43 Wash. 433 | Wash. | 1906
Appellants brought this action in ejectment to recover possession of certain lands described in the complaint, alleging therein that on May 23, 1904, they became seized in fee and possessed thereof and that afterwards, on August 24, 1904, while they were so> seized and possessed, respondents entered without right or title and ousted appellants, and that" they now unlawfully withhold such possession. The respondents denied thesei allegations, and for affirmative defense alleged, that on September 30, 1891, one Charlotte Cannon, then being the owner of the land described in plaintiffs’ complaint, for value, duly executed and delivered a mortgage thereon to the Guarantee Loan & Trust Company, for the. sum of $400, which mortgage was duly filed and recorded, etc.; that afterwards the said Guarantee Loan & Trust Company duly assigned and transferred said mortgage to one Julia I. Gelston; that on April 29, 1895, the said Charlotte Cannon siold and conveyed the premises to' one Emily Taylor, subject to said mortgage; which deed was- filed for record, etc.; that on May 28, 1897, the said Julia I. Gelston commenced an action against the said Charlotte Cannon and Emily Taylor in the superior court of. King county, to foreclose said mortgage and sell said premises; that at the time of filing the complaint in the above entitled action, a lis pendens was duly filed and recorded; that the said Emily Taylor was duly served with summons and a copy of the complaint; that the said Charlotte Cannon was duly and legally served with summons by publication; that on September 16, 1897, the superior court of King county, Washington, then having jurisdiction of the subject-matter and of the ipjarties and of
The plaintiffs’ reply denied the right of the parties making the several deeds to deed the property as against the rights of the plaintiffs; set up the fact that the judgment was rendered on the 16th day of September, 1897, and that the sale was not confirmed until in June, 1904; that more than six years elapsed between the date of said sale and the date of said confirmation, and that no proceedings were ever had to re-vive said judgment, and that no notice of said confirmation was ever served upon the judgment debtors or the plaintiffs herein; alleged that the plaintiffs were, at the time of the filing of said motion for confirmation, the holders of the legal title of record; that said judgment was never satisfied upon the judgment docket; that by reason of the lapse of time the judgment had become dead, null, and of no effect; that by reason thereof the court had lost jurisdiction to entertain a motion for confirmation
The appellants claim title through Emily Taylor, who deeded the oland to U. M. Perry on May 21, 1904, and Perry to the appellants on May 23, 1904; so that it will he
But this is not a judgment lien; nor do we readily see how there eould have been any legal attemp(t to revive this judgment, for the judgment had been merged into an execution, and the execution had been followed by sale, and the payment of the purchase money into, court. So that the pertinent
“Under the provisions of this section the pendency of the attachment was notice to third persons from the time of the publication of the notice, and this notice continued dui’ing the pendency of the action. And the jurisdiction of the court continued until the deed was executed
citing a case from Ohio, viz., Beaumont v. Herrick, 24 Ohio St. 445, where, under statutes similar to ours, it was held that the pendency of an action of foreclosure continues for
“When jurisdiction has attached to- the res, the general rule should be that the suit will pend, so long as it is not dis>missed by the court, sua sponte, or for want of prosecution, or upon the motion of the parties, or be brought to a close by reason of some statutory provision or rule of court having force of law. . . . When the elements of a valid lis pendens exist, and the Court, in the enforcement of its acknowledged jurisdictional power, shall proceed to judgment or decree and its execution, if it were permissible for the same or another court in a collateral proceeding to say that there had not been a valid lis pendens binding upon the res it would amount to the nullification of a judgment or decree where the court had acknowledged jurisdiction. Such a result would be most disastrous and ought never to occur.”
It was also determined in that case that the question of the jurisdiction of the court in an action of this kind, viz., the foreclosure of a mortgage, could not bei raised upon a collateral attack.
But, outside of that question, it seems to us that the issues in this case have been determined in favor of the respondents, by this court, so clearly that outside authorities are of little moment. In discussing the value and effect of confirmation, we said, in Morrow v. Moran, 5 Wash. 692, 32 Pac. 770, that it was not the confirmation that gave the equitable title to the land, but it was the purchase at the execution sale and the payment of the purchase price according to the terms of the sale; that if the proceedings had been regular upi to the' time of and including the sale, the equitable title would pass to the purchaser, and that the confirmation was really only the announcement of the legal determination of these facts. In Diamond v. Turner, 11 Wash. 189, 39 Pac. 379, it was held that a certificate of sale passed the substantial title of de
“The certificate oi purchase and confirmation of sale were alone essential to pass the substantial title of the defendant in the execution to the purchaser at the salei The execution of the deed after the time for redemption had expired was a purely ministerial act on the part of the officer, and could have been -eonrp]elled by the purchaser, or those ¿aiming under him, at any time in a proper proceeding for that purpose. Until the sale had been set aside*, a certificate of purchase would he as fully protected as though' the legal title had been conveyed by deed made in pursuance of the statute.”
Under these authorities the respondents had an equitable interest in the land and, although the confirmation of the sale was necessary to complete the lega-l title;, the equitable title existed and could not he affected by the lapse of time, unless, by the negligence of the* holder of the equitable interest in not obtaining the confirmation for an unreasonable length of time 'outside of the statutory provisions, innocent parties were misled and made to suffer by reason of such negligence. In such cases a large discretion is vested in courts to* determine, under all the circumstances of the case, when such time has expired. But there is nothing in this case, that would bar the respondents from asserting their right on account of negligence.
It is contended, however, by the appellants that, in case title did plass to* the respondents through the sale, the certificate of sale should have been recorded in order to give notice to innocent purchasers. Notice was given by the filing of the lis pendens, and under universal authority, such notice holds good until the: determination of the case. No notice of subsequent proceedings after default is required by the statute. It was decided by this court iu Norris v. Campbell, 21 Wash. 654, 68 Pac. 339, that Bal. Code § 4886 (P. O. § 342), which provides that a defendant after appearance* in an
Hoi error appearing, the judgment is affirmed.
Mount, O. J., Chow, Fullerton, and Root, JJ., eon-cur.
Reported in 86 Pac. 664.