Clay v. Selah Valley Irr. Co.

• Decision Date: 22 May 1896
• Citation: 14 Wash. 543,45 P. 141
• Parties: CLAY ET AL. v. SELAH VALLEY IRRIGATION CO. ET AL.
• Court: Washington Supreme Court

45 P. 141

14 Wash. 543

CLAY ET AL. v. SELAH VALLEY IRRIGATION CO. ET AL.

Supreme Court of Washington

May 22, 1896

Appeal from superior court, Yakima county; Carroll B. Graves, Judge.

Action by H. G. Clay and others against the Selah Valley Irrigation Company (a corporation), F. S. Davis, and others, to foreclose a trust deed to obtain the appointment of a receiver. From an order appointing a receiver, defendant corporation appeals. Affirmed.

H. J. Snively and Fred Miller, for appellant.

Reavis & Englehart, for respondents.

SCOTT J.

This is an appeal from an order appointing a receiver. The appellant the Selah Valley Irrigation Company, on November 29, 1892 issued 300 bonds, of $500 each, with interest coupons attached, and payable to bearer on the 1st day of October 1902, bearing interest at the rate of 8 per cent. per annum payable on April 1st and October 1st of each year, until maturity. At the time they were issued, appellant executed a deed of trust to the Mason Mortgage Loan Company, trustee, conveying certain parcels of real property, consisting of about 5,200 acres, in Yakima county, together with an irrigating canal of about 22 miles in length, used for the purpose of irrigating said lands, and other lands situate on the line of the canal, and covering all of the revenues, rents, and tolls for water arising from the canal, and all corporate and other franchises, rights, and privileges then owned or to be owned by said appellant within this state. The said deed of trust was executed for the security and benefit of all the holders of the bonds and interest coupons issued as aforesaid; and the Mason Mortgage Loan Company also guarantied the payment of said bonds, and they were negotiated to divers persons. The respondents were the owners of 51 of the bonds, and brought this action to foreclose said deed of trust, and asked for the appointment of a receiver to take charge of the property. The court appointed a receiver, and this appeal was taken therefrom.

Before proceeding upon the merits, the respondents move to strike certain affidavits contained in the record, purporting to have been used on the hearing of the motion for the appointment of the receiver, on the grounds that no certificate of the judge of the superior court is attached thereto, and that the same have not been incorporated in any statement of facts or bill of exceptions. Appellant contends that said affidavits are properly before this court, under section 15, p. 118, Laws 1893, especially under the clause providing that all matters shall be deemed a part of the record which were theretofore a part, and that it is not necessary to embody the same in a statement of facts. We do not think these affidavits would have been considered a part of the record under the prior practice. There is nothing to show that they were all presented or read to the court below on the hearing of the motion, and, in order to entitle them to consideration here, the fact that they were so presented should have been certified to by the court in some manner, and the motion to strike them is granted.

No statement of facts was settled, and the matters alleged as error by appellant must be determined by the sufficiency of the allegations of the complaint; it appearing in the order of the court appointing the receiver that proof was submitted in support of the allegations upon which the appointment of the receiver was asked. It is contended that the complaint does not state a cause of action, because there is no allegation showing that any request was made upon the trustee to have the principal sum declared due, which appellant contends the sixth article of the trust deed requires. It is contended that this trust deed is peculiar in this respect that it invests the right only in the trustee to declare the bonds due upon default in the payment of the interest; and that, under said article, appellant was entitled to a written notice from the trustee of his election to declare the principal sum due in case of default in the payment of the interest; and that it does not appear by the complaint that any such notice was given by either the trustee or the bondholders. And it is contended that this provision for a written request excepts the case from the ordinary rule that no demand is necessary before commencing suit; and, furthermore, that the eighth article of the trust deed provides a method of foreclosure in the name of the trustee, which excludes all other methods. The sixth article provides that in case default is made in the payment of the interest upon said bonds, or any of them, and such default shall continue for a period of 30 days after the payment of such interest has been demanded by presentation of the coupons to the trustee, the principal of...