the fact that it was subject to plaintiff’s lien, and cites Elder v. Spinks, 53 Cal. 293, in support of its contention. This case evidently sustains appellant’s theory, but is in conflict with the earlier California authorities, and, we believe, with the well established and generally recognized practice. In Anthony v. Nye, 30 Cal. 402 (89 Am. Dec. 124), it was held that in an action to foreclose a mortgage, the allegation that a party who is made co-defendant with the mortgagor has, or claims to have, some interest or claim upon the mortgaged premises, is sufficient without averring the character of the interest; and Judge Sawyer, who rendered the opinion, says: “ The allegation of her claim and interest is in the form universally adopted and long established. The plaintiff is not supposed to know the nature of every person’s claim. It is enough that a claim is set up. It is the defendant’s business, when thus called upon, to disclose its nature. There is no personal judgment against the wife. If she has no claim, she is in
Another objection raised by the appellant is, that the mortgage was not executed by the trustees of the defendant corporation, but that the president and secretary, by whom the mortgage was executed, had no authority to enter into such a contract, and that it was therefore ultra vires. Even conceding that the contract was ultra vires, and that the appellant has placed himself in a position in this case to legally allege it, under the testimony in this case it will not avail against the plaintiff. The corporation was attempting to execute a bona fide mortgage. It was within the power of the corporation to execute it, and its officers and agents were trying to carry out the will of the corporation. There were but three trustees, and two of them signed the mortgage, but not as trustees. They did not go through the form of an authorization by resolution, but a majority of those who had power to pass the resolution, by a short cut, brought about the result which the resolution would have authorized. The formality of the resolution, it is true, was omitted, but the corporation taking possession of the property by virtue of the mortgage indorsed its execution, and if there were any techni
“But if any one of the parties proceeds in the performance of the contract, expending his money and his labor in the production of values which the corporation appropriates, we can never hold the corporation excused from payment on the plea that the contract was beyond its power.”
Such we believe to be the doctrine of the authorities, generally.
We have examined the other points raised by appellant,, and are unable to find any error. All the facts found by the court are, in our opinion, justified by the testimony, with the exception of the feet that $150 is a reasonable attorney’s fee. The complaint alleged $250 as a reasonable attorney’s fee. The answer denied that any greater sum than $100 is a reasonable attorney’s fee in this case. There being no testimony offered on this point, and as the reasonableness of an attorney’s fee, when denied, must be proven as any other fact, the court should have found that $100 was a reasonable attorney’s fee, and rendered judg