20 Wash. 659 | Wash. | 1899
The opinion of the court was delivered by
This was an action to foreclose a mortgage given to secure a note for the principal sum of $6,500 and accompanying interest notes. The complaint was the usual complaint in foreclosure, and the answer a general denial. Upon the joining of the issues the action was referred to Hon. W. T. Dovell, a lawyer of Walla Walla, to hear the evidence and find the facts and conclusions of law. Upon the conclusion of the evidence he filed a report, finding the issues in favor of the plaintiff. Exceptions were made to the report, and upon an order of the court the action was re-referred, to allow either party to offer additional evidence. The referee’s report was in favor of the plaintiff. The court afterwards set aside this report, and found for the defendants, and ordered the action dismissed. The contention in this case is that the mortgage sued upon is a forgery, the defendants swearing that they never executed the same. The referee found that the mortgage had been executed, and that the signatures were genuine. The court found that the signatures were not genuine, and that the mortgage was forged. An appeal has been taken, and the case comes here for the judgment of this court upon the testimony reported.
A brief and pertinent history of the transaction out of which this action grows is as follows: One E. R. Goodrich
It is always an unpleasant and difficult duty to decide between witnesses whose testimony is absolutely conflicting. In this case, however, while it would be impossible, as well as unprofitable, to review the testimony at length, there are circumstances surrounding the case which lead us to the conclusion above announced. In the first place, so far as we are able to judge, the signatures of the defendants to the mortgage, which is an exhibit in the case, are genuine; yet, as the members of this court do not assume to be experts in this line, we do not consider this a controlling' circumstance. It is true that the genuineness of these signatures is denied by both of the defendants. On the other hand, the execution and acknowledgment of this mortgage is positively sworn to by the witness Phipps, who was the notary who made the acknowledgment to the mortgage, while the witness Fitzhugh testifies positively to the signing of the instrument by W. L. Estes. It is also true that an attempt was made to impeach the testimony of these two witnesses, and it is a fact that they do not seem to enjoy an enviable reputation for truth and veracity in the neighborhood where this suit was tried; but their testimony bears upon its face in this case the impress of truth. They are disinterested witnesses, so far as this case is concerned. In fact, it would be rather against the interest of Fitzhugh than otherwise to testify as he did that he had not received a mortgage from Estes and wife, if such a mortgage really existed, while the interest of the defendants must be taken into consideration also. Again; the agreement which it is conceded was entered into provides for the giving of this mortgage either to Fitzhugh or to
“Q. You had a mortgage already on your place of $6,500 to Livingstone or some Scotch company?. A. Some loan company. Q. And you owed $800 to the Walla Walla Building and Loan Association ? A. $100. Q. And there is some interest on it? A. Mo interest at all. Q. These mortgages were on the same property covered by the same mortgage you gave Livingstone, were they not ? A. Yes, sir.”
Livingstone, as we understand, is the general agent of the appellant company in this case; so that it would seem
“Examine plaintiff’s Exhibit 6, and state if you ever saw that paper before. A. Yes, I saw it before. Q. Did you ever have it in your possession ? A. Yes, sir. Q. How did you come to have it in your possession? A. It was handed to me by Mr. Estes. Q. Eor what purpose did he state he gave it to you ? A. He gave it to me as collateral to the mortgage of $0,500. Q. What mortgage of $6,500 ? A. The one in favor of the Northern Counties Investment Company. Q. State whether or not that is the mortgage in litigation in this case. A. It is the mortgage in this case. Q. What, if anything, did you agree with him you would do with it ? A. At his request I accepted the policy as collateral to this loan. He refused to give it to me on any other condition. He demanded a receipt, and I gave him a receipt, stating in the receipt the agreement we had at the time of delivery.”
The witness produced a copy of the receipt, which is as follows:
“Walla Walla, Washington, 18 June, 1894. L. W. Estes, Esq., City—Dear Sir: I have received you[r] policy*665 jSTo. 1,968 in the Hamburg-Magdeburg Insurance Company for $3,500, covering your brick building on Main street, to be held by the -Northern Counties Investment Trust as collateral security for their loan of $6,500 on same. (Signed) Tours, truly, R. R. Reidford, Agent of Said Company.”
This would seem to be conclusive that Estes understood that the mortgage which he made was the mortgage as described in the receipt. It seems to us that there is no doubt but that the copy exhibited by the witness Reidford was a true copy of the receipt furnished. Again, the officers of the bank, who transacted all the business for Estes and for the companies of which Eitzhugh was an agent, testified that there were no records of any notes given by Estes to Fitzhugh, and that there would have been a record of such notes if the transactions had been made in the bank as testified to. It is the contention of the defendants that at the time of the execution of the contract and deed the mortgage to Eitzhugh was executed; that the notary who took the acknowledgment to the mortgage was not Leon Phipps, but was one E. B. Westcott; and that it was witnessed by Westcott and one Emily Armstrong, after-wards Mrs. Tillsey. Mrs. Tillsey, in her testimony on the part of the defense, testifies that on the 8th day of February, 1893, she was at the residence of Mr. and Mrs. Estes, and was requested to witness their signatures to what she thinks was a deed and mortgage. . In her testimony, however, on cross-examination, she testified that she only witnessed two papers at that time; that one was an instrument containing but one sheet of paper; that the other one was a larger instrument; and that no other instruments were witnessed by her. The contract and the deed were then presented to her, and she not only testified that the witness’ signatures to those instruments were her signatures, but that the papers themselves looked like the papers which
Gordon, O. J, and Anders and Reavis, JJ., concur.