17 Wash. 394 | Wash. | 1897
The opinion of the court was delivered by
The plaintiff brought this action to foreclose a mortgage executed by the defendant Angle to one Christina Uommenson, in May, 1893, and by her assigned to the plaintiff. The defendant Pinch had held a prior mortgage executed in Movember, 1890, on the lands covered by the plaintiff’s mortgage. Thereafter, in July, 1894, said defendant, in pursuance of negotiations with Angle, took a quitclaim deed to said lands in payment of his mortgage debt, and entered a satisfaction of the mortgage of record. In his affirmative answer to the complaint Einch asked that the cancellation aforesaid be set aside, and that he be restored to his original rights under said mortgage, and that the same be decreed a prior lien upon the lands. The court having found in his favor, the plaintiff has appealed.
One Mottman was the agent of Christina Uommenson in
Upon the first proposition, as to whether a party in discharging a first mortgage would be entitled to be restored to his rights thereunder as against a second mortgage then in existence where he had failed to make any examination of the records, the authorities are conflicting. But if the finding aforesaid of the court is to be sustained, we think under that finding that the weight of authority clearly sustains the decision of the lower court. Hitchcock v. Nixon, 16 Wash. 281 (47 Pac. 412); 2 Pingree, Mortgages, §§ 1241, 1243; 2 Pomeroy, Equity Jurisprudence (2d ed.), § 856.
There is a conflict between the testimony of Mottman and Finch as to what took place at the time of the cancellation of the mortgage. At that time Mottman was also acting as agent for Angle and he offered the deed to Finch. Finch says that when he discovered that it was a quitclaim deed he objected to it, and wanted to take it to his attorney, and suggested doing so, but, upon Mottman’s repre
Without discussing the testimony in detail, we are fully of the opinion that it is not strong enough in favor of the plaintiff’s contentions to justify a setting aside of the finding made by the lower court, and, under that finding and the testimony of Finch, the judgment re-establishing Finch’s rights under his mortgage as a prior lien was right.
Finch also questions the finding of the court as to there having been a consideration for the transfer of the mortgage from Christina Hommenson to the plaintiff. These two parties and Mottman were related by marriage, and the testimony is not clear or satisfactory as to showing a consideration; hut it is unnecessary to pass upon it, for the finding that Mottman had full knowledge of the situation is sufficient, even though he did not know at the time Finch canceled his mortgage whether the second mortgage had been paid or not. It is evident, if Finch’s testimony is to be believed, that by reason of Mottman’s representations as to the sufficiency of the deed, Finch was induced to forego counseling with his attorney in regard to accepting it, and that he would not have accepted it had he known of-the second mortgage. Had he counseled with his attorney he
Affirmed.
Anders, Gordon, Reavts and Dunbar, JJ., concur.