25 Wash. 67 | Wash. | 1901
The opinion of the court was delivered by
On September 8, 1891, the defendant, Samuel C. Woodruff, who was then an unmarried man, made and delivered to the defendant George G. Mills, his promissory note for $4,000, payable on or before two years after date, with interest. At the same time, and as security for the payment of the note, Woodruff executed and delivered to Mills a mortgage upon certain real property situated in Thurston county. On the 14th day of the same month the mortgage was duly recorded in the audit- or’s office. Within ninety days after the execution of the note, — the exact date not being shown, — Mills, for value, indorsed the note to the defendant Pauline Leberman, who on the 6th day of February, 1893, indorsed it to the co-
The appellant moved in the court below to make the complaint more definite and certain, which motion the
The principal question is whether the satisfaction of a mortgage upon the record by a mortgagee, after he had assigned it, operates to cancel the mortgage as against a subsequent incumbrancer for value and in good faith. It is the rule in this state that a mortgage conveys no title to the mortgaged premises; it is a mere security, and is satisfied and extinguished by the performance of the condition the performance of which it is given to secure. Hitchcock v. Nixon, 16. Wash. 281 (47 Pac. 412) Dane v. Daniel, 23 Wash. 379 (63 Pac. 268). It is also a familiar rule, at least in those jurisdictions where a mortgage is a lien merely, that, where a debt is secured by a mortgage, the debt is the principal, and the mortgage the incident, and that an assignment of the debt is an assignment of the mortgage. From these principles it is clear that Mills, when he indorsed the note sued upon to Mrs. Leberman, parted not only with all his interest in the note, but with his interest in the mortgage, also, and stood thereafter with reference thereto as a stranger, and' could no more
The inquiry is, then, did the recording acts, at the time of the assignment of this note and the time of the purported cancellation of the mortgage by Mills, require that an assignment of a mortgage should he recorded? In Howard v. Shaw, 10 Wash. 151 (38 Pac. 746), we held that they did not. The question was squarely presented in that case, and the ruling was made upon facts somewhat similar to the case at bar. The appellant questions the correctness of that decision, and asks that it he overruled; hut a reexamination has convinced us that the case correctly interprets the statutes, and, were it an original question, we would hold the same way. As the reasons
It is next argued that the rule is not applicable to the respondents in this case, because, it is said, they are not tona fide assignees of the note. It is not disputed that the respondents purchased for value, and without actual notice that the mortgage appeared on the record to be canceled and satisfied in full; but it is said that, because they purchased after maturity, they must be held to have taken with notice of the satisfaction, and cannot now assert their want of actual knowledge. This is not the rule. It is not pretended that Mrs. Leberman was estopped, or would be had she attempted to foreclose the mortgage. Such rights as she had passed to the respondents by the several assignments.
The trial court found:
“That on the 26th day of November, 1897, The Provident Life and Trust Company, under the terms and authority given to it by its said mortgage for $8,000, paid to the treasurer of Thurston county, Washington, the taxes duly levied and assessed against said mortgaged premises, and which were a lien thereon, for the years 1893, 1894, 1895 and 1896, amounting to the sum of $1,804.86; that said sum has not been repaid to the said company, but is now due and owing to it, with interest thereon from November 26, 1897, at the rate of twelve per cent, per annum; that said payment of said taxes was made by said company without any knowledge or information of the rights, interests or lien alleged and claimed by the plaintiffs herein in, to, or upon said mortgaged premises, but believing that the said mortgage of said company for $8,000 thereon was the first lien upon said premises.”
It refused, however, to adjudge that the amount so paid was a lien on the mortgaged premises, superior to the mortgage of the respondents. In this we think the court erred. These taxes were a paramount lien upon the prem
The cause will therefore he remanded, with instructions to the lower court to so far modify the judgment appealed from as to allow the appellant a superior lien upon the premises for the amount of taxes paid by it, with legal interest from the time of such.payment; also adjudging to the appellant any surplus that may remain after the satisfaction of the respondents’ mortgage. The appellant will he allowed its costs on this appeal.
Reavis, O. T., and Andees and Dunbab, JJ., concur.