123 Wash. 481 | Wash. | 1923
The purpose of this action was to foreclose two mortgages upon one tract of land. The trial resulted in a judgment of foreclosure as to one and the denial of foreclosure as to the other. Prom this judgment, the plaintiff appeals.
The faets are not in dispute, and, so far as is necessary to present the question to he determined, may be summarized as follows: On September 7, 1916, the Safety Investment Company gave its note to the appel
As to the other tract or lots of land and the mortgage thereon, the facts are as follows: On August 31,1918, the Safety Investment Company, being the same company above referred to, mortgaged lots 1 to 6, inclusive, in block 1 of Junction Addition to Tacoma, which mil be referred to as the Junction Addition property, to the Tacoma Savings Bank & Trust Company, the appellant, to secure the payment of a note for $10,000, made at the same, time as the mortgage. This note, by its terms, was due three years after date, or on August 31, 1921.- The mortgage which was given to secure this note contained a provision that it should also secure the $15,000 note above mentioned, as follows: “Also a note for $15,000, dated September 7, 1916, payable in one year with interest at the rate of 7% per annum.” Default in the payment of the interest on the $10,000 note secured by the mortgage on the Junction Addition property did not occur until August
The purpose of the appeal is to review the judgment denying foreclosure upon the Junction Addition property for the amount of the deficiency judgment as the result of the foreclosure of the mortgage upon the Old Town property. The question is whether the two mortgages are to be considered as the same, or regarded as one instrument. If they are to be so considered, the judgment of the trial court was right and should be sustained. If they are not in fact and law the same mortgage, or are not to be regarded as one instrument, then the judgment cannot be sustained.
The general rule is that a decree in a foreclosure action is a bar to a second action for foreclosure upon the same mortgage. In vol. 27 Cyc., p. 1537, the rule is stated as follows:
*484 “A decree in a foreclosure suit, so long as it remains in full force, is a bar to any second action for foreclosure between the same parties on the same mortgage, although a new action may be instituted to bring in and foreclose a defendant who was omitted through a mistake or ignorance of his claims. But this does not prevent the subsequent foreclosure of a separate mortgage given to secure any deficiency that might arise on the foreclosure of the first.”
Another rule is that one who holds several mortgages to secure a single debt may foreclose either of them at his option separately until his debt is satisfied. In McKinney v. Miller, 19 Mich. 142, in an opinion written by the late Judge Cooley, it was said:
“One who holds several mortgages as mortgagee, to secure a single debt, may foreclose either of them at his option separately until his debt is satisfied.”
It is said, however, that this court has taken a different view in Commercial National Bank of Seattle v. Johnson, 16 Wash. 536, 48 Pac. 267, and adopted a rule to the effect that, where two mortgages are given at a different time to secure the same debt and covering different tracts of land, and one of which includes other debts, they are to be regarded as one instrument, and therefore must be foreclosed upon at the same time and in one action. It will be admitted that, if the two mortgages. are to be considered the same or regarded as one instrument, they must be foreclosed upon at the same time and in the same action. In the case last cited, there were two mortgages, one upon land in Kit-titas county and the other upon land in King county. The Kittitas county mortgage was made at a different time and included debts other than those for which the King county mortgage was given. The holder of both mortgages brought suit to foreclose them in one action in King county, The language of the opinion upon which the respondent .here relies is:
*485 “The mortgage upon the lands in Kittitas county secured the same debt that was secured by the King county mortgage, and although it was given at a different time, and included other debts, yet, for the purpose of a foreclosure, we are of the opinion that the two mortgages should be regarded as one instrument, and that the superior court of either county had jurisdiction to foreclose both of them.”
The court was there speaking of a case where the plaintiff, by bringing the action upon the two mortgages, had elected to consider them as one instrument, and the effect of the holding is that they should be so regarded for the purpose of foreclosure; but the holding in that case does not reach the ultimate question here to be determined. In the present case, the question arises after one of the mortgages had been foreclosed, and it is claimed that, by failure to embody the two in one action, there was a waiver of the one not embodied in the first action.
In Conklin v. Stackfleth, 65 Kan. 310, 69 Pac. 194, it was held, in effect, that, where the mortgagee holds two mortgages upon different tracts of land which secure the same debt, he may treat them as the same and foreclose upon the two in one action, but that he is not required to do so and may, if they are not so included, foreclose upon one and then foreclose upon the other to satisfy any deficiency that existed after the first foreclosure. The question whether the two mortgages involved in Commercial National Bank v. Johnson, supra, could have been foreclosed in separate actions was not before the court in that case, as above pointed out, and the language there used should not be construed to mean that in every case where the mortgagee holds two mortgages to secure the same debt, he must, at his peril, foreclose on them in one action or lose the right of foreclosure upon the one not so included.
In Dooly v. Eastman, 28 Wash. 564, 68 Pac. 1039, it was held that, where one holding a mortgage upon two distinct tracts of land foreclosed against one of them only, he thereby waived any right to subsequently foreclose against the other tract; the reason being that, by the first foreclosure, the mortgage was merged in the judgment and a subsequent action could not be maintained upon it. If the appellant’s two mortgages, one upon the Old Town property and the other upon the Junction Addition property, are to be regarded as the same instrument, then the appellant was in this position when it began foreclosure of the mortgage upon the Old Town property. The $15,000 indebtedness secured by that mortgage was long past due. Interest had accumulated and was unpaid, and taxes and assessments were due and delinquent. The $10,000 indebtedness, secured by the mortgage upon the Junction Addition property, was not then due. If the two mortgages are to be considered as one, then the appellant would have been required to wait, before foreclosing upon the Old Town property, with the interest, taxes and assessments accumulating, until after the $10,000 indebted
The judgment will be reversed, and the cause remanded with directions to the trial court to enter a judgment for the appellant.