No. 4999 | Wash. | Feb 25, 1905
In 1890 one James M. Adams and Phoebe I). Adams, his wife, executed their promissory notes, and mortgage securing the same, to the Jarvis-Conklin Mortgage Trust Company. Said James M. Adams afterwards died, and Phoebe D. Adams, his widow, became the ad
The mortgaged.land was the community property of the said Phoebe D. Adams and of her said deceased husband. The husband died intestate, and left surviving him, as Ms heirs at law, Harry M. Adams, a son, and Edith D. Adams and Lelah M. Adams, daughters, all children of Mé deceased and of his said wife Phoebe D. Adams. Said children were not made parties to the foreclosure suit. The foreclosure and sale occurred in 1897, and possession of the premises continued, as aforesaid, until 1902, when the said plaintiff, joined by its said assignee, filed a petition in the foreclosure cause, asking that the decree theretofore rendered be set aside, and all proceedings cancelled; also, asking leave to file an amended complaint, joining the said cMldren of the mortgagors as parties defendant.
The petition alleges Mat, at the time of bringing the suit in 1897, the plaintiff was not aware of the existence of said children, and believed that said Phoebe D. Adams was the sole heir of Me deceased, James M. Adams; Mat, when it purchased Me property at sheriff’s sale, the plain
On the written stipulation of counsel for the petitioners, and also for Phoebe D. Adams, the said petition was granted. Such an amended complaint was thereafter filed, alleging substantially the above facts; also, showing the amount of rents collected and taxes and expenses paid during the period of possession held by the said plaintiff and its assignee. The said children of the mortgagors answered the amended complaint, and alleged, that, ever since the death of their father, they have been the owners in fee simple, and entitled to the possession, of an undivided half interest in said mortgaged land; that the plaintiff entered into possession without right, and without consent of said defendants, has collected the rents and profits, and has failed to account therefor. Prayer is made for an accounting as to one-half the rents and profits, and also for a decree that said defendants are the owners of an undivided half of said land, free and clear of any claim of plaintiff, and also declaring that the plaintiff’s cause of action, as set forth in the amended complaint, is barred as to said defendants.
The cause was tried under the amended complaint and answer thereto, and resulted in a decree of foreclosure, as against Phoebe D. Adams and an undivided half of the mortgaged land, but sustaining the contention of the de^ •fendants, the children of the mortgagors, and awarding to them the ownership of the other undivided half of the.
It is the position of respondents that, at the time of the entry of the decree against Phoebe D. Adams, and until the execution sale of her interest, she and respondents were tenants in common; that the decree of foreclosure as to the interest of Mrs. Adams was valid, and that, when appellant acquired her title, it was as much entitled to the possession as were the respondents; that, being a tenant in common with respondents, and occupying the real estate, did not prevent the running of the statute of limitations against the mortgage upon respondents’ interest Such must also have been the view of the trial court. Appellant, upon the other hand, contends that it became a mortgagee in possession, after the sale under the former decree, and that the statute did not run for that reason.
It is w'ell settled that the statute of limitations does not run against the mortgage debt, when the mortgagee is in possession as such. Sped v. Sped, 88 Cal. 437" court="Cal." date_filed="1891-03-25" href="https://app.midpage.ai/document/spect-v-spect-5445175?utm_source=webapp" opinion_id="5445175">88 Cal. 437, 26 Pac. 203, 22 Am. St. 314, 13 L. R. A. 137; Den v. Wright, 2 Halsted 175, 11 Am. Dec. 546. The real question here is, was appellant a mortgagee in possession? Much has been said by the authorities as to what is necessary to constitute one a mortgagee in possession. It has been often held that the consent or agreement of the mortgagor is necessary, before a mortgagee can take and hold possession as such. But it has also been held that such assent or agreement may be implied from conduct or circumstances. Rogers v. Benton, 39 Minn. 39" court="Minn." date_filed="1888-06-26" href="https://app.midpage.ai/document/rogers-v-benton-7965704?utm_source=webapp" opinion_id="7965704">39 Minn. 39, 38 N. W. 765, 12 Am. St. 613. To the same effect is Jellison v. Halloran, 44 Minn. 199" court="Minn." date_filed="1890-07-25" href="https://app.midpage.ai/document/jellison-v-halloran-7966628?utm_source=webapp" opinion_id="7966628">44 Minn. 199, 46 N. W. 332. Later the same court squarely held that, after a default in a mortgage, when the mortgagee, in apparent good faith, makes a void foreclosure, and takes possession under cover of such proceedings, he is a mortgagee in possession, and is entitled to all the rights of such,
“It results, therefore, that while a mortgagee is not permitted to maintain a possessory action to recover the mortgaged premises by reason of the default of the mortgagor, still, if he can make a peaceable entry upon the mortgaged premises after condition broken, he may do so, and may maintain such possession against the mortgagor and every person claiming under him subsequent to the mortgage, subject to be defeated only by the payment of his debt. This view of the law in no manner interferes with the just rights of the mortgagor, and at the same time it does not sacrifice the interest of the mortgagee to the merest technicalities of the law, which have sometimes been permitted to prevail, and the mortgagee turned out of possession stripped both of the property and his mortgage debt as well.”
The rule thus followed in the above cases seems to be in harmony with just principles. It is based upon the principle that, as the mortgagor asks relief in equity, he must first do equity; that is to say, pay the debt. Ho claim is made that the debt was ever paid in the case at bar. Upon what equitable principle can respondents ask relief, until they have paid the debt ? They became owners of the land subject to the mortgage lien,, and inasmuch as the mortgagee, in good faith, took and holds possession under an attempted foreclosure, after condition broken, we think he should be held to be a mortgagee in possession, and entitled to receive equitable treatment from respondents. Such holding is sustained by the authorities cited above, and since they seem eminently reasonable and just, we shall follow them.
The foreclosure should, therefore, proceed under the amended complaint. Inasmuch as the appellant is a mortgagee in possession, such possession having been held since 1897, the statute has not been running against the mortgage meanwhile, and the action is not barred as to respondents’ interest. The decree of foreclosure should cover the whole of the mortgaged premises.
Mount, C. J., Fullerton, and Dunbar, JJ., concur.
Rudkin, Root, and Crow, JJ., took no part.