82 Wash. 59 | Wash. | 1914
This is an appeal from an order directing the sale of mortgaged property following the entry of a decree of foreclosure. The facts are these; On the 6th day of October, 1910, the appellants executed a note to the respondent for the sum of $4,200, payable in three years, with interest at nine per cent per annum, payable semi-annually, and providing that overdue interest should draw interest at the rate of twelve per cent per annum. The note provided for the payment of a reasonable attorney’s fee in case of suit to collect the note. Contemporaneously with the execution of the note, the appellant May Strand, in order to secure its payment, executed a mortgage upon certain real property. The mortgage, among other things, provided that the mortgagor
There was no appeal from this judgment. The following entries were thereupon made upon the execution docket:
“April 8th, 1912. Amount of judgment $753.48; costs $17.45. $100 or $200 attorneys’ fees, as per terms of decree.
“April 23rd, 1912, received of Neterer & Pemberton the sum of $874.43, tendered as full payment and satisfaction of the within judgment. Samuel E. Leitch, Clerk.
“Received the above amount in full satisfaction of within' judgment the 23rd day of April, 1912. Frank W. Radley, attorney for plaintiff.”
Thereafter, on the 8th day of April, 1913, the respondent filed his petition in the court in which the decree was entered, in which he set forth a copy of the decree and alleged that, on April 6, 1913, there became due to the respondent under the note and mortgage the sum of $194 interest, and that there also became due to him certain sums which he had paid for insuring the mortgaged property. He also alleged that the property could not be sold in parcels. The prayer was for an order fixing a date for a hearing upon the petition, for a judgment against the appellants for the principal sum of $4,200, with accrued interest, insurance, money advanced, and attorney’s fees, and for an order to sell the mortgaged property, and directing the proper application of the proceeds of the sale. Thereupon an order was entered, fixing a day, hour, and place certain for a hearing on the petition, and directing that each of the appellants be served with a copy of the order, together with a copy of the petition, at least ten days before the hearing. The appellants appeared specially, objected to the jurisdiction of the court, and moved
It is first contended that the court was without jurisdiction to proceed without summons and complaint. This contention is without merit. Rem. & Bal. Code, §§ 1126-1128 (P. C. 81 §§ 1577, 1579, 1581) ; Naden v. Christopher, 67 Wash. 578, 122 Pac. 2.
It is next argued that the entries upon the execution docket show that the judgment was paid and satisfied, and authorities upon the question of tender are cited. This view is wholly wanting in merit. It is obvious that the parties intended to pay only the amount of the personal judgment that had been entered against them. This was all that was entered upon the execution docket. Moreover, there was no bona fide dispute as to the amount due, and the decree showed that no part of the principal or interest had been paid. It follows that the claim of a settlement and compromise is without merit, as there was no consideration for a compromise. Sanford v. Royal Ins. Co., 11 Wash. 653, 40 Pac. 609; 38 Cyc. 164d. We have not overlooked the case of Ross-Higgins Co. v. Rook, 65 Wash. 546, 118 Pac. 744, cited by the appellants. A reference to it will show that it has no application.
We also think the learned trial court was in error in making allowance for money expended in the payment of insurance premiums. Our statute, Rem. & Bal. Code, § 1126 (P. C. 81 § 1517) provides, when the complaint is filed for the foreclosure of a mortgage, the court shall direct in the final judgment “at what time and upon what default any subsequent execution shall issue.” Section 1127 (P. C. 81 § 1519) provides that the judgment shall remain and be enforced “upon any subsequent default.” Section 1128 (P. C. 81 § 1581) provides that, if the mortgaged premises cannot be sold in parcels, the court shall order the whole to be sold and the proceeds of the sale to be applied, first, to the payment of the principal due, interest, and costs, and then “to the residue secured by the mortgage and not due.” The judgment was a final one, and it did direct at what time and upon what default any subsequent execution should issue, and it made no provision for premiums paid upon insurance. It is true the mortgage provided for these items. But the note and mortgage merged in the decree. We so construed the statute in the Naden case, where we said that “the law contemplates but one foreclosure proceeding, and that all subsequent proceedings tending to the issuance of an execution or the satisfaction of maturing installments are merely matters of detail or in sequence of the original decree.” We also said: “The court has rendered one decree, and the only purpose of subsequent proceedings is to determine the amounts due as they mature.” These amounts must of course be determined from the decree. Northwestern Mut. Life Ins. Co. v. Allis, 23 Minn. 331; Northwestern Mut. Life
It is claimed that the court erred in certain respects in directing a sale of the property. The record, however, shows that the error, if any, was cured by a refusal to confirm the sale of the property which it is claimed was wrongfully sold.
The judgment will be modified by eliminating $100 of the attorney’s fee and the items of insurance. The appellants will recover their costs.
Crow, C. J., Main, Ellis, and Chadwick, JJ., concur.