No. 2184 | Wash. | Jul 8, 1896
The opinion of the court was delivered by
The court in this case found that on the 4th day of October, 1892, the defendant Noyes executed a chattel mortgage for a valuable consideration to the appellant Moody upon the logs which are the subject of this controversy, that the chattel mortgage was duly verified, acknowledged and recorded; that one Cyrus Walker was, and since has been, the owner in fee simple and of record, in trust for the Puget Mill Company, respondents herein, of the land from which the logs were cut, and that upon the said 5th day of June, 1889, while the said real estate was thus owned by the said Cyrus Walker and the Puget Mill Company, said Cyrus Walker, for himself, and as agent of said Puget Mill Company, — he being duly authorized to act in the premises, — executed to one Frank Ledger a license to cut and haul timber from the said above described land, and the said Frank Ledger in consideration thereof, for himself, his heirs and assigns, agreed to pay to the said Cyrus Walker as agent as aforesaid by way of stumpage for such timber the sum of $1.50 per thousand feet, board measure, for all logs so cut and hauled, and in the said license it was expressly agreed that the said Cyrus Walker should have a lien upon all logs and timber cut upon said premises under the said license to secure the sum of $1.50 per thousand feet reserved for stumpage as aforesaid; that the said license was
An action was brought by the appellant to foreclose this chattel mortgage, Noyes defaulted, and the court entered a decree granting judgment in favor of the appellant against Noyes for the amount asked for, but subjecting their lien to the lien of the respondents, viz., the sum of $1.50 per thousand feet, and from this judgment appeal is taken.
Briefs, somewhat elaborate, have been prepared by counsel in this case, but we think the contention of the appellant cannot be sustained. The findings of the court are sustained by the testimony, and in our judgment the findings of facts sustain the law announced by the court.
The respondent, together with Walker as its trustee, having a legal title, could deal with the premises as the legal owner, subject to be called to account only in a matter concerning the cestui que trust, and it could maintain an action in its own name in any matter affecting the trust property. By investing Walker with the legal title, as shown by the pleadings and the testimony, they created him their agent, and
We are also inclined to think from the record that Noyes cut the timber under the authority of the Ledger license, consequently Noyes, Moody and Ledger are estopped from denying Walker’s authority to execute the license. We have examined the authorities cited by appellant under paragraph one of his brief, but do not think that they are in point. So far as the right of lien in the respondents is concerned in this case, this was a lien by contract, and was enforcible in equity although the contract did not amount to a legal mortgage. See 1 Jones on Liens, § 27 et seq.
But even if it be conceded that the respondent had nothing more than a lien interest in the property, he is entitled to have the interest established and. the priorities adjusted: that was the object the appellant had in bringing it into court, and the deciding of this issue and establishing the priorities was in response to appellant’s demand. It is an equitable proceeding; the parties in interest were before the court; the priorities were adjusted under competent testimony; audit seems to us in accordance with the right, as the facts were portrayed by the testimony.
The judgment will, therefore, in all things be affirmed.
Hoyt, C. J., and Anders, Gordon and Scott, JJ., concur.