64 Wash. 175 | Wash. | 1911
On June 28, 1907, Willard P. Alward, being then the owner of lot 7, in block 6, of Harrison Heights addition to the city of Seattle, mortgaged the same to one Dorothea Bashaw to secure a loan of $593 then made to him by the mortgagee. Thereafter, and before the payment of the note or cancellation of the mortgage, Alward sold and conveyed the property to Brainard-Jackson & Company, Incorporated, a corporation. On March 18, 1909, BrainardJackson & Company, Incorporated, mortgaged the property to Rasmus Christiansen to secure the payment of a loan of $1,200 made to it by Christiansen. It thereafter caused a house to be built on the land and incurred an indebtedness thereby of $405.06 to the Holmes Lumber Company, to secure which the Holmes Lumber Company filed a materialman’s lien upon the property. Thereafter Brainard-Jackson & Company, Incorporated, sold the property, conveying the same by quitclaim deed to W. C. Mitchell. Mitchell thereafter purchased the mortgage given by Alward to Bashaw, causing the same to be assigned to his daughter, L. Mitchell. Following this, William James, the respondent in this action, purchased the Christiansen mortgage and the mechanics’ lien, taking due and formal assignments of the same. He thereupon tendered to L. Mitchell the principal and interest due
On the trial the court held each of the several liens to be valid liens upon the property, that the lien of L. Mitchell was a first and superior to the liens of the plaintiff, and entered a decree foreclosing the several liens and directing a sale of the property; directing further that the lien of L. Mitchell be first paid out of the proceeds of the sale, or in case the plaintiff paid the amount thereof into court, that plaintiff have a lien on the premises to secure the amount thereof and a sale of the property to satisfy the same, together with the several liens held in his own right. From the decree, the several defendants appealed. They gave no supersedeas bond, and subsequent to the appeal, as is shown by a supplemental record, the plaintiff paid into the registry of the court the amount found due on the prior mortgage, and the same was withdrawn by the mortgagee, L. Mitchell. It has been made to appear also that W. C. Mitchell died subsequent to taking the appeal and that his wife, Elvira C. Mitchell, was, by order of this court, substituted as appellant in his stead.
The appellants attack the sufficiency of the complaint. It
In support of the second objection, the appellants contend that the foreclosure of two or more liens cannot be united in one suit, and argue that each separate lien, whether owned by one individual or more than one, must be the subject of a separate action. Doubtless this would be true were the liens upon different parcels of property, but where the several liens are all on the same parcel, they can properly be foreclosed in one suit. Indeed, in most instances this must necessarily be the case; as for example, where there is a dispute as to the priority of the several liens.
The third objection is based on the fact that Willard P. Alward was not made a party defendant to the suit. But Alward was neither a necessary nor proper party. He was in no way obligated to thé plaintiff, nor could the plaintiff
Certain obj ections are made to the hen, and are suggested in this court apparently for the first time. The defects, conceding them material, are all amendable under the statute, and doubtless would have been corrected had they been pointed out to the trial court. Since this was not done we will treat the lien as sufficient.
It is next contended that the court erred in allowing the plaintiff to be subrogated to the rights of the mortgagee on payment into court of the amount due on the first mortgage. But there was no error in this. This mortgage was a lien on the land superior to any of the liens of the plaintiff. It may have been to the advantage of the parties to the suit to have one final decree which would be under the control of a single party. This evidently was the purpose of the order of the court, and the order was well- within its equity powers.
It is objected also that the court erred in allowing a recovery for the taxes paid by the plaintiff, but this was permissible under the express terms of his mortgage. That instrument provided that he might pay the taxes on the land as they became due and have a lien on the property for such payment. This was a proper subject of contract between the mortgagor and mortgagee, and any subsequent purchaser or incumbrancer of the property took with notice thereof and subject thereto.
Finally, it is urged that the court erred in allowing two attorney’s fees. It appears that the mortgage provided for an attorney’s fee of $60 on foreclosure, and that the court allowed this sum for foreclosing the mortgage and $50 additional for foreclosing the mechanics’ lien. These fees were
There are other assignments of error but we do not feel that they merit special consideration.
The judgment is affirmed.
Dunbar, C. J., Gose, Parker, and Mount, JJ., concur.