16 Wash. 373 | Wash. | 1897
Lead Opinion
The opinion of the court was delivered by
This appeal is from a decree of the superior court of Kittitas county foreclosing a real estate mortgage executed by appellants’ grantor to plaintiff’s intestate. The first error complained of is that there was no proof of non-payment of the mortgage debt and that the court should have granted a motion for non-suit. The original mortgage was not produced, but a certified copy thereof was admitted, and under § 1685, Code Proc. (2 Hill’s Code), such certified copy is entitled to the same weight, and is produced with the same effect, as the original. In addition thereto, we think that the testimony of the witness Fulton was sufficient prima facie to establish the non-payment, when, as here, there was no plea of payment set up in the answer. The court did not err, therefore, in denying the motion for non-suit.
It is next insisted that the court wrongfully sustained an objection to the introduction of evidence under defendants’ first affirmative defense. The defense attempted was that the mortgage in suit was in fact a deed and that the parties thereto intended
Upon the record we perceive no sufficient reason for reversing the decree. Affirmed.
Scott, C. J., and Anders, J., concur.
Concurrence in Part
I concur in the result, but dissent from the proposition that it was not competent for any one but the state to show, that the mortgagee was incapable of taking title to real estate.
Reavis, J.—I join in the views of Judge Dunbar.