Dexter, Horton & Co. v. Long

• Decision Date: 15 June 1891
• Court: Washington Supreme Court
• Parties: DEXTER, HORTON & CO. v. LONG.

27 P. 271

2 Wash. 435

DEXTER, HORTON & CO. v. LONG.

Supreme Court of Washington

June 15, 1891

Appeal from superior court, King county.

Cole, Blaine & De Vries, for appellant.

J. H. Allen, for appellee.

DUNBAR J.

We are of the opinion that, construing the complaint together, and considering the relief prayed for, the complaint is simply for a foreclosure of a mortgage, and that the question of whether or not the vendor's lien exists in this state is not in issue in this case. There were some allegations in the complaint which were not necessary to a complaint in foreclosure, but they were subject to a motion to strike, and were not grounds of demurrer. The demurrer, we think, was properly overruled. It is contended by the appellant that the complaint should have alleged what interest the appellee had in the lands which plaintiff sought to foreclose. The sufficiency of the complaint in this respect, it seems to us, is established by almost universal usage. The form prescribed by Estey is: "The defendant has or claims some interest in or lien upon the said real property; but the same, whatever it may be, is subject to the lien of the said mortgage." This is substantially the same as the tenth allegation in the complaint in this cause and is all the allegation that is necessary. The defendant's answer was a general denial, and his claim if he had any, was not disclosed. It is claimed by the appellant that this was not a disclaimer of interest, and that it put in issue the fact that it was subject to plaintiff's lien, and cites Elder v. Spinks, 53 Cal. 293, in support of its contention. This case evidently sustains appellant's theory, but is in conflict with the earlier California authorities, and, we believe, with the well-established and generally recognized practice. In Anthony v. Nye, 30 Cal. 402, it was held that in an action to foreclose a mortgage the allegation that a party who is made co-defendant with the mortgagor has, or claims to have, some interest or claim upon the mortgaged premises, is sufficient without averring the character of the interest; and Judge SAWYER, who rendered the opinion, says: "The allegation of her claim and interest is in the form universally adopted and long established. The plaintiff is not supposed to know the nature of every person's claim. It is enough that the claim is set up. It is the defendant's business, when this claim is set up to disclose its nature. There is no personal judgment against the wife. If she has no claim, she is in no way injured. If she has any, she has had opportunity to present it. There is neither merit nor plausibility in the objection,"-the objection being that the complaint did not disclose the defendant's interest. To the same effect, see Mitchell v. Steelman, 8 Cal. 363; Pom. Rem. (2d Ed.)§ 341. We think the doctrine laid down by the earlier California courts much more in harmony with the general rules governing pleadings than the doctrine promulgated by the later case, and therefore feel bound to follow it. The only object in making Dexter, Horton & Co. parties to the suit was to settle any claim that they might set up to the mortgaged premises. The object of the law in permitting this is to avoid a multiplicity of suits, so that all claimants may have their rights adjusted in one action.

Another objection raised by the appellant is that the mortgage was not executed by the trustees of the defendant corporation but that the president and secretary, by whom the mortgage was executed, had no authority to enter into such a contract, and that it was therefore ultra vires. Even conceding that the contract...