96 Wash. 422 | Wash. | 1917
— This is an action at law upon a promissory note. The plaintiff had judgment below against each of the defendants. The defendant Casey has appealed.
The facts are as follows: On March 13, 1911, the defendants Louis Gilbert and Catherine Gilbert, his wife, executed and delivered their promissory note to respondent for $850, with interest at eight per cent. On the same date, a mortgage upon Tract 20, Rainier Beach Garden Tracts, in King county, was given by Gilbert and wife to secure the payment of the note to respondent Frazey. . Thereafter, on June 20, 1913, Gilbert and wife sold the mortgaged land to appellant, John T. Casey, for $3,300. Mr. Casey assumed, as part of the purchase price, the note for $850 due to respondent Frazey, also another note for $1,000, which was secured by a first mortgage, and paid $500 in cash. He gave a third
“That after the execution of said promissory note and, to wit, on the 19th day of January, A. D. 1914, the defendant John T. Casey purchased certain real estate from the other defendants, and as part of the purchase price of said property said Casey assumed and agreed to pay the said promissory note.”
In answer to the complaint, Casey denied that allegation. It is apparent that the action is at law upon the promissory note. Rem. Code, § 3409, provides:
“No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed his own name.”
Under this section of the statute, Mr. Casey’s signature must appear upon the note before he may be held liable thereon. Mr. Casey was not a maker of the note. He did not indorse it, and if this section means what it says, it is difficult
“It is not necessary that the promise of the grantee to assume the payment of an incumbrance as a part of the consideration for which the deed is made, should be in writing. A verbal promise to do so is valid, and equity will enforce it either at the instance of the grantor or the holder of the mortgage.”
To the same effect, see Solicitors’ Loan & Trust Co. v. Robins, 14 Wash. 507, 45 Pac. 39, and Ordway v. Downey, supra, and cases there cited. But those were cases in equity where the mortgagee was foreclosing the mortgage. In such cases, the mortgagee has a right to pursue his remedy against the mortgaged property and against those who have agreed to pay the debt, but no case is cited to us where, in an action at law upon a promissory note, a person not a maker or an indorser may be held liable under a statute like ours.
Upon the face of the statute, we see no escape from the conclusion that, where the holder of a note secured by a mortgage waives the mortgage and brings an action at law upon the noté, he may not enforce payment against a person who hás not signed the note either as maker or indorser.
We have no doubt of the right of the defendants Gilbert and wife, under the facts stated, to proceed against Mr.
The judgment as to appellant, Casey, is therefore reversed.
Ellis, C. J., Parker, Fullerton, and Holcomb, JJ., concur.