22 Wash. 277 | Wash. | 1900
The opinion of the court was delivered hy
Respondent (plaintiff) brought his action against appellant (defendant), alleging the execution of a note by appellant, payable to respondent, dated Eebruary 10, 1894, for the sum of $2,100, principal due one year from date, with interest at 10 per cent, per annum, and alleging the non-payment of said note, except the payment of $356.86. Defendant appeared and answered, admitting the execution of said note and alleging: That at.the time of the execution of said note defendant made, executed, and delivered to plaintiff a conveyance in writing, conveying to plaintiff the following property situate in the city of Seattle, King county, Washington, viz.: Commencing at a point 62-| feet south of the intersection of the line of Commercial street with the south line of Plummer street, in the city of Seattle; running thence east 256 feet; thence south 62-J feet; thence west 256 feet; thence north 62-J feet, to the place of beginning, — which land is and was tide land; that, notwithstanding said conveyance is an absolute deed, the same was intended by and between the plaintiff and defendant to be a mortgage given to secure payment of said note; thereafter, and after platting of the Seattle tide lands, plaintiff, as the owner and
We do not think the answer states a defense to the complaint. It is alleged by the answer that the deed was intended as a mortgage to secure the payment of the note. There is no allegation that there was any agreement on the part of the respondent that he would perfect title to the land from the state, that he would obtain an award of the same, or that he would even apply for it, or that he would do anything in the premises. There is no allegation of agreement to sell the land upon appellant’s request, and in the absence of agreement a mortgagee is under no obligation to proceed otherwise than to foreclose the mortgaged premises in due course of law and apply the proceeds to the debt. Indeed, he may elect to abandon the mortgage and sue upon the note alone. All this over and above
The second affirmative defense is not urged in this court.
Affirmed.
G-obdon, O. J., and Reavis and Fullebton, JJ., concur.