62 Wash. 564 | Wash. | 1911
On September 1, 1908, appellants owned 160 acres of land in Spokane county, Washington. Desiring to dispose of this property, Mr. Wakefield went to Spokane and there came in contact with a Mr. Michener, a real estate agent, who at the time had nothing to offer that was attractive to Mr. Wakefield. After a day or two he was introduced to a Mr. Schmidt, who had some real property and a small stock of merchandise at Hayford. Mr. Schmidt did not care to trade his land for Wakefield’s property, and Mr. Michener brought respondents E. H. Fish and his wife Grace into the deal. They owned certain town lots in the city of Spokane. It was then agreed that Fish and wife would take Wakefield’s property, that Schmidt would take the lots in Spokane, and Wakefield would take the property and stock of goods at Hay-ford; and deeds were executed accordingly. In the adjustment of the trade, it was estimated that Schmidt had an equity of about $2,250 in his property. Upon further consideration it was agreed, that this equity did not exceed $1,000, and to secure the difference it was agreed that E. H. Fish and his wife would make a deed, conveying the property he had just bought from Wakefield, to Schmidt; this deed to be held in escrow by Mr. Michener subject to a collateral agreement that Fish would pay $500 to Schmidt on January 1, 1909, and $500 on July 1, 1909, and in the event that such sums were not paid, the deed was to be delivered to Schmidt, and he should thenceforth be the owner of the property. Schmidt’s rights in the property and his interest in the contract were assigned to the Wakefields on December 12, 1908, and they are now seeking to enforce their rights thereunder.
The assignment was recorded February 18, 1909. Neither one of the payments was made under this collateral agreement. On October 1,1908, E. H. Fish and wife executed a mortgage on the Wakefield property in favor of Fred Fish, father of E. H. Fish, for $1,500, evidenced by two notes, one of date August 8, 1908, for $900, and the other of date October 1, 1908, for $600. This mortgage was foreclosed in April, and
As a premise to our conclusions of law, the following facts are pertinent: At the time the deed and escrow agreement were executed, it was understood that E. H. Fish and Grace Fish would undertake to get a loan on the property and pay off the $1,000 in the immediate future, and Mr. Michener and Mr. Schmidt undertook to and had made some arrangements for a loan, pending which E. H. Fish told them that it would be unnecessary for them to go further, as he had arranged to get a loan from his father at Colville. The parties had, however, with seeming intent to authorize the placing of a loan on the property to meet the debt due from E. H. Fish and wife to Schmidt, written into the mortgage (the escrow deed) that the premises “are free from all incumbrances except whatever incumbrance there may be by July 1, 1909.” It is asserted by appellants that this clause was fraudulently inserted; that Fred Fish had notice of the escrow agreement in that E. H. Fish was his agent, and that he is thus charged with notice of the rights of Schmidt and his assignees, these appellants; and further that the court erred in refusing to determine the priorities between the liens of the parties, and in refusing to decree a foreclosure of the deed mortgage.
Mr. Michener, who prepared the papers, was the agent of all parties to the transaction, and a careful reading of the evidence convinces us that the testimony is wholly insufficient
“Mr. Fish and I had agreed on the escrow agreement and the deed was to go in escrow and he was to have the privilege of putting a mortgage on the property to get the money to pay up the escrow. That was my understanding of it.”
Mr. Michener says that, after he had written the clause in the deed, he stated that it was unnecessary because Fish would have the right to make the mortgage in any event. But if it should be held otherwise, the testimony offered to vary an instrument so solemn as a deed must be clear and convincing, and the record here is wholly insufficient to overcome the presumption of integrity attending the instrument. This has been so frequently held that a collection of the cases would serve no purpose.
The testimony shows that an attorney asked for permission, and was allowed, to inspect the escrow agreement and deed ' while it was still in Michener’s possession. Whether he was acting as the agent of Fred Fish or of E. H. Fish is not made clear. Upon the theory that such knowledge as he obtained from the escrow agreement would bind Fred Fish, appellants rely on Dormitzer v. German Sav. & Loan Soc., 23 Wash. 132, 62 Pac. 862. It is said:
“If Fred Fish relied upon the statement of his son E. H. Fish with reference to the disputed clause, then E. H. Fish became his agent, and Fred Fish was charged with knowledge of all the rights of the parties possessed by E. H. Fish.”
Without undertaking to analyze the case relied on, it is sufficient to say that this theory cannot be sustained. There is nothing even tending to show that Fred Fish had any knowl
This conclusion disposes of the question of priorities, and that will need no further discussion, unless heed is given to the assertion of appellants that their escrow agreement and deed was in fact a purchase money mortgage, and for that reason would take precedence over the mortgage of Fred Fish. To sustain this contention appellants rely upon Bis-bee v. Carey, 17 Wash. 224, 49 Pac. 220, and Sheet v. Christenson, 17 Wash. 649, 50 Pac. 466. Under our recording acts the question of priority between one holding a purchase money mortgage and another cannot be raised, unless the mortgages concur in time or the priorities are controlled by some contract or equities arising between the several mortgagees. The doctrine, if admitted at all, would not apply as against one who, as we have held, had a right to take the mortgage although he had notice of the escrow agreement, and who had in addition the record title upon which he might rely.
Appellants’ final contention is that, although their mortgage be held to be a second lien, the court erred in refusing a decree of foreclosure, asserting the familiar rule of law that
Affirmed.
Dunbar, C. J., Crow, and Morris, JJ., concur.