19 Wash. 276 | Wash. | 1898
The opinion of the court was delivered by
Action to recover possession of land. Appellant claimed title under a warranty deed executed October 1, 1895. The deed was absolute in form. The complaint alleged that on the first of October, 1895, appellant leased the premises to respondent for a term of one year and that the term had expired and respondent refused to surrender possession. Respondent answered, denying appellant’s title and setting up that the deed, though absolute in form, was in fact a mortgage to secure the payment of a debt. The action was tried with a jury and a verdict was returned in favor of respondent. A motion was made for a new trial and denied, and judgment entered upon the verdict, from which appeal is taken. The principal error assigned is denying appellant’s motion for judgment on the evidence. We have examined the evidence brought up in
The only remaining question is the legal effect of such an instrument. Appellant has cited some early California
“ It is the settled rule in California that if a deed absolute in form was made merely to secure the payment of money to the grantee, it is a mortgage, and does not pass the title. Such a deed gives a mere lien upon the property just as if the parties1 had put their agreement in the form of a mortgage, and consequently does not give the right of possession to the grantee.”
The same views are expressed in Murdock v. Clarke, 90 Cal. 427 (27 Pac. 275). 1 Jones on Mortgages, § 20, cites authorities and comes to the conclusion that
“ Even an absolute deed without any defeasance, if in fact made to secure a debt, so that in equity it is a mortgage, passes no title to the grantee.”
See, also, §§ 669 and 717. The statute of this state, 2 Hill’s Code, § 539 (Bal. Code, § 5516) declares:
“ A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property, without a foreclosure and sale according to law.”
It is an elementary principle that in ejectment the plaintiff must recover on the strength of his own title. The instrument in suit having been found a mortgage, appellant should not recover possession under its terms.
The judgment of the superior court is affirmed.
Scott, C. J., and Anders, Dunbar and Gordon, JJ., concur.