17 Wash. 352 | Wash. | 1897
The opinion of the court was delivered by
The respondent brought suit in the superior court of Pierce county to foreclose a mortgage upon certain real property therein situated, given to secure a note executed by Ralph T. Vining and wife for the sum of $3,500 and interest. In the foreclosure suit the appellant, Truman W. Enos, was made a party defendant under the allegation that he had purchased the mortgaged property subsequent to the execution of the mortgage “ for a good and valuable consideration, a part of which was the assumption of said mortgage, which mortgage debt said defendant Truman W. Enos agreed to pay, and said agreement was incorporated in and made a part of the deed of purchase.” On October 15, 1896, the default of appellant was entered and on the same day a decree of foreclosure and sale was also entered for the sum of $4,321.27, exclusive of costs. On November 16, 1896, the mortgaged premises were sold for the sum of $3,500, the respondent becoming the purchaser. On November 24, 1896, a deficiency judgment was entered against appellant for the sum of $858.96. About December 1, 1896, the appellant, upon notice,' moved the lower court to vacate and set aside the default and judgment, and for leave to answer in the action. This motion was based upon files in the foreclosure suit and his own affidavit. In the affidavit it is stated that the summons and complaint was served upon him on August 7,
“And it was thereupon expressly understood and agreed between said Yining and this affiant that the deed from said Yining to this affiant should be a warranty deed, except that Yining would not warrant against plaintiff’s said mortgage, and one other subsequent mortgage for the sum of $1,000, which sum was a lien upon said premises, but that the said deed should show by its terms that it was made subject to said two mortgages; and it was further expressly -agreed between said Yining and this affiant, that this affiant would not assume, and that the deed of said Yining to this affiant should not contain any words whereby this affiant would appear to assume the payment of said mortgages, or either of them or any part thereof.
“ That thereupon, and about August 29, 1892, said Yining caused to be prepared ready for signature and acknowl■edgment, a -proper warranty deed for said premises, in accordance with the agreement theretofore made between said Yining and this affiant, and said Yining on said last mentioned day submitted said deed to this affiant for his approval, and thereupon thiso affiant approved the same, and agreed to accept it when executed and acknowledged by said Yining and his said wife, and returned it to said Yining for execution and acknowledgment.
“ That thereupon said Yining and his said wife, on said 30th day of August, 1892, executed and acknowledged said deed and delivered said deed to this affiant, and affiant thereafter, and on the 8th day of September, 1892, caused the same to be recorded.
“That after the time when said Yining took said deed for the purpose of executing and acknowledging it after having exhibited it to this affiant for his approval, and before the time when said Yining delivered said deed to this affiant, said Yining, without the knowledge or assent of this affiant, and in violation of the terms of the agreement for the sale of said premises then existing between*355 himself and this affiant, and surreptitiously, and for the purpose of defrauding this affiant, caused the words ‘ which said mortgage the grantee herein assumes and agrees to pay ’ to be written and interlined in said deed, next after the words ‘ and due Oct. 19, 1892,’ and said Yining caused said words to be so skillfully written and interlined in said deed that this affiant, who believed that said Yining would execute and deliver said deed to him in the form proposed to and approved by him, as aforesaid, was deceived and misled, and did not read over the body of said deed when the same was delivered to him, and received and accepted said deed, supposing and believing that it was the deed proposed to him for his approval and in the same form and none other.
“ That this affiant did not discover the fact that said words had been written and interlined in said deed until about the 6th day of April, 1895, when the said Yining and wife had removed from the state of Washington, and become residents of the state of California, where they now reside.
“ That this affiant would not have accepted said deed from said Yining, and would not have become the purchaser of said premises at all, had he known that said deed contained said written in and interlined words, and had he not relied upon said Yining and believed that he would execute and deliver said deed in the form approved by this affiant as hereinbefore stated.”
In connection with the application to vacate and set aside the default and judgment, appellant tendered and exhibited an answer to the complaint of foreclosure embracing substantially the matter set forth in the affidavit. In his affidavit appellant states as a reason why he had not interposed the defense timely, that he had had frequent conversations with one of the attorneys for the respondent, in which conversations he had informed said attorney “ of all the facts and circumstances connected with affiant’s purchase of said mortgaged premises,” and that by reason of such facts he was not bound to pay the mort
In opposition to appellant’s affidavit respondent produced the affidavit of his attorney, in which the attorney stated that “ he never had any conversation with the defendant Enos relative to how the said Enos came to assume and agree to- pay said mortgage debt nor how the assumption clause came to be-made a part of the deed of purchase from the said defendants, Yinings, to the said Enos, nor anything concerning said transaction.” And further, “ that the conversation had by him with the defendant Enos relating to said mortgage debt was in regard to the payment of the interest due thereon and the payment of city and county taxes for the years 1892, 1893, 1894 and 1895,
Respondent’s counsel further urges that upon the merits, the application was. addressed to the sound discretion
“ The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It' is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. In a plain case, this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates.”
In the present case, if the facts alleged in the answer exhibited at the hearing of this applicátion are true, they constitute, in our judgment, a valid, legal defense to any personal claim of the mortgagee against the appellant. It is also true, that unless an opportunity is afforded the appellant to assert it in the foreclosure proceedings, the defense is lost to him forever. If it were a mere matter of counterclaim, where the facts authorized an independent cause of action or entitled the party to some other adequate remedy, we should hesitate before granting an application of this character. But here it is apparent that, if his application is denied, appellant will be forever barred from asserting or claiming any legal benefit of the facts alleged in the answer to exist. And in this connection we note that the right to a personal judgment against appellant is not because of any contract entered into between himself and the mortgagee, nor is it based upon any consideration moving from the mortgagee to the appellant. While this does not afford a legal objection to respondent’s claim for a personal judgment based upon the assumption clause
In the present case it seems clear from the record that the appellant has a meritorious defense to the claim for personal judgment against him. It is also certain that his application to open the default was seasonably made, and that the granting of it will work no grievous hardship to the respondent. ¥e think, therefore, that the duty of the lower court was plain, and that the application should have been granted.
To the end that justice may be done the order and judgment appealed from will be reversed and the cause remanded with direction to the lower court to permit the answer of appellant to be filed.
Scott, O. J., and IIeavis, Anders and Dunbar, JJ., concur.