37 Wash. 348 | Wash. | 1905
The prayer of the complaint in this action is for a decree declaring that certain mortgage foreclosure proceedings are void, quieting plaintiffs’ title to the mortgaged premises, and awarding damages and rents for the retention and occupation of the land by the mortgagee and its successors in interest. The mortgage bore date March 1, 1890, and the principal note matured March 1, 1895. Default having been made in the payment of interest and taxes, the holder of the mortgage — being so authorized by the terms of the instrument — declared the whole debt due,
The said James F. Sloane and Ida H. Sloane had actual knowledge of the foregoing facts, and, after said sale, they yielded possession of the premises to said Townsend, and occupied the land themselves as tenants of Townsend, paying him rent therefor. Thereafter Townsend conveyed the property to Henrietta M. Lucas, and the Sloanes at once recognized her as their landlord, and paid rent to her for the use of the premises. Later Mrs. Lucas desired to occupy the premises herself, and the Sloanes voluntarily moved out, and Mrs. Lucas entered into the occupancy of the land about August 1, 1898. Dearly four years thereafter, in June, 1902, the Sloanes brought this suit against Townsend and wife, Mrs. Lucas and husband, and the Holland bank, a second mortgagee of the premises.
After a trial, the court held that Mrs. Lucas is now mortgagee in possession, and that she is entitled to retain possession until she shall have been fully paid the entire amount of the mortgage debt and interest, together with taxes paid, and interest upon the same, and also the value of the improvements placed by her upon the property, with interest thereon; the plaintiffs, however, to be credited with the rental value of the property for the whole time since possession was taken by the purchaser at the sale. It was
The said foreclosure sale was void within the rule declared by former decisions of this court, for failure to make party defendant the wife who was a member of the community holding the legal title to the land. It will therefore be seen, in the foregoing statement, that Mrs. Lucas is, in good faith, in possession as the successor in interest of a purchaser at a void foreclosure sale. Without discussing the additional facts and circumstances showing that possession was taken with the- consent of appellants, it is sufficient to say that this court has held that possession, taken by virtue of a sale under void foreclosure proceedings, and held by the- purchaser or his assignee, in good faith, constitutes such purchaser or assignee a mortgagee- in possession. See Investment Securities Co. v. Adams, ante, p. 211, 19 Pac. 625. This question is extensively discussed in the hriefs, but it is unnecessary that we shall again discuss it, since the case cited is decisive of the points raised here upon that subject.
It is also urged that it was error to allow twelve per cent interest upon the amount of taxes paid by the mortgagee and its successors in interest. The court found that the mortgage provided for interest at the rate of twelve per cent per annum upon taxes paid, to be computed from the time of their payment. Mo attack is made upon the findings. The evidence is not here; Based upon that finding, the court did not err.
It is next contended that the court erred in charging appellants with legal interest upon the value of improvements placed upon the property by respondents. That equity required the allowance of the value of the improvements, under the circumstances, cannot be doubted. The court found that appellants had knowledge that the improvements were being made by Mrs. Lucas and her hus
“When the mortgagee makes permanent improvements, supposing he has acquired an absolute title by foreclosure, upon a subsequent redemption he is allowed the value of them, especially if the mortgagor has by his actions to any extent favored the mistaken belief.” 2 Jones, Mortgages (6th ed.), § 1128.
Other authorities are cited by respondents upon this question, but we do not understand that appellants seriously contend against the allowance of the value of the improvements, but rather confine their objections to the allowance of interest upon this item. Having in view the circumstances above detailed, the court found the rental value of the property, from the time possession was first taken to the time the improvements were completed, and also found an increased rental value after the completion of the improvements. Respondents were then charged, and the appellants were credited, with the amount of such increased rental value. Inasmuch as appellants were given the benefit of the increased rental, by reason of the improvements, it would seem that equity would require that they should pay interest, upon the actual value advanced by another, and which had made it possible for the property to yield the increased rental for appellants’ benefit. Such was the rule followed in Thomas v. Evans, 105 N. Y. 601, 12 N. E. 571, 59 Am. Rep. 519. We think the rule equitable and just, under the circumstances of this case, and the action of the trial court in this particular is approved.
The next contention is thát the court erred in entering the interlocutory decree allowing but ninety days within
*355 “But the judgment is in form erroneous. It decrees that the mortgage be foreclosed, that the mortgaged premises he sold, and that out of the proceeds of the sale the amount found due from plaintiff to defendant be satisfied. It is in the usual form of a decree of foreclosure; But this was not an action brought by a mortgagee to foreclose a mortgage; it is, in substance, an action brought by a mortgagor to be allowed to redeem. In such an action the plaintiff cannot compel the defendant to foreclose, and in such a case the judgment should be that, upon the payment of the amount due, within a reasonable time to be fixed by the court, the mortgage shall be decreed to be satisfied, and that if, within such time, said money be not paid, the action should be dismissed.”
Under the authorities cited, the court did not err in entering the interlocutory decree, and, inasmuch as there was no compliance with its terms, it was not error to enter the final decree dismissing the action.
The judgment is affirmed.
Mount, C. J., Fullerton, and Dunbar, JJ., concur.
Rudkin, Root, and Crow, JJ., took no part.