Bank v. Doherty

• Court: Washington Supreme Court
• Writing for the Court: [42 Wash. 323] MOUNT, C.J.
• Citation: Bank v. Doherty, 42 Wash. 317, 84 P. 872 (Wash. 1906)
• Decision Date: 16 March 1906
• Parties: BANK v. DOHERTY et al.

84 P. 872

42 Wash. 317

BANK
v.
DOHERTY et al.

Supreme Court of Washington

March 16, 1906

Appeal from Superior Court, King County; A. W. Frater, Judge.

Action by Benjamin Bank against Earle Doherty and others. From a judgment for plaintiff, defendants appeal. Modified. [84 P. 873]

Elmer E. Todd, for appellant Dutton.

[42 Wash. 318] Melville C. Brown, John W. Roberts, and Maurice D. Leehey, for other appellants.

[42 Wash. 321] James B. Murphy, Harold Preston, and Graves, Palmer, Brown & Murphy, for respondent.

[42 Wash. 323] MOUNT, C.J.

This is an action to foreclose certain real estate mortgages. On January 3, 1900, the respondent Benjamin Bank, a resident of Butte, Mont., loaned to Mary T. Doherty, a resident of the same place, $2,500 on her promissory note, as follows: '$2,500.00. Butte, Montana, January 3, 1900. For value received, three years after date, I promise to pay to B. Bank, or order, the sum of $2,500 at his office in Butte, Montana, with interest at the rate of two per cent. per month, payable monthly. The privilege hereby granted to the maker of this note to pay any amount not exceeding $200 per month thereon. Interest to be reduced according to such payments. Payment to be made on interest day. [Signed] Mary T. Doherty.' At the same time and place, in order to secure the said note, the maker executed two mortgages, a chattel mortgage on certain personal property in Butte, and a real estate mortgage on certain real estate in Seattle, this state. The property included in the chattel mortgage was afterwards sold, and the proceeds of the sale amounted to $96. A short time after the note and mortgages were made, the said Mary T. Doherty died testate in Montana. Her will was thereafter admitted to probate in King county in this state, and letters testamentary with the will annexed issued to appellant [42 Wash. 324] Maurice D. Leehey. Her minor son, the appellant Earle Doherty, a resident of California, was her sole devisee. On March 9, 1901, the respondent brought an action in the superior court of King county to foreclose his real estate mortgage, and at that time filed a lis pendens in the office of the county auditor of King county. Subsequently a judgment of foreclosure was entered, and an appeal was taken therefrom to this court. We reversed the judgment, for the reason that the debt was not then due. Bank v. Doherty, 29 Wash. 233, 69 P. 732, 92 Am. St. Rep. 903. The appellants in that action, Earle Doherty and Mr. Leehey, administrator, were awarded costs therein against Mr. Bank, for the sum of $101.45. The original note and mortgage had been introduced in evidence by the plaintiffs in that case, as exhibits, and were transmitted here with the record, where they were held by the clerk of this court. After a remittitur in that case had gone down, the parties stipulated in writing that the exhibits might be returned to the clerk of the superior court, to be held by him subject to the demand of the party who introduced the same in evidence. After demand had been made upon Mr. Bank to pay the judgment for costs, as above stated, and he had neglected to do so, an execution was issued at the request of the appellants in that case, and the sheriff levied upon the original note and mortgage, and took the same from the possession of the clerk. The note and mortgage were advertised for sale and, on December 1, 1902, were sold at sheriff's sale to C. L. Byron, defendant in this action, for $110.20, being the amount of the judgment and accrued costs. The sale was subsequently confirmed, and the note and mortgage were delivered to Mr. Byron. Neither Mr. Bank nor his attorneys had any actual notice of the seizure and sale of the note and mortgage. The note had been indorsed in blank by the payee some time before it was introduced in [84 P. 874] evidence in the first foreclosure action. After...