38 Wash. 46 | Wash. | 1905
On September 20, 1902, appellant, W. D. Perkins, commenced this action in the superior court of King county, Washington, to recover from the respondent W. E. Bailey the sum of $300, and interest, alleged to be due on a certain promissory note, originally made and delivered by one R. H. Goldie to said W. E. Bailey, for $1,000 and interest, said note being dated February 16, 1892, and by its terms falling due on May 16, 1892. It was alleged in the complaint that said W. E. Bailey had, immediately after the execution and delivery of said note, by written indorsement thereon, guaranteed the payment of said note, and had waived protest and notice of protest for nonpayment thereof. Action on the note was apparently barred by the statute of limitations, but in the complaint appellant alleged: “That since the first day of January, 1897, defendant has been absent from, and has continuously resided without the state of Washington.”
At the time of the commencement, of this action, appellant caused a writ of attachment to be issued, on the ground of the nonresidence of W. E. Bailey, and on September 20, 1892, the sheriff of King county, under said writ, levied upon and attached all right, title, and interest of the respondent W. E. Bailey in and to lots 5 and 8, in block 88, Terry’s Second Addition to the city of Seattle.
The intervener alleged, that on March 5, 1891; W. E. Bailey had executed and delivered to' the Guarantee Loan & Trust Co'., at Seattle, Washington, his two certain promissory notes of that date, each for the sum of $4,500, payable January 1, 1896, with eight per cent interest from date, payable semi-annually; that on said 5th day of March, 1891, for the purpose of securing the payment of these two notes, said W. E. Bailey executed and delivered to' said Guarantee Loan and Trust Company one mortgage on lot 5, and one other mortgage on lot 8, in said block 88, Terry’s Second Addition, which, it will be observed, was the same real estate attached by appellant in this action. The intervener made all the usual allegations necessary in a foreclosure action, and also alleged that W. E. Bailey had been continuously absent from the state of Washington since December, 1893. He then pleads the statute of limitations against appellant’s note; and prays for the usual equitable relief in a foreclosure suit. The respondent W. E. Bailey, by answer, entered his appearance to the petition and cross-complaint of the intervener, admitting-each and every allegation thereof.-
On December 10, 1902, appellant interposed a special and general demurrer to the cross-complaint, the special demurrer being based on the statute of limitations. The demurrer being overruled, appellant answered, but his
“It is stipulated and agreed between the plaintiff, by his attorneys Beed & Eutherford, and the intervener, by his attorneys, Peters & Powell, that the plaintiff may withdraw the answer heretofore filed to the intervener’s petition and substitute and file therefor another, the receipt of which is hereby accepted by intervener, and that the intervener’s reply to the answer of the said plaintiff to the said petition may stand and remain as the reply to plaintiff’s answer to said petition of intervener.”
“(2) That the cause of action set up in intervener’s petition and cross-bill herein arose more than six years prior to the date of the levy made by said sheriff under and by virtue of said writ of attachment herein, to wit: September 20th, 1902, and no payments were ever made upon said notes referred to in intervener’s petition and cross-bill ; that the order granting said Edward Bailey permission to intervene in this action was made November 21, 1902; that intervener’s action to foreclose said mortgages was not commenced within the time limited by law, and that more than six years have elapsed since the said notes and mortgages, referred to in paragraphs one, two-, three, and four in intervener’s petition and cross-bill (matured), before said Edward Bailey commenced this action in intervention herein.”
Trial being had, on May 19, 1904, the court made and filed findings of fact, showing that W. E. Bailey executed the notes and mortgages- in the cross-bill mentioned; that the- same had been assigned to the intervener on October 23, 1891, for a valuable consideration; that no payments had been made thereon; and in the findings the! following are included:
“(6) That on the 20th day of September, 1902, the plaintiff, W. D. Perkins, instituted suit in this court against the defendant William E. Bailey upon a promissory note made by one P. H. Goldie to the defendant William E. Bailey in the principal sum of one thousand dollars, with interest, maturing in May, 1893; which said note plaintiff acquired by purchase from the receiver of the Merchants
“(7) That on the lYth day of January, 1903, a default judgment was rendered and entered in the above suit in favor of the plaintiff W. D. Perkins and against the defendant Wiliam E. Bailey, for the balance unpaid upon said note in the sum of six hundred ninety-seven and 40-100 dollars with interest at 12% per annum from date until paid, and decreeing the plaintiff’s attachment a lien upon the interest of said William E. Bailey in the lotshereinabove named by reason of said attachment, and thereafter the said interest- of the said Bailey in said lands was levied upon by the sheriff of King county, under the aforesaid judgment, at the instance of the plaintiff, and was bought in by the plaintiff for the amount of his judgment; no money being paid therefor, and a sheriff’s deed was issued to the plaintiff for said lands on the 8th day of March, 1904.
“(8) That the intervener, Edward Bailey, filed his intervention herein, upon leave of this court first obtained, on November 21, 1902, and neither he nor his counsel thereafter had any notice whatsoever of the application by the plaintiff for default, or for judgment, or for sale of said property, or for confirmation of sale, or of any of said steps.
“(9) That the said notes and mortgages were executed and delivered by the said William E. Bailey to the Guarantee Loan & Trust Company, and by the latter sold,
Upon the findings, the court made and filed its conclusions of law, and entered judgment- and decree, (1) in favor of the intervener for the amount due on his notes,
We have made quite a lengthy and comprehensive statement in order that the question raised by the appeal, and hereinafter discussed, may be the more readily understood, especially in the light of previous holdings of this court, and the peculiar facts here involved. Attention is called to the fact that, had the respondent W. E. Bailey never absented himself from the state of Washington, the note held by appellant would have been barred at all times after May 16, 1898, or for a period of four years, four months, and four days, at the date of the commencement of this action; and that the notes held by the ituervener and respondent, Edward Bailey, would have been barred at all times after January 1, 1902, or for a period of only ten months and twenty days, at the time he filed his petition and cross-bill herein.
The only question raised by appellant is the statute- of limitations. He contends that, as he had obtained a lien by attachment upon the real estate above described, prior to any attempt by the intervener, respondent Edward Bailey, to foreclose his mortgages, the appellant, as such holder of - a subsequent valid attachment lien, was entitled to plead the statute of limitations against the intervener’s mortgages. Appellant contends that, while the absence of the respondent W. E. Bailey from the state of Washington arrested the running of the statute of limitations
We have carefully examined all of these authorities, find them perfectly harmonious, and are well satisfied with the principles therein enunciated. Most of these cases cite, and are based upon, the doctrine announced in the leading case of Wood v. Goodfellow, 43 Cal. 185, in which the court says:
“If Goodfellow [the mortgagor] still held the equity of redemption, and if the action was against him alone, it is evident his absence from the state would afford a sufficient answer to the plea of the statute of limitations. So* long as he retained the equity of redemption, and no other rights had intervened, by reason of subsequent liens or incumbrances, he had the power, by written stipulation under the statute, to extend the time within which the debt should not be barred, or he might suspend the running of the statute by his absence from the state. So long as his rights only were to be affected, it was within his power tO' suspend the operation of the statute, either by a written stipulation or by absenting himself from the state. But this court has repeatedly decided that as against subsequent incumbrancers, or a subsequent holder of the equity of redemption, the mortgagor has no- power, by stipulation, to prolong the time of payment, or in any manner increase the burdens on the mortgaged premises.”
Under the peculiar facts of this case, we do’ not think appellant is in a position to’ successfully make this contention. It will be observed that, in all the cases above cited, including Wood v. Goodfellow, supra, the subsequent title, interest, or lien held by the third party arose out of claims or demands of later date than the mortgage—or in other words, did not arise out of claims more stale than the mortgage lien itself. In Wood v. Goodfellow, supra, the claim on behalf of which the statute was pleaded grew out of the foreclosure of a mortgage of later date. In Damon v. Leque, supra, the Beques held title subsequently acquired under a judgment, execution, and sale against Iverson, the original mortgagor. In George v. Butler, supra, the respondents Butler and Eriedlieb had become owners of separate portions of the mortgaged property, holding the title’. In Raymond v. Bales, supra, the appellant Bales had, several years after the execution of the mortgage, recorded a judgment against the mortgagor, upon which judgment execution had been Issued and the mortgaged premises sold to Bales. So in Hanna v. Kasson, supra, the respondent Kasson had become owner of the mortgaged land by mesne conveyances, and held the title. And in De Voe v. Rundle, supra, the appellant Bundle had, long after the execution of the mortgage, acquired a valid judgment lien against the real estate on which foreclosure of a mortgage was sought.
In Denny v. Palmer, supra, this court, while recognizing the rule announced in all previous Washington cases on this question, held that the appellant Palmer could not plead the statute of limitations against a previous mortgage. It appeared that Palmer had acquired title to the mortgaged real estate by deed from the moihgagor, which he did not record until several days after the action of foreclosure had been commenced. Speaking through Hadley, J., this court said:
“Appellant’s answer to the amended complaint alleges that the deed by which the mortgaged premises were conveyed by the mortgagor to appellant was executed on the 23d day of December, 1893, but was not filed for record until the 19th day of April, 1900. The original complaint in this cause was filed April 13, 1900. Appellant’s deed was not filed for record until six days after this suit was actually commenced. Despondent therefore had no constructive notice of the existence of appellant’s rights in the mortgaged premises until after he had actually commenced this suit. There is no averment in the answer that respondent or his assignor had, prior to that time, received any actual notice of the fact that such a convey
Appellant for many years had every opportunity j.or proceeding upon his note, and attaching the interest of respondent in the real estate involved herein, but he delayed taking any such action. For what reason? Evidently he was waiting for the arrival of the time when the intervener’s note would be at least, six years past due. During all of this time, he had constructive notice of the mortgage lien, and, also, of the fact that the record title was still in W. E. Bailey. He also had actual notice that the mortgages were not .barred by the statute of limitations, because he knew of the absence of said W. E. Bailey, from the state. Now, when he commenced this action, and when the intervener promptly appeared, before answer day, and
We think the trial court was right in vacating the judgment entered on January 17, 1903, and also in vacating the sale and sheriff’s deed obtained in pursuance thereof. When the intervener had once appeared in this cause, he was entitled to notice of all proceedings thereafter taken. Said judgment, execution sale, and sheriff’s deed having heen set aside and vacated, appellant’s rights must rest entirely upon the lien obtained under his writ of attachment, which attached only the actual interest of W. E. Bailey in and to said real estate. As above suggested, at the time appellant caused his attachment to be .levied, he knew of the absence of W. E. Bailey, and that the mortgage liens were not barred. TIis lien under his writ of attachment was therefore subject to the lien of the mortgage. Our position herein is in .full harmony with the rule announced by this court in the recent case of White v. Krutz, 37 Wash. 34, 79 Pac. 495, wherein Eullerton, J., said:
If such an extension agreement could be made by a mortgagor still holding the title, then certainly the appellant’s lien under his writ of attachment affected only the actual interest of W. E. Bailey in and to the real estate, and, as above suggested, was subject to the intervener’s mortgage liens. While statutes of limitation are favored as statutes of repose, we do not think, under the facts existing here, that the mortgage liens of the intervener should be cut off by appellant’s plea, of the statute of limitations. As has been said by respondent Edward Bailey, in his answer brief:
“It would be a harsh doctrine indeed to say that appellant could rest upon his unsecured claim for nine years and oust respondent, who' sues m less than seven years upon a secured claim, while as to both the statute was dormant by reason of the debtor’s absence. This would make the law a pitfall rather than a relief to the mortgagee.”
We think there, is no error in the record and the judgment of the superior court is affirmed.
