Board of Church Erection Fund of General Assembly of Presbyterian Church v. First Presbyterian Church of Seattle

• Decision Date: 14 June 1898
• Citation: 19 Wash. 455,53 P. 671
• Court: Washington Supreme Court
• Parties: BOARD OF CHURCH ERECTION FUND OF GENERAL ASSEMBLY OF PRESBYTERIAN CHURCH IN UNITED STATES OF AMERICA v. FIRST PRESBYTERIAN CHURCH OF SEATTLE ET AL.

53 P. 671

19 Wash. 455

BOARD OF CHURCH ERECTION FUND OF GENERAL ASSEMBLY OF PRESBYTERIAN CHURCH IN UNITED STATES OF AMERICA v. FIRST PRESBYTERIAN CHURCH OF SEATTLE ET AL.

Supreme Court of Washington

June 14, 1898

Appeal from superior court, King county; William Hickman Moore Judge.

Action by the Board of Church Erection Fund of the General Assembly of the Presbyterian Church in the United States of America, a corporation, against the First Presbyterian Church of Seattle, a corporation, and Walter Morgan. From a judgment of nonsuit, plaintiff appeals. Reversed.

James M. Gephart (Strudwick & Peters, of counsel) for appellant.

Allen & Allen, for respondents.

DUNBAR J.

This action was brought to foreclose a mortgage on certain lots in the city of Seattle. The complaint alleges that the plaintiff was a corporation organized and existing under the laws of the state of New York; that the defendant the First Presbyterian Church was a corporation organized and existing under the laws of the state of Washington; that the defendant Walter Morgan was doing business as Walter Morgan & Co.; that on May 12, 1893, the First Presbyterian Church of Seattle made and executed, by proper authority of law, its mortgage on the said lots to the plaintiff to secure a loan of $2,160, of a prior date; that the mortgage, in addition to the usual covenants, recited that, in case the house of worship or the mortgaged premises should be alienated or abandoned as a house of worship by the party of the first part, except for the building or purchase of a better house of worship, then and in such case the defendant church should forthwith refund the money, with interest thereon from the time of receiving it; that upon the happening of either of such contingencies said amount, with interest, should immediately become due and payable, with the other ordinary provisions with relation to the right of the mortgagee to sell the property; that the mortgage was duly recorded; that the First Presbyterian Church has failed to comply with the terms, conditions, and agreements of said mortgage; that on the 28th day of May, 1897, the sheriff of King county sold said property under an execution to defendant Walter Morgan & Co., and said sale was confirmed by the court of King county June ___, 1897, and by the said sale Walter Morgan & Co. claim to have an interest or title to the property; that on June 14, 1897, by reason of said sale, the First Presbyterian Church was dispossessed of said premises by a writ of assistance issued out of said court on petition of Walter Morgan & Co., and enforced by the sheriff of King county. The plaintiff asked judgment against the First Presbyterian Church for the sum of $2,160, with interest thereon at the legal rate, for the foreclosure of the mortgage, and for a receiver to care for and conserve the interests of the property. The First Presbyterian Church made default. Defendant Walter Morgan filed a general demurrer to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action, and upon hearing the court sustained the same. The plaintiff standing upon its complaint, and refusing to plead further, a judgment of dismissal was in due time entered. From this judgment an appeal is taken to this court. A motion is made to dismiss this appeal, but we think it is without merit.

It is contended by the respondent that the demurrer was properly sustained for the reasons: (1) That it appeared from the complaint that the cause of action-the consideration of the mortgage-was barred by the statute of limitation; (2) that the mortgage was void because of its covenants being contrary to public policy, and in restraint of alienation; (3) because the time when the debt was supposed to become due was vague uncertain, and indefinite; (4) because there had been no breach of the conditions, and no right to foreclose appeared. There are many answers to the first contention, viz. that the debt, which had been contracted several years before the mortgage was given, was barred by the statute of limitation but it is necessary to mention only two. In the first place, a pleading of the statute of limitations is a privilege which is accorded by the law to the defendant,-in this case the Presbyterian Church,-and it can avail itself of that privilege, or answer upon the merits, or default, just as it pleases. It is not a right which defendant Walter Morgan can receive the benefit of. Second. It was not pleaded in the court below. The demurrer interposed was upon the ground and for the reason that the complaint did not state facts sufficient to constitute a cause of action. This is the sixth cause of demurrer which is specified by the statute. The seventh is that the action has not been commenced within the time limited by law. This objection may be taken by demurrer when it appears upon the face of the complaint; otherwise it may be made by answer. But it is not comprehended within the sixth clause, which provides for a demurrer when the complaint does not state facts sufficient to constitute a cause of action; and the question cannot be raised under the sixth objection any...