Cannavina v. Poston

• Decision Date: 09 April 1942
• Docket Number: 28555.
• Citation: 13 Wn.2d 182,124 P.2d 787
• Parties: CANNAVINA et ux. v. POSTON et ux.
• Court: Washington Supreme Court

124 P.2d 787

13 Wn.2d 182

CANNAVINA et ux. v. POSTON et ux.

No. 28555.

Supreme Court of Washington

April 9, 1942

Department 2.

Action by D. Cannavina and wife against Harry Poston and wife to quiet title to realty, in which defendants filed a cross-complaint praying judgment on a note and foreclosure of a mortgage securing it. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded with instructions.

Appeal from Superior Court, Skamania County Howard J. atwell, judge.

Bates &amp Burnett, of Vancouver, for appellants.

Clyde W. Linville, Jr., of Stevenson, for respondents.

JEFFERS Justice.

This action was instituted by D. Cannavina and wife, in the superior court for Skamania county, against Harry Poston and wife, to quiet plaintiffs' title to certain real estate. The complaint, which was sworn to on September 7, 1940, and filed September 11, 1940, alleged in substance as follows That on April 13, 1933, plaintiffs, for the purpose of securing the payment to defendant Harry Poston of the sum of four thousand dollars and interest, made, executed and delivered to defendant their promissory note for four thousand dollars, and to secure such note, a real estate mortgage on land in Skamania county, as described in the complaint, to which land plaintiffs at all times held the fee simple title; that the note became due and payable on April 13, 1934; that the note has not been extended or renewed, and no action has been commenced upon the note or mortgage; that more than six years have elapsed since the accrual of a cause of action based upon the note and mortgage, and any action thereon is now barred by the statute of limitations; that the mortgage was duly recorded on April 17, 1933, in the office of the auditor of Skamania county, and still remains of record and is a cloud upon plaintiffs' title.

It may be stated here that, while the above note was for four thousand dollars, it is admitted that the amount borrowed by plaintiffs was two thousand dollars, and the case was tried and decided as though the note and mortgage had originally been written for two thousand dollars. No bad faith was imputed to any of the parties.

Defendants appeared in the action, and in their answer admitted the execution of the note and mortgage, denied that the statute of limitations had run against the note, and by way of cross-complaint alleged a payment of $150 on the note on August 15, 1935, which was credited on interest, and that defendants are the owners of the note and mortgage. Defendants asked for judgment on their note and the foreclosure of the mortgage given to secure it.

Plaintiffs replied to defendants' corss-complaint, and denied that any payments had been made on the note and mortgage since April 13, 1933. Before trial, defendants were permitted to amend their cross-complaint by a recital to the effect that within six years next preceding the filing of the cross-complaint, there had been a written acknowledgment of the indebtedness by plaintiffs. This new matter was denied by plaintiffs, and upon these issues the case went to trial Before the court. The court made the following findings of fact:

'2. That the plaintiffs are now, and at all times material to this action were, the owners in fee simple of the following described real property, to-wit:

"The South Half of the Southeast Quarter, the South Half of the Northeast Quarter of the Southeast Quarter, and the South Half of the Northwest Quarter of the Northeast Quarter of the Southeast Quarter of Section Ten, Township Four North, Range Seven East W. M., containing 105 acres, more or less;

"And the Northeast Quarter, the North Half of the Southeast Quarter, the North Half of the Southeast Quarter of the Southeast Quarter, the North Half of the South Half of the Southeast Quarter of the Southeast Quarter, and Tax Lot #1 of Section Fifteen, Township Four North, Range Seven East W. M., containing 313 acres, more or less, and all lying and being situated in Skamania County, State of Washington.'

'3. That on the 13th day of April, 1933, the plaintiffs then being indebted to the defendant Harry Poston in the sum of $2000.00, made and delivered to said defendant their promissory note in evidence thereof, secured by a mortgage upon the above described real property. That for reasons not material to this cause of action, and in no way imputing lack of good faith to any of said parties the principal amount of said note was shown as $4000.00; and it was mutually recognized and understood between the parties that the principal amount due on said note was only $2000.00. That said note and mortgage became due and payable on the 13th day of April, 1934.

'4. That said mortgage is now of record in Book 'T' of Mortgages, at page 227, Records of Skamania County, Washington.

'5. That no payments of either principal or interest have been made or tendered upon said note and mortgage by the plaintiffs or either of them; and that said note and mortgage have not been extended or renewed.

'6. That no action has been commenced upon or touching said note and mortgage or either of them, other than this action.

'7. That this cause of action was commenced on the 11th day of September, 1940, and more than six (6) years after the accrual of a cause of action upon said note and mortgage.

'8. That no offer or payment or other equity was made by the plaintiffs unless as contained in Exhibits 3, 4, 5 and 6 herein.'

From the foregoing findings of fact, the court concluded:

'2. That the mortgage made and delivered by the plaintiffs to the defendant Harry Poston and as of record in Book 'T' of Mortgages at page 227, records of Skamania county, Washington, is now barred by the statute of limitations of the state of Washington.

'3. That the plaintiffs are entitled to judgment of this court dismissing the defendants cross-complaint, with prejudice.

'4. That the plaintiffs are entitled to judgment of this court ordering the defendants to cancel and satisfy the above described mortgage record.

'5. That the plaintiffs are entitled to judgment of this court quieting their title to the above described real property against all claims or demands of the defendants or either of them and all persons claiming under them; and adjudging that the defendants nor either of them have any right, title, claim, interest, estate or lien in or upon the above described real property or any part thereof.'

Judgment was entered in accordance with the conclusions of law, and this appeal by defendants followed.

The assignments of error are:

'1. In making and entering a judgment quieting respondents' title as against the lien of appellants' mortgage and in denying to appellants the foreclosure thereof;

'2. In holding that the Cannavina letter dated October 9, 1935, was not a sufficient acknowledgment in writing of an existing indebtedness under the provisions of § 176, Rem.Rev.Stat., so as to renew the running of the statute of limitations;

'3. In holding that defendants' exhibits 3, 4 and 5 were not signed by Cannavina within the meaning of § 176, Rem.Rev.Stat.;

'4. In holding that § 785-1, Rem.Rev.Stat., created a new cause of action;

'5. In refusing to hold that a payment had been made upon appellants' note and mortgage within six years next prior to the bringing of this action.'

The ultimate question to be decided in this case is whether or not the six year statute of limitations has run against the note and mortgage, which admittedly became due and payable on April 13, 1934.

It may be admitted that the facts as found by the trial court in findings Nos. 2, 3, 4 and 6 are amply supported by the evidence, and it is not contended otherwise by any of the parties hereto.

We shall first discuss assignment of error No. 5. Appellants contend that there was a payment by respondents upon the note and mortgage, which tolled the statute of limitations so that when respondents' action was commenced, the note and mortgage were not barred. The trial court found that no payment of either principal or interest had been made or tendered upon the note and mortgage by appellants, or either of them. In its memorandum opinion, the trial court made the following statement in regard to the question of payment and in regard to Mr. Cannavina and Doctor Poston, who testified relative to this matter: 'These gentlemen both seem honorable gentlemen, but analysis of this testimony with reference to the payment of the fifty dollars and the credit of a hundred dollars leaves my mind in a state of equilibrium and I am compelled to the position that defendant [Poston] has not sustained the burden of proof as to the question of fact.'

While we have long recognized the rule in this state that a plea of the statute of limitations is not an unconscionable defense, we have also recognized and so stated that it is 'not such a meritorious defense that either the law or the fact should be strained in aid of it.' Bain v. Wallace, 167 Wash. 583, 10 P.2d 226, 228, and cases therein cited.

Respondents at the present time and for some years last past have lived in Skaminia county, Washington, where they owned considerable land in what is referred to as the 'Wind River' section. Appellant Harry Poston is a doctor, and at all times herein mentioned lived in Pasadena, California. It does not appear on what occasion or just when these parties first met, but it does appear that the doctor and respondents had been friends for a good many years, and that for some years the doctor had spent some time each year at respondents' place. In about 1931, the doctor built, or had built, a cabin on respondents' land, and thereafter, on his trips to Washington, the doctor spent part of his time in the cabin and part at respondents' home. ...