16 Wash. 281 | Wash. | 1896
The opinion of the court was delivered by
One F. H. Wilkin borrowed $5,000 of the Merchants National Bank of Tacoma, and Thomas L. Nixon became his surety on the note given for the same. To indemnify Nixon, Wilkin executed to him a mortgage, on the land involved in this case, for the sum of $5,000, on the 21st day of January, 1887. On December 10, 1887, Wilkin executed a mortgage on the same land, together with some other land, to one S. R. Geddis, to secure a note for $1,471. On December 17th of the same year, Wilkin deeded the land to Nixon. On December 28, 1888, Wilkin having defaulted, Geddis instituted a suit to foreclose his mortgage, making Nixon and Wilkin parties defendant. Wilkin defaulted and Nixon answered, setting up the fact that he had a superior mortgage of $5,000, and that no part of it had been paid. During the pend-
And right here we will notice the contention of the respondent that Geddis was bound by the decree in this case, which, it is alleged, established the priority of the Nixon mortgage over his. A perusal of the decree satisfies us that there was no priority established by the court in that case. The language of the decree was that, “the Geddis lien was superior to any right, title or interest which the defendant Nixon had in or to the said described real property or any of it, except as to whatever right or title said defendant Nixon may have under and by virtue of a mortgage” (describing it). The interest which Nixon had, or claimed to have, was not in any way determined or passed upon by the court in that case. If he had any interest, it is fair to construe the decree as establishing it as a paramount interest. But there was no attempt to establish the fact that he had any interest, or, if he had, what that interest was. The property was sold upon the execution issued in this case, and all rights under the execution were assigned to Fred L. Geddis, the appellant here.
The court, as conclusions of law from the statement of facts agreed upon, and the findings of fact made by the court in this case, concludes, among other things, that plaintiff is entitled to a decree foreclosing a mortgage on the west half of section 30, township 17 north, range 20 east of the Willamette meridian, which is the land in dispute, and to a decree ordering the sale of said premises and the application of the proceeds to the payment of the amount above set out, and a judgment against Cora E. Nixon for any deficiency that may arise after applying the proceeds of the sale of said premises to the satisfaction of said amounts, and, further, that the interests of the liens of the defendant Frank H. Wilkin, S. R. Geddis and others are subsequent and inferior to the lien of plaintiff’s mortgage and are subject thereto. From this last conclusion, viz., that the liens are subsequent and inferior to the lien of the respondent, this appeal is taken.
We have examined the cases cited in the briefs of the parties to this action and all the cases that we have been able to find bearing on this case, but from such research we have been unable to find a case that presents exactly the facts that are presented here. A great portion of the respondent’s brief is taken up in discussing the subject of merger and non-merger, and 'it is claimed that when Wilkin deeded the land which he had theretofore mortgaged to Nixon, there was no merger, and that Nixon had a right to be protected against the outstanding mortgage of Geddis. by his
It is claimed, however, by the respondent that, under the authorities — and many authorities are cited to sustain the contention — the payment of this mortgage was a personal right which could have been pleaded by the original parties to the mortgage, or in this case by Wilkin, but could not be pleaded or shown by Geddis. We think the authorities do not sustain this contention, and do not bear upon this kind of a case. Most of the cases cited were cases of duress or legal inability on the part of the contracting parties to contract, as coverture, duress, etc. But these propositions, it seems to us, are not controlling in this case, for, conceding that there was no merger so far as.the interests of Nixon were concerned, it does not follow that the principle of non-merger prevails to the extent of aiding or protecting the respondent’s interests, if, as announced in § 794 of Pomeroy’s Equity Jurisprudence,
“ Whatever may be the circumstances, or between whatever parties, equity will never allow a merger to*287 be prevented and a mortgage or other security to be kept alive, when this result would aid in carrying a fraud or other unconscientious wrong into effect, under the color of legal forms. Equity only interposes to prevent a merger, in order thereby to work substantial justice.”
In this case it is difficult to see upon what principle respondent Hitchcock invokes the doctrine of non-merger, for while it may have been sustained to protect Nixon’s interest against the wrongful encroachment of Geddis’s lien, so long as Nixon had any interest in the mortgage, it appears from the stipulated facts, judicially determined in a case to which Hitchcock was a party and which has not been appealed from, that the note, for which Nixon was responsible and as indemnity for which he received the mortgage from Wilkin, was fully paid, and all but a trifling amount was paid even before Hitchcock’s mortgage was executed. The mortgage then being paid, all questions of merger or non-merger disappeared and cannot be kept alive for the benefit of a subsequent incumbrancer.
Moreover, as effecting the small portion which had not been paid at the time of the execution of the Hitchcock mortgage, we are unable to understand how it can be held that Hitchcock, by reason of his mortgage, became pro tanto a purchaser of Nixon’s interest in the property both legal and equitable, and succeeded to Nixon’s right to have the mortgage stand out against the property; for, at the time Nixon executed this mortgage to Hitchcock, he must have executed it under the power and authority of the deed which he had received of Wilkin, and Hitchcock must have relied upon his title through the deed and not upon any interest Nixon had in the outstanding mort
The judgment will be reversed and the lower court instructed to establish the priorities in accordance with this opinion.
Hoyt, C. J., and Scott, Anders and Gordon, JJ., concur.