Dane v. Daniel

• Decision Date: 06 December 1900
• Citation: 23 Wash. 379,63 P. 268
• Court: Washington Supreme Court
• Parties: DANE v. DANIEL et al.

63 P. 268

23 Wash. 379

DANE v. DANIEL et al.

Supreme Court of Washington

December 6, 1900

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Zerviah B. Dane against Melissa K. Daniel and another for an accounting as to certain mortgage premises, and, in default of payment, that defendants be barred of all right of redemption. From a judgment in favor of complainant defendants appeal. Reversed.

R. L. Edmiston and A. E. Gallaher, for appellants.

Domer &amp Estep and Happy, Hindman & Langford, for respondent.

FULLERTON J.

The respondent, in her complaint, alleged: That on November 15 1890, George E. Spoor and Bella H. Spoor, his wife, being then the owners of certain real property situated in the county of Spokane, mortgaged the same to the Lombard Investment Company to secure the payment of their certain joint and several negotiable real estate first mortgage coupon bond for the sum of $5,000 and interest, given by them to evidence a loan made to them on that day by the Lombard Investment Company; that on the 29th day of November, 1890, the said Lombard Investment Company sold the bond and assigned the mortgage to the respondent; that Spoor and wife defaulted in the payment of the principal and interest due on the bond, and that on the 28th day of April, 1897, the respondent began a suit in the superior court of Spokane county to foreclose the mortgage, making parties defendant, among others, one P. M. Daniel and one Lelia A. Dyer; that such proceedings were had in such foreclosure suit as to result in a foreclosure of the mortgage and the sale of the mortgaged premises to the plaintiff, which sale was afterwards in all respects duly confirmed by the court. The complaint then continues as follows: '(6) That under said foreclosure and sale and the said certificate of sale from the said sheriff, executed in pursuance of said judgment, the plaintiff entered into possession of said mortgaged premises, and the receipts of the rents and profits thereof, and has since continued, and still is, in possession thereof. That she then believed she had acquired under said foreclosure a perfect title to the said mortgaged premises, free from all liens and incumbrances and rights of redemption other than the statutes of the state of Washington would give said defendants; but that she has since been informed and believes that the defendants Melissa K. Daniel and E. J. Dyer have, or claim to have, an interest in and to the said premises by virtue of the said Melissa K. Daniel claiming to be the wife of the said P. M. Daniel, and E. J. Dyer claiming to be the husband of the said Lelia A. Dyer, which rights, if any, are inferior and subsequent to the lien of the mortgage under which said foreclosure sale was made; the said P. M. Daniel and Lelia A. Dyer, being grantees of the said premises from the said Spoors subsequent to the execution of the mortgage aforesaid to the Lombard Investment Company. (7) This plaintiff was already the owner of the said mortgage under which said sale was had, and she is advised that by the said sale she has acquired the rights which the Anglo-American Land, Mortgage and Agency Company, Henry Hardy, P. M. Daniel, Lelia A. Dyer, and Powers Dry-Goods Company, who were defendants in said action, had to redeem from the mortgage held or claimed by the plaintiff, other than the statutory rights given defendants to redeem the premises from the foreclosure sale. (8) That the amount which was due and owing to the plaintiff in said action on the said mortgage at the time of the entry of said decree of foreclosure and sale, exclusive of the costs and expense of said action and of said sale, was the sum of $5,966.66, and interest thereon from the 11th day of January, 1898, no part of which has been paid, except as it was paid by the proceeds of said sale under which this plaintiff claims. (9) That the rents and profits received by this plaintiff from said premises have not been so great in amount as the annual interest on said mortgage under which said foreclosure was had, and have not amounted to more than the sum of $175; that the plaintiff claims that the amounts paid by her for taxes, repairs, and so forth, should be allowed to her, and added to the said mortgage and interest thereon; and that there is now due and owing to her thereon the sum of $6,350. (10) That the plaintiff has applied to said defendants Melissa K. Daniel and E. J. Dyer, and requested them to pay the plaintiff the said sum so due on the said mortgage held by the plaintiff, or to come to an accounting with her thereon, and, after the proper charges and credits, to pay to said plaintiff what should appear to be due her on said mortgage, or, in default thereof, to release their rights and equity of redemption in said mortgaged premises; but that the said defendants have hitherto refused and still refuse so to do, or to comply with any part of plaintiff's request. (11) The plaintiff further says that the said premises are not near equal in value to the amount due this plaintiff under said mortgage, the said premises not exceeding in value the sum of $4,500. Wherefore the plaintiff demands judgment that an account may be taken of what is due and owing to the plaintiff for principal and interest on said mortgage, and that an account may also be taken of the rents and profits of the said mortgaged premises which have been received by the plaintiff, and also of the expenditures of the plaintiff for repairs, taxes, and so forth; that the said defendants pay to this plaintiff what may be due her on taking the said account, with the costs of this action, within a time to be appointed by the court for that purpose, or, in default thereof, that the said defendants and all persons claiming under them be absolutely barred and foreclosed of and from all right, title, and equity of redemption in and to the said mortgaged premises, and each and every part thereof; and that the plaintiff have such other and further relief as in the premises may be just and equitable.' The appellants appeared separately, and demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. On their demurrers being overruled, they answered separately. The answers were, in substance, the same, and admitted the execution of the mortgage, the proceedings taken to foreclose the same, and that P. M. Daniel and Lelia A. Dyer were grantees of the Spoors. They denied there was anything due or owing on the mortgage, the allegation of want of knowledge on the part of respondent of their interest in the property, and all of the allegations contained in paragraphs 9 and 11 of the complaint. They then pleaded affirmatively the foreclosure proceedings had by respondent, averring that the mortgage indebtedness was satisfied thereby, and that such satisfaction was entered by respondent on the records of the court. Further answering, they alleged that Melissa K. Daniel was the wife of P. M. Daniel, and that E. J. Dyer was the husband of Lelia A. Dyer; that all that part of the mortgaged property conveyed by the Spoors to P. M. Daniel became and now is the community property of himself and wife; that all that part of the property conveyed by the Spoors to Lelia A. Dyer became and now is the community property of herself and husband,--all of which was well known to the respondent and her attorney at the time the foreclosure proceedings were had. The court sustained a general demurrer to the new matter contained in the answers, and thereafter a trial was had on the issues made by the denials to the allegations of the complaint.

The evidence introduced at the trial was very meager. Two witnesses testified as to the marketable and rental value of the mortgage premises, and the attorney for respondent as to the reason why the appellants were not made parties to the original foreclosure suit. His testimony we quote in full 'Q. Mr. Domer, were you the attorney for plaintiff in the original foreclosure proceedings on the mortgage referred to in this action? A. Yes, I was. Q. You may state to the court why Melissa K. Daniel and E. J. Dyer were not made parties to that action. A. The plaintiff furnished me an abstract of the title to the property, and their names did not occur as ever having any interest in the property. The names of P. M. Daniel and Lelia A. Dyer appearing as subsequent grantees of the mortgagors, and relying upon the abstract, I did not make these parties to that action. Q. Did you know at the time that P. M. Daniel was a married man, or that Lelia A. Dyer was a married woman? A. No, I did not. Q. When did you learn that they were married? A. About the time of the sale under the first foreclosure. Q. Was there any notice of record from Melissa K. Daniel or E. J. Dyer claiming any community interest in this property? A. No, there was not. Q. Mr. Domer, you were familiar, were you not, with the statute of this state requiring wives who claimed a community interest in real estate to place on record a declaration to that effect? A. Yes, sir.' Cross-examination: 'Q. Mr. Domer, did the abstract of said property which you examined show that Mr. P. M. Daniel was a single man? A. No, it did not. Q. Did you make any effort or inquiry at all other than examining said abstract to ascertain if P. M. Daniel was a married man, or that Lelia A. Dyer was a married woman? A. No, I did not, except to see that no notice of claims of a community interest in the property described in the complaint had been filed with the county auditor of Spokane county. Q. You expected and relied upon said abstract to show whether or not such a community claim had been filed, did you not? A. Yes, sir; I did.' One witness was sworn on the part of the...