103 Wash. 298 | Wash. | 1918
— The plaintiff is foreclosing a real estate mortgage. The facts in connection with it are as follows: In 1913, the defendants Birch executed a note and second mortgage to the Traders’ National Bank, of Spokane, in the sum of $72,000, the mortgage being upon the property known as the Tokyo Apartments, in Spokane. These instruments were executed to one Gates, as trustee for the bank, and by him reconveyed to the Spokane & Eastern Trust Company, with which the Traders’ National Bank consolidated subsequently to the original transaction between the Birches and Gates. The Spokane & Eastern Trust Company thereafter assigned the note and mortgage to the State Finance Company, a subsidiary of the Spokane & Eastern Trust Company, and the plaintiff herein. On September 24, 1915, the plaintiff commenced this action. Subsequently to the transaction between the Birches and Gates, but prior to the commencement of the foreclosure action, several transfers of the Tokyo Apartments were made:
(1) October 1, 1913, deed of Birches to defendants Swager. Consideration, $10.
(2) March 8,1915, deed of defendants Swager to defendant Lizzie S. Gerhauser. Consideration, $10.
(3) January 29, 1916, deed of defendant Gerhauser to appellants Moore and wife. Consideration, $1.
The first two of these instruments contain clauses assuming and agreeing to pay the existing indebtedness of $72,000 against the property, and the last instrument provided that the appellants Moore took the property ‘ ‘ subject to valid mortgage now on record. ’ ’ It will be
Four claims of error are made:
I. The first relates to a question of amendment of the pleadings, and in disposing of this assignment it is unnecessary to say more than that, after a thorough consideration of it, we see no merit therein.
II. That the plaintiff has not capacity to sue, not being the real party in interest. The plaintiff in this case is suing under a written assignment, and the defendants were entitled to all of the defenses as against this plaintiff that they would have been entitled to against the Trust Company, and the judgment will bind the Trust Company as well as the plaintiff. We see no valid objection to the action being prosecuted in this way.
III. It is claimed that the note was discharged by operation of law because the Birches, the makers thereof, had become the owners of the note, and were the
IV. The appellants complain.because the court rendered judgment in excess of the sum of $37,500, with interest, the amount for which the note was held as collateral security, and insist that, if a foreclosure is allowed, it should be for only the amount actually owing by the Birches to the Trust Company. It seems to be the law in this state "since the decision in Ault v. Blackman, 8 Wash. 624, 36 Pac. 694, that the purchaser of mortgaged premises who purchases them subject to the mortgage and does not assume and agree to pay the mortgage has the right to question the validity of and consideration for the mortgage. But this rule does not extend to, and in the case referred to it is clearly indicated that it was not expected to extend to, the granting to a purchaser of mortgaged premises who has
“If appellants were now permitted to defeat a recovery of the face of the mortgage, and it were held
In the absence of proof to the contrary, the appellants must be held to have received the benefit of the full amount stated in the mortgage, and are now estopped to question the foreclosure in that amount.
For the reasons stated, the judgment will be affirmed.
Main, O. J., Holcomb, Mount, and Parker, JJ., concur.