Corkrell v. Poe

• Decision Date: 22 March 1918
• Docket Number: 14460.
• Citation: 171 P. 522,100 Wash. 625
• Parties: CORKRELL v. POE et al.
• Court: Washington Supreme Court

171 P. 522

100 Wash. 625

CORKRELL v. POE et al.

No. 14460.

Supreme Court of Washington

March 22, 1918

Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by Harriet E. Corkrell against James F. Poe and George B Burke and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Williamson Williamson & Freeman, M. J. Gordon, and Wesley Lloyd, all of Tacoma, for appellants.

E. D Hodge, of Tacoma, for respondent.

HOLCOMB, J.

Respondent sued to foreclose a mortgage given by appellant Poe upon 44 lots in Tacoma on December 15, 1909, for the sum of $2,500 with interest as stipulated remaining unpaid, and for deficiency judgment against appellant Poe and appellants Burke and wife, who are subsequent and remote grantees of Poe.

1. On December 27, 1909, Poe sold and conveyed the mortgaged premises to the Robert Wingate Estate, a corporation, and covenanted in his deed that he would assume and pay the mortgage theretofore given by him to respondent. On August 6, 1915, the Robert Wingate Estate sold and conveyed the mortgaged premises to appellant Burke, with general covenants of warranty. The deed did not contain an agreement made between Burke and his grantor, the Wingate Estate, that the covenant of warranty should apply as against the mortgage, and thereafter, in order to cover that matter at the request of an agent of the wingate Estate, Burke, on August 28, 1914, executed an instrument prepared by the agent, reciting that, for the purpose of correcting the deed to him and for the further consideration of one dollar, 'the said George B. Burke hereby assumes and agrees to pay the mortgage.' In her complaint respondent alleged that subsequent to the execution and delivery of the mortgage, on or about December 15, 1913, she and appellant Poe agreed upon an extension of the time of payment of the note and mortgage to December 15, 1916, subject to the terms and conditions thereof, etc.

This allegation appellant Poe denied in his answer, and at the trial contended that the extension made by respondent was not made to and with him, but to and with the Robert Wingate Estate, the then record owner of the premises, and that such extension of the mortgage operated in law to release appellant Poe from any further liability thereunder. As to the extension the court found that it was not a valid extension of the mortgage, and therefore rendered judgment for the deficiency against appellant Poe. Respondent testified that, at the time the extension was made, the request therefor was made by Opie & Co., who had always sent the interest on the mortgage from the time that the premises were mortgaged by Poe, and she supposed that Opie & Co. acted for Poe; that when the request for an extension of time was made she believed that it was made on behalf of Poe, and that in granting it she granted it to Poe. The instrument sent her for execution to extend the time of the notes and mortgage did not disclose the name of the grantee to whom the extension was granted, but provided as follows:

'This is an extension of the above mortgage until the 15th day of December, 1916, interest to be paid semiannually and all conditions of the mortgage as recorded above to be complied with by the mortgagor.'

Poe was certainly the mortgagor. But appellant Poe contends that, since the deed from him to Wingate Estate, made 12 days after the mortgage by Poe to respondent, was duly filed of record, and that the statute (Rem. & Bal. Code, § 8781) provides that deeds so filed shall be notice to all the world, therefore respondent, was bound to take notice, even though notice was constructive only, that Poe had conveyed the land to the Wingate Estate, and that any extension of the mortgage upon the premises was necessarily granted to the Wingate Estate. This, however, does not take into consideration the express terms of the deed of Poe to the Wingate Estate, which contained the express covenant that he still assumed and agreed to pay the mortgage. The Wingate Estate did not take his place as mortgagor, and he did not stand in the comparable relation of a surety for his grantee as most of the authorities consider such situation. If respondent took notice of the deed as recorded, she at the same time took notice that Poe was still the only mortgagor, and bound himself anew to satisfy the debt and mortgage. Respondent had no actual notice of the transfer of the premises from Poe to another grantee until 1915, when it had been conveyed to appellant Burke. Therefore under the notice of record by the deed to the Wingate Estate that Poe still assumed the mortgage and her belief that the extension was asked in behalf of Poe, when the extension was granted, if it was not in fact granted to Poe, it was not a valid extension, and the court was right in thus dealing with the contention of appellant Poe. His position had to be like that of a surety, for his grantee, who assumed his primary obligation in order to be released by a valid extension of the mortgage to his grantee unauthorized by him. He would therefore still be personally liable upon the notes and mortgage, and the deficiency judgment against him was proper.

2. Appellants Burke contend: (1) That they did not assume and agree to pay the mortgage; and (2) that had they assumed and agreed to pay the mortgage, in view of the fact that the Wingate Estate, their immediate grantor, was not liable to a deficiency judgment, and had not assumed and agreed to pay the mortgage, they would not be liable to a deficiency judgment.

As to the first of these contentions the court found that they did assume and agree to pay the mortgage. This finding is sustained by the instrument of record purporting to be an instrument correcting the deed from the Wingate Estate to Burke, in which he agreed in writing, on August 28, 1914 that the deed was incorrect, and that it should have provided that he assumed and agreed to pay the mortgage, and that it should be so corrected; and by further testimony on the part of the agent of the Wingate Estate, although controverted by Burke, to the effect that it was agreed between the Wingate Estate and Burke that he should assume and agree to...