Childs v. Smith

• Decision Date: 11 January 1909
• Citation: 51 Wash. 457,99 P. 304
• Court: Washington Supreme Court
• Parties: CHILDS v. SMITH et al.

99 P. 304

51 Wash. 457

CHILDS v. SMITH et al.

Supreme Court of Washington

January 11, 1909

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by Will A. Childs against Minnie Good Smith and another. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions.

John L. Wiley, for appellant.

Merrill Oswald & Merrill, for respondents.

CROW J.

This action was commenced on April 16, 1907, by Will A. Childs against Minnie Good Smith and J. Carter Smith, her husband to foreclose a mortgage on lot 12, block 1, of Chandler's addition to the city of Spokane. The plaintiff alleged that on June 27, 1890, the defendants executed and delivered to the Northwestern Guaranty Loan Company, a corporation, their note for $350, payable December 27, 1890, secured by their mortgage on the real estate above mentioned, the same being the mortgage sought to be foreclosed in this action; that on December 8, 1892, they executed and delivered to the Northwestern Guaranty Loan Company a renewal note for the same debt, payable June 27, 1893; that no payments of either principal or interest have been made thereon; that by measne conveyances the plaintiff, on October 7, 1893, became the owner and holder of the renewal note and mortgage; that the defendants neglected to pay taxes and special assessments which had become valid liens on the real estate; that plaintiff paid such general taxes for all years from 1893 to 1903, inclusive, except for the years 1898 and 1899; that on January 14, 1904, he also paid $155.03 to the city of Spokane on delinquent street assessments, and that for such taxes and assessments he holds an equitable lien. The defendants alleged that the cause of action in the complaint stated did not accrue within six years prior to the commencement of this suit, and that it is barred by the statute of limitations. The trial court held with the defendants on this issue, and entered a final judgment in their favor, dismissing the action. The plaintiff has appealed.

There is no dispute as to the facts. The mortgage contained a stipulation reading as follows: 'It is further expressly agreed and understood by and between the parties hereto that in the event said promissory note is not paid at the maturity thereof, together with the interest due thereon, or any part thereof, the same may be renewed at the option of the said party of the second part, and said renewal note and interest shall be secured by this mortgage, and the same shall continue a lien upon said premises until the debt hereby secured and any and all renewals thereof, shall be fully paid and satisfied.' The appellant contends that he has at all times relief upon this stipulation as a waiver of any defense under the statute of limitations, and as preserving to him a continuing lien upon the premises; that he has therefore refrained from bringing suit by foreclosure, or otherwise, within the statutory period, and that the respondents should be estopped by the express terms of their contract from pleading the bar of the statute. The appellant falls into error in his interpretation of the clause above quoted. It simply accorded to him the right to demand and obtain renewal notes. This he failed to do, after one renewal had been made, and at all times after he purchased the note and mortgage. His mortgage lien and note are therefore barred, being more than six years past due. The trial court properly sustained the plea of the statute of limitations to the note and mortgage.

The appellant further contends that the trial court erred in refusing him an equitable lien for the taxes and assessments which he has paid. This contention should be sustained. Believing he held a valid mortgage lien not barred by the statute of limitations, the appellant in good faith paid the delinquent taxes and assessments for the purpose of protecting such lien. These payments were not voluntarily made. In Wheeler Company v. Pates, 43 Wash. 247, 86 P. 625, the holder of a void tax deed, claiming title, paid taxes on the land subsequent to the tax foreclosure and sale. His deed was afterwards adjudged to be invalid, but this court recognized his right to an equitable lien for the subsequent taxes so paid by him, saying 'Respondent's right of recovery is not based upon any statute, but it is upon purely equitable grounds, arising from the fact that the payments made have inured to the benefit of appellants, and have accomplished for them the discharge of a duty with respect to the land which they, as the real owners, were under obligations to discharge themselves.' In Hemen v. Rinehart, 45 Wash. 1, 87 P. 953, the plaintiff commenced an action to quiet his title to certain real estate as against a pretended judgment lien asserted by the defendants. In their answer the defendants pleaded facts upon which they relied to...