Ainslie v. Moss

• Decision Date: 23 September 1937
• Docket Number: 26626.
• Citation: 71 P.2d 679,191 Wash. 625
• Parties: AINSLIE v. MOSS et al.
• Court: Washington Supreme Court

71 P.2d 679

191 Wash. 625

AINSLIE v. MOSS et al.

No. 26626.

Supreme Court of Washington

September 23, 1937

Department 2.

Appeal from Superior Court, San Juan County; Edwin Gruber, Judge.

Foreclosure action by George R. Ainslie against Norman B. Moss and others, against the unknown heirs of Mary Moss, deceased alias Pauline Moss, deceased, and against all other persons claiming an interest in the real estate described in the complaint, wherein Ophelia E. Topley filed an answer claiming to be the sole devisee of Mary Moss. Judgment of foreclosure and Ophelia E. Topley appeals.

Affirmed.

John G Barnes, of Seattle, for appellant.

Robert D. Hamlin, of Seattle, for respondent.

HOLCOMB Justice.

Respondent loaned Norman B. Moss and Lodema Moss, his wife, $1,500 in 1928, and the latter executed and delivered to respondent their promissory note on December 6, 1928, by which they agreed to reimburse him three years after date and, to secure the payment of this sum, executed and delivered a mortgage upon 21.25 acres of land in lot 1, section 15, township 37, range 2 west, on Orcas Island, San Juan county. By the express terms of the mortgage, mortgagors were required to pay, Before delinquency, all taxes levied or assessed against this property.

This action was instituted in June, 1935, to recover upon this note and mortgage. It appears that Mary Moss and Pauline Moss are one and the same person. By a deed, dated October 6, 1930, the mortgagors deeded the mortgaged land to Pauline Moss, mother of Norman B. Moss, which deed was duly recorded December 17, 1930.

By reason of tax delinquency on the above-described property, a certificate of tax delinquency was issued to one Leonard E. Salmon, brother-in-law of Norman B. Moss. On June 22, 1932, a tax foreclosure action No. 114, was filed with the county clerk of San Juan county by Salmon, against Pauline Moss relating to the following land: 'Pt. lot 1, Sec. 15, Twp. 37, Rng. 2, 21.25 acres; also tide lands in front of Sec. 10 and 15 Twp. 37, Rng. 2, 15.23 chains.'

The order of default and judgment in this tax case were signed September 6, 1932.

A public sale of this real estate was held on September 17, 1932, and on the same date the treasurer of San Juan county executed a tax deed to Salmon covering the realty in question, but it was not filed until September 19, 1932.

Respondent contends the tax foreclosure action was instituted, promoted, and carried to conclusion by one of the makers of the note and mortgage, Norman B. Moss, for the purpose of destroying the lien of respondent's mortgage.

Respondent also contends that Moss entered into an arrangement with his brother-in-law, Salmon, by which the latter consented to the use of his name as a 'dummy' plaintiff in this tax foreclosure action, No. 114. Pursuant to this arrangement, it is alleged, it was further understood that after the treasurer's deed was issued, Salmon and his wife would deed back the land involved to Mary Moss. This was done by a quitclaim deed dated October 1, 1932, and recorded December 4, 1934; the date of recordation being several months after the institution of an action by respondent to clear title of the tax deed and to establish priority of respondent's mortgage.

Respondent states that since his home is in Seattle and all of these proceedings were at Friday Harbor, he knew nothing about them.

On September 7, 1934, Mary Moss died testate at Calgary, Alberta, Canada, being domiciled there, leaving as one of her heirs a son, Norman B. Moss, and other alleged heirs whose names and residences are unknown.

Respondent brought an action in the superior court for San Juan county as mortgagee, cause No. 1130, on August 14, 1934, to secure a decree establishing a prior lien of the mortgage and to have the court adjudge tax proceedings, cause No. 114, to be of no legal effect. In this action Salmon and wife were made parties defendant. Mary Moss was also named as a party defendant, but the action was dismissed as to her on motion of plaintiff by reason of her death, September 7, 1934. Coincident with the bringing of this action, respondent filed a lis pendens. Thus Salmon's quitclaim deed to Mary Moss was recorded subsequent to this lis pendens and the institution of cause No. 1130. The court entered a decree in cause No. 1130 on June 4, 1935, establishing priority of respondent's mortgage as against all of the defendants herein and held the lien of the same was not affected by tax suit No. 114 and ordered the tax deed issued to Leonard E. Salmon be canceled.

The decree of the trial court concluded: 'This decree shall not be construed to bar any defense on the merits which may be interposed against the promissory note or mortgage herein described on any original action thereon.'

The tax deed being removed from the situation, respondent initiated the present action to foreclose the note and mortgage. The parties to this action are the makers of the note and mortgage, the occupants of the mortgaged premises, unknown owners and unknown heirs of Mary Moss, deceased, and the Cascaddens, husband and wife, claiming to be tenants. Appellant, Ophelia E. Topley, claims to be the sole devisee of Mary Moss and answered the complaint denying respondent's alleged lien was prior to her right, title, and interest in the mortgaged premises.

The parties entered into the following stipulation herein: 'All of the records and files in cause number 1130 in their entirety lately pending in the above-entitled court, wherein judgment was entered on June 4, 1935, may be deemed and treated as a part and portion of the second affirmative defense of the defendants Cascadden and wife as alleged in paragraph I thereof and also of the reply of the plaintiff to said answer to the same effect and purpose as if said files and records were set forth and alleged as a part of said pleadings.'

Appellant set up an affirmative defense showing the sale of the realty pursuant to a real estate tax judgment, occasioned by delinquent general taxes, the deed executed by Salmon and wife to Mary Moss, and that under the terms of the will of Mary Moss the realty in question was bequeathed to Ophelia E. Topley. It was also alleged that on October 2, 1934, the district court of Calgary, Alberta, Canada, entered its order and decree whereby it probated the will of Mary Moss, and ever since that appellant has been and is in possession of this realty by or through her tenants thereon.

To this affirmative defense respondent filed a reply in which he set up two 'further replies.' In the first 'further reply,' respondent cites cause No. 1130 in which the superior court for San Juan county entered a final decree cancelling the tax deed issued to Salmon in so far as the mortgage of respondent is concerned, and decreed priority of the lien of this mortgage upon the real property. In the second 'further reply,' the allegations set forth in the complaint in cause No. 1130 relating to cause No. 114 are presented, and it is alleged the tax deed is void for various and sundry reasons and by reason of the collusion between Norman B. Moss and Salmon.

Appellant moved to strike the reply on the ground that it is sham, frivolous, and irrelevant, and in the alternative that respondent be requested to make the reply more definite and certain, which motions were denied.

Appellant also moved to strike the first and second further replies on the ground that each of them was sham, frivolous, and irrelevant, inconsistent with each other, inconsistent with the complaint and a departure therefrom. The motions were denied.

Appellant demurred to the first and second further replies upon the ground that neither was a sufficient reply to her answer. The demurrers were overruled. It appears that the court permitted to go in evidence practically the entire files and records in causes No. 114 and No. 1130, notwithstanding the objections of appellant.

In his memorandum opinion the trial court stated: 'The facts as found by the court in cause No. 1130 are amply sustained. The plaintiff will be permitted to foreclose his note and mortgage and the decree will be that the defendant Topley has no right, title or interest in the property in question.'

Judgment of foreclosure of respondent's mortgage was entered directing the sale of the mortgaged premises to satisfy the sums found due. Appellant moved for a new trial, the motion was denied, and she now appeals to this...