110 Wash. 568 | Wash. | 1920
The plaintiff, Hensel, commenced this action in the superior court for Spokane county, seeking foreclosure of a mortgage executed and delivered to Tn'm hy the defendants, Adelina T. Bissell and husband, upon real property owned hy them in that county. Trial upon the merits in that court resulted in a decree of foreclosure as prayed for hy the plaintiff, from which the defendants have appealed to this court.
On January 21, 1913, respondent Hensel loaned appellants Bissell the sum of $2,300, when they executed
“This agreement entered into this 5th day of June, 1915, by and between A. B. Hensel, party of the first part and the payee in that certain note of $2,300 dated Jan. 21, 1913, due in one year, and D. J. Bissell, Jr., party of the second part and one of the makers of the above described note, Witnesseth—
“That in consideration of the sum of $398.55 this day paid by said second party, the receipt of which is hereby acknowledged, the said first party does hereby extend the payment of said note for two years from the 1st day of June, 1915, at the rate of 8% per annum, payable semi-annually, upon the amount of principal and interest this day due upon said note after deducting said payment of $398.55, which balance the parties hereto agree to be the sum of $2,500.
“A. B. Hensel,
“D. J. Bissell, Jr.”
This action was commenced -in September, 1918, which, it will be noticed, was some fifteen months after the new maturity date of the $2,300 principal with the $200 added thereto. Interest was claimed by respondent in the foreclosure action at the rate of eight per cent only, and awarded by the decree accordingly.
It is contended in behalf of appellants that the note was altered to their prejudice after it was executed and
It is contended in appellants ’ behalf that tbe interest exacted was usurious, and that they are therefore entitled to have tbe amount of tbe judgment reduced accordingly. This contention seems to be rested upon tbe theory that the payment of $398.55, made at tbe time of tbe mailing of tbe above agreement, together with tbe $200 which was added to tbe principal of tbe note, amounted to more than twelve per cent on the $2,300 principal, computed for tbe period that interest thereon was then due and unpaid. It may be that tbe total of tbe payment of $398.55 then made and the-$200 added to tbe principal exceeded by a small amount twelve per cent upon tbe original $2,300 principal, computed for tbe period interest was then due and unpaid. But tbe $200 was not then paid, and it was not to be paid save at tbe agreed new maturity date. Treating the $200 as interest agreed to be paid, as it may be conceded it should be so treated for the purpose of determining whether or not tbe maximum legal contract rate of twelve per cent was agreed to be exceeded, it still appears that tbe interest paid to tbe time of making tbe extension of maturity agreement, and tbe interest then agreed to be paid in tbe future, together
Some contention is made in appellant’s behalf rested upon the theory that the agreement for the extension of time of the payment of the note and the adding of the $200 to the principal thereof was void in that it increased the amount of the mortgage lien against the community property without Mrs. Bissell’s consent, she not having signed the agreement. , There might be something to this contention were it not for the fact that the mortgage lien was not, as we view it, increased in amount by the terms of the agreement. Had the agreement not been made, the default in the payment of the principal would have entitled respondent to recover interest upon the loan at the rate of twelve per cent per annum after the original maturity of the loan, instead of eight per cent as was stipulated by the agreement, and resulted in the amount awarded upon' foreclosure being larger than was awarded by this decree. We fail to see wherein Mrs. Bissell’s rights have been prejudiced by the agreement, which, under the circumstances, was a concession on the part of respondent, more than on the part of appellants, and an agreement which we think the husband could lawfully make in the interest of the community.
The decree is affirmed.
Holcomb, C. J., Tolmax, Mitchell, and Maix, JJ., concur.