15 Wash. 142 | Wash. | 1896
Respondent instituted this action in the superior court for Lewis county to reform and foreclose a mortgage of real estate executed by the appellants (husband and wife) to respondent’s assignors, securing an indebtedness aggregating $678 and interest.
The complaint alleges that at the time said mortgage was executed both the defendants and the mortgagees intended that the same should include and describe the north half of lot 1, block 2, of the town of Winlock; “ that in drawing said mortgage the description of the property recited therein and intended to be conveyed was erroneously mentioned as being in Pagett’s addition to the town of Winlock, when in truth and in fact the property intended to be conveyed by said mortgage was situate and being in the original town of Winlock as hereinbefore described.” Also, that the appellants, at the time of the execution of the mortgage, did not own any real estate in Pagett’s Addition to the town of Winlock, and that at the time of the execution and delivery of the mortgage the appellants pointed out and designated to the mortgagees as the property mortgaged and intended to be mortgaged, the property first above described.
A demurrer was interposed to this complaint and overruled by the court. Thereafter appellants answered, denying all of the allegations of the complaint, and alleging affirmatively that they were not at the time of the execution of the mortgage in' question the owners of any right, title or interest in or to the north half of lot 1 in block 2 of the original town of Win-lock. Upon findings of fact and conclusions' duly made and filed, a decree was entered in favor of the respondent, and the defendants have appealed.
2. It is next insisted that equity is powerless to reform the deed or contract of a married woman. While such is undoubtedly the rule in many jurisdictions, we do not think it prevails where, as in this state, the wife is under no legal disability to contract. Stevens v. Holman, 112 Cal. 345 (44 Pac. 670); Hamar v. Medsker, 60 Ind. 413; Witherington v. Mason, 86 Ala. 345 (11 Am. St. Rep. 41, 5 South. 679).
We think that our statute conclusively establishes this point against appellant’s contention. Section 1410, Gen. Stat. (1 Hill’s Code), is as follows: “Contracts may be made by a wife, and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she were unmarried.”
3. The trial court found that the defendants were the “owners and in possession of said north half of lot 1, block 2,” of the original plat, etc., at the time of
But, irrespective of this view of the question, there is still another reason for this conclusion. Appellants seek to place him in the position of a claimant under a title adverse to, and if valid paramount to, their own. Assuming him to be such, he was not a proper party.
“ The only proper parties to a foreclosure suit are the mortgagor, the mortgagee and those” who have acquired any interest from either of them subsequently to the mortgage.” California Safe Deposit & Trust Co. v. Cheney Electric Light Co., 12 Wash. 138 (40 Pac. 732).
The title to the premises can be more appropriately determined in another form of action.
5. The final contention is that there can be no recovery by plaintiff because it appears that prior to the commencement of the action the plaintiff had, in consideration of a deed of conveyance to the property actually described in the mortgage, surrendered and delivered to the appellants possession of the note and mortgage in question; and that neither at the trial nor prior thereto had the respondent offered to re-convey said premises to the appellants, or- surrender conveyance thereof. The theory of respondent’s counsel is that the consideration for which the note and mortgage were surrendered was an actual conveyance of title to the property which is sought to be sub
Upon the whole record we think that substantial justice will be subserved by remanding the cause and permitting the respondent to reconvey to appellants the premises described in their deed to him of date May 16, 1895, or to surrender the deed of conveyance so received by him if the same has not been recorded; and upon His complying herewith within the period of thirty days from the date of the receipt of the remittitur by the lower court and the payment of the costs of both courts, the decree appealed from will be affirmed; otherwise the same will be reversed and the action dismissed.
Hoyt, C. J., and Anders and Dunbar, JJ., concur.