9 Wash. 383 | Wash. | 1894
The opinion of the court was delivered by
— This is a suit by respondent to foreclose a mortgage upon land in Clallam county, given to secure the note of defendant Mont W. Gray, to defendant B. F. Schwartz, and claimed to have been endorsed and delivered to respondent; and appellants were made parties defendant for the reason that they claimed some interest in the land sought to be foreclosed. Appellants claiming under a mortgage upon the same land, of later date than respondent’s, deny the delivery of the note and mortgage to Schwartz, the record of the mortgage, and the assignment of either note or mortgage to respondent; and allege affirmatively that the note and mortgage plead by respondent were without consideration and were stolen by Schwartz from the maker Gay.
Respondent introduced his note and mortgage and rested. Appellants proved the note to have been diverted by Schwartz from the purpose originally intended, which was that Schwartz was to obtain a loan of $1,200 for Gay, the maker of the note, and give the note and mortgage to the lender. Instead of this he failed to negotiate any loan for Gay, but delivered the note and mortgage as collateral to secure the account of the bank in Port Angeles, of which he was manager, with the Columbia National Bank of
The only notice that appellants had of respondent’s mortgage was by the record. It is claimed by the appellants that the certificate on this mortgage was not competent; that the statute requires a copy of the instrument as recorded certified by the county auditor over his official seal. This question was decided adversely to the appellants’ contention in Garneau v. Port Blakely Mill Co., 8 Wash. 467, the certificate of the auditor in this case being equally as full as the certificate passed upon by the court in the case of Garneau v. Port Blakely Mill Co.
The court found the execution of the negotiable promissory note as alleged in the complaint; the delivery of the same; that the respondent was the owner and holder of the note; that the same was unpaid; that the note was duly assigned for a valuable consideration; that the respondent, plaintiff below, was entitled to judgment, and that his lien was prior to and superior to that of the appellants; and we are of the opinion that all of these findings were justified by the testimony.
This was a case of hardship worked upon the defendant by the conduct of Schwartz; but the endorsement upon the back of the mortgage, relied upon by appellants as giving notice of its fraudulent character, was not made until after the purchase of the note by respondent, and he is in no way responsible for the misfortune of appellants in purchasing worthless security. The note was duly endorsed by the payee before maturity; was delivered to the respondent as collateral to an obligation entered into at the time of the pledge; respondent became the hona fide holder of the note
We think none of the contentions urged by appellants can be sustained, and the judgment is, therefore, affirmed.
Scott, Anders and Stiles, JJ., concur.
Hoyt, J., concurs in the result.
