Catlin v. Mills

• Decision Date: 21 July 1926
• Docket Number: 19846.
• Citation: 247 P. 1013,140 Wash. 1
• Parties: CATLIN v. MILLS et al.
• Court: Washington Supreme Court

247 P. 1013

140 Wash. 1

CATLIN v. MILLS et al.

No. 19846.

Supreme Court of Washington

July 21, 1926

Department 2.

Appeal from Superior Court, Kittitas County; Charles H. Paul, Judge.

Action by John Catlin against Nelson G. Mills and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Howard Garrison, of Ellensburg, for appellants.

Jay A Whitfield and Ralph Kauffman, both of Ellensburg, for respondent.

MACKINTOSH J.

On November 7, 1899, James L. Mills and Marie L. Mills, husband and wife, executed a note due November 7, 1904 for the sum of $3,500, payable to Phoebe J. Catlin, with interest at 10 per cent. payable annually. To secure this note a mortgage was made by the husband and wife on their community property, and the debt was a community obligation. On February 22, 1922, Marie L. Mills died, and James L. Mills died on March 24, 1924. The respondent, John Catlin, became the owner and holder of the note and mortgage, and in July 1925, began this suit to recover the balance due on the note and to foreclose the mortgage security. The action was brought against the appellants, who are the children and sole beneficiaries under the wills of Marie L. Mills and James L Mills. In the complaint, in addition to the amount due on the note, there was sought to be recovered payments made by the respondent of delinquent taxes upon the mortgaged land. After judgment in favor of the respondent, this appeal was taken, which presents as the first question to be determined the right of the respondent to recover for taxes paid by him as mortgagee, even though the mortgage obligation might itself have been extinguished by the statute of limitations.

Under the law, a mortgagee who pays taxes to protect mortgaged property is subrogated to the liens of the county and state upon such property, and, those liens not being subject to the operation of the statute of limitations, the mortgagee is entitled to recover tax payments, even though the mortgage may be no longer enforceable. In Childs v. Smith, 51 Wash. 457, 99 P. 304, 130 Am. St. Rep. 1107, and the same case on rehearing in 58 Wash. 148, 107 P. 1053, it was held that a mortgagee whose mortgage may have been outlawed has an equitable lien for taxes and assessments paid by him in good faith under the belief that the mortgage was valid, by virtue of Bal. Code, § 1740.

The principal question in the case concerns the operation of the statute of limitations against the note and mortgage. Upon the note there are indorsed several payments in the years 1900, 1901, 1902, 1903, 1904, 1905, 1906, and 1909; but, as to who made these payments, the death of so many of the parties interested has precluded the introduction of any satisfactory evidence, and these indorsements will be taken merely as self-serving declarations, and not of any weight in tolling the statute. There are indorsements however, on October 24, 1914, in the sum of $25, October 24, 1920, in the sum of $100, and November 27, 1920, in the sum of $500, which are testified to as having been made by James L. Mills. Under Rem. Comp. Stat. § 177, any payment of principal or interest on a note after it has become due starts the statute of limitations from the time of such payment. The payment on October 24, 1914, extended the statute for another six years beyond that date, and the payments in October and November, 1920, would have the same effect. The question is, however, whether these payments, having been made by James L. Mills, had any effect in keeping alive the obligation against the community. The appellants take the position that the payments made by the husband after the statute had once run against the note could only result in continuing the obligation against him individually, and would not have any effect as against the community. The general rule is relied on that, where there are joint debtors on an obligation, a payment after the statute has run by one of the joint debtors binds him only, and starts the statute anew as to him only. ...