Denny v. Beeman

• Decision Date: 04 December 1901
• Citation: 26 Wash. 469,67 P. 268
• Parties: DENNY v. BEEMAN (PALMER, Intervener.
• Court: Washington Supreme Court

67 P. 268

26 Wash. 469

DENNY v. BEEMAN (PALMER, Intervener.

Supreme Court of Washington

December 4, 1901

Appeal from superior court, Snohomish county; Frank T. Reid, Judge.

Action by Charles L. Denny against Orrie Beeman for foreclosure of a mortgage, in which Percy H. Palmer intervenes, claiming as a subsequent purchaser of the mortgaged premises. From a judgment for plaintiff, intervener appeals. Affirmed.

J. A. Coleman, for appellant.

George E. Wright, for respondent.

HADLEY J.

By the amended complaint in this cause it appears that respondent is, by purchase and assignment, the owner and holder of a certain note executed by one Orrie Beeman on or about the 20th day of June, 1893. At the time of the execution of the note, a mortgage upon certain real estate in Snohomish county was given by the maker of the note to secure the same. Respondent is also the holder of the mortgage, and seeks to foreclose it in this action. The original complaint was against Beeman, the mortgagee, alone, but the appellant asked leave to intervene in the cause, which was granted, and thereafter the amended complaint was filed. The mortgage contains a covenant that, in the event of default in payment of the debt, it may be foreclosed, and the land sold to satisfy the principal and interest of the debt, together with any sum paid as taxes upon the mortgaged land by the mortgagee, and also for $50 attorney's fees. It is alleged that on the 2d day of April, 1900, respondent paid to the county treasurer of Snohomish county the sum of $74.36 as taxes upon the said mortgaged premises, which taxes were then due, owing, and delinquent, and were a lien upon the said premises paramount to the lien of the mortgage; that the said note became due on the 20th day of December, 1893, but no part of the principal or interest thereon, or the sum paid as taxes or interest thereon, has ever been paid; that more than four years prior to the commencement of this suit was defendant, Beeman, the maker of the note and mortgage, departed from the state of Washington and ever since, for the period of more than four years next prior to the commencement of this action, has resided outside the state of Washington, and has been continuously absent therefrom. Appellant demurred to the amended complaint on the ground that the action was not commenced within the time limited by law. The demurrer was by the court overruled, and appellant duly excepted to said ruling. Thereupon appellant answered, denying certain allegations of the amended complaint, and alleging affirmatively that on December 23 1893, the said mortgagor duly conveyed by deed all the property described in the complaint to the appellant, who ever since has been, and now is, the owner thereof; that said deed of conveyance was, on April 19, 1900, duly filed for record in the office of the auditor of said county; and that this action has not been commenced within the time limited by law. Respondent interposed a general demurrer to the affirmative matter contained in the answer, which demurrer was by the court sustained, to which ruling the appellant duly excepted. Appellant thereupon elected to stand upon his said answer, and declined to plead further. The cause was tried by the court upon the issues thus presented, and decree entered foreclosing the mortgage for the amount of the principal and interest due upon said note, together with the amount...