Clambey v. Copland
| Decision Date | 13 April 1909 |
| Citation | 52 Wash. 580,100 P. 1031 |
| Parties | CLAMBEY et al. v. COPLAND et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; Geo. E. Morris, Judge.
Action by A. H. Clambey and another against D. L. Copland and others. From the decree, plaintiffs appeal. Affirmed.
S. S Langland, for appellants.
Charles A. Riddle, for respondents.
This is an action prosecuted by the appellants, plaintiffs below, to remove a cloud upon and quiet title to lot 2, block 16, of Central Seattle. The matters presented for our consideration involve only the correctness of the trial court's conclusions of law and decree rendered upon the findings of fact; none of the evidence having been brought into the record by statement of facts or bill of exceptions.
From the court's findings of fact it appears: That on November 17, 1903, Charles P. Downer and wife became indebted to the plaintiff A. H. Clambey in the sum of $300, and, being the owners of the premises in question, executed and delivered to him a deed therefor as security for the payment of such indebtedness, and not otherwise, which deed was duly recorded in the office of the auditor of King county. Contemporaneously with the execution and delivery of the deed, the plaintiff A. H. Clambey executed and delivered back to Charles P. Downer the following instrument in writing:
Thereafter Downer continued to exercise ownership and dominion over the premises. About January 1, 1904 Downer, not having made any of the payments provided for in the latter instrument, returned it to plaintiffs, giving them notice that he refused to comply with its terms. On February 27, 1904, Downer and wife executed and delivered to the defendant D. L. Copland a second deed for the same premises, which was duly recorded in the office of the auditor of King county, which ded was given for the purpose of securing the payment of a debt evidenced by a $400 promissory note executed September 10, 1903, by Downer and wife to Georgina Copland which had by assignment become the property of the defendant D. L. Copland. Both of these notes remain unpaid, and no action has been commenced upon either of them or to foreclose upon the premises pledged as security therefor by the two deeds. Prior to the commencement of this action, the defendant D. L. Copland offered to pay to the plaintiffs all the indebtedness due them from Charles P. Downer, with interest, including taxes and other legal charges paid out by them upon the premises, which plaintiffs have at all times refused to accept. Upon these facts the learned trial court concluded as matters of law that the deed give by Downer and wife to the plaintiff A. H. Clambey, November 17, 1903, was intended by the parties thereto as and at all times was and is a mortgage, ad that the second deed given by Downer and wife to the defendant D. L. Copland on February 27, 1904, was intended by the parties thereto as a mortgage, and thereupon made and entered its decree accordingly, denying the relief prayed for by plaintiffs.
It is contended by attorneys for the appellants that the deed from Downer and wife to Clambey was held by the learned trial court to be in effect a mortgage upon the deed and the contemporaneous so-called 'Option to purchase,' and upon no other facts, and that the court's general finding of fact that the deed was given 'as security * * * and not otherwise' is a mere conclusion of law, there being no detail facts or circumstances found, from which such a conclusion could be drawn. And, with this as their premise, they argue that these two instruments standing alone, do not warrant the conclusion that the deed was in legal effect only a mortgage. We are unable to agree with the contention that the general finding, to the effect that the deed was given as security and not otherwise, is a mere conclusion of law. It probably was based upon detail facts and circumstances shown by the evidence, and in this respect it may be in a sense a conclusion of fact, as are practically all findings of fact except such as are clothed in the very words of the evidence on which they are based. It is the ultimate or general fact found. In the absence of the evidence, which is not here for our review, we must conclude that this finding is a correct statement of the intention of the parties to the deed. Rathbun v. Thurston Co., 2 Wash. 564, 27 P. 448; Ferry v. King Co., 2 Wash. 341, 26 P. 537. Besides, this is a suit in equity; and, as has been held by this court, no formal findings are necessary to support the decree. White Crest Canning Co. v. Sims, 30 Wash. 376, 70 P. 1003. From this it follows that incomplete or defective findings of fact...
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... ... at its inception and that it is what the intention of the ... parties make it. Clambey v. Copland, 52 Wash. 580, ... 100 P. 1031; 20 Am. & Eng. Enc. L. (2d Ed.) 938; 1 Jones on ... Mortgages (3d Ed.) § 263 ... ...
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...it affirmatively so appears therefrom. Slyfield v. Willard, 43 Wash. 179, 86 P. 392; Gould v. Austin, 100 P. 1029.' Clambey v. Copland, 52 Wash. 580, 100 P. 1031, 1032. holding that findings of fact are not necessary in equity, therefore, the omission to find a precedent tender of taxes pai......
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