The opinion of the court was delivered by
— Rеspondents bring this suit to reform a mortgage that it may cover, among others, lots 11, 12 and 13, in block 1, E. C. Ferguson’s addition to Snohom-ish, the description of the block being omitted from the instrument, respondents contend, by the mutual mistake of its parties; and to foreclose the same upon one of these, viz., upon lot 11.
It is contended, and is, we think, shown by the testimony, that on the 17th day of February, 1890, Aaron Parker and Lavina L. Parker, husband and wife,- executed their promissory note to the respondents for §912.90 with interest. It came due in six months after its date. At the time of making this note, and with the intention of seсuring the payment of it, the Parkers executed to the respondents their mortgage upon certain real property in Snohomish county, and in the execution of this mortgage the mistake above mentioned was made. Aftеrwards, on July 26, 1890, Aaron Parker died,-leaving a will by which he devised to his wife, Lavina Parker, all his estate, except a small legacy to each of the children, and made her sole executrix. Shortly after Lavina Parker executed a bond
Even disregarding testimony of the witnesses for the defense, and considering only the testimony of Ault & Munns and of Packard himself, we are fully convinced that Ault & Munns were authorized by Packard to аct as his agents for this purpose. It is true they do not say so in so many words, but the legal conclusion flows from the aсts, words and circumstances which they recite. Mr. Munns testifies that Packard left the matter in their hands to see that it was all straight. If this is true Ault & Munns certainly had power to act for him, and it matters not that they did not see fit to charge him anything for their services. The testimony of Packard is still more conclusive that he authorized them to act for him, and told them that whаtever they did in the matter would be all right. The subsequent action of the attorneys also tends to sustain the theory that thе agreement had been fully executed and that nothing else remained for the defendants to do; for without some special agreement to that effect, which does not appear to have been made, it wоuld not have been the duty of the defendants to record the mortgage which they had executed. Their duty ceased with its delivery. But in this case Munns took the mortgage to the auditor’s office for record, evidently taking it for the benefit of, and as the agent of, the beneficiary, Packard, but that it was not recorded by reason of an objection raised by the auditor that some back taxes had not been paid. These taxes would have been a liеn against the land equally under the first mortgage under which Packard was claiming, and he did not get rid of that lien by refusing a seсond mortgage and relying on his first one. So far as his re
The judgment will be reversed, and the cause remanded with instructions to declare the appellant’s mortgage on the lot the first mortgage. The appellant will recover costs both in this court and in the court below.
Hoyt, Stiles and Anders, JJ., concur.