Fuhrman v. Power

• Decision Date: 06 September 1906
• Citation: 43 Wash. 533,86 P. 940
• Parties: FUHRMAN v. POWER et al.
• Court: Washington Supreme Court

86 P. 940

43 Wash. 533

FUHRMAN v. POWER et al.

Supreme Court of Washington

September 6, 1906

Appeal from Superior Court, Skagit County; Geo. A. Joiner, Judge.

Action by Henry Fuhrman against James Power and others. From the judgment plaintiff appeals. Affirmed.

Million & Houser, for appellant.

J. L Corrigan, for respondents.

HADLEY J.

This is an action to foreclose a mortgage. The historical facts and circumstances disclosed by the pleadings and findings of the court are as follows: On April 26, 1893, one Finley B Garrison executed and delivered to plaintiff his promissory note for the sum of $500, due one year after date, with interest. On the same day the said Garrison, being then an unmarried man, executed and delivered to plaintiff a mortgage upon certain real estate in Skagit county, Wash., the mortgage being given to secure the payment of said note. No part of the note has been paid except the sum of $25 which was paid on March 30, 1894. For the purpose of protecting his security, the plaintiff has paid all taxes upon said property since the execution of the mortgage amounting in the aggregate to $365, no part of which has been repaid to plaintiff. On the 13th day of June, 1894, said Finley B. Garrison died intestate. At the time of his death he was a resident of this state, and he left neither wife nor children surviving him. He, however, left surviving him his father, Samuel B. Garrison, and his mother, _____ Garrison neither of whom has ever been a resident of this state. In the month of June, 1896, the mother died, leaving as her heirs her said husband and the following children, who are brothers and sisters of said Finley B. Garrison, viz.: Ida E. Bartz, Charles E. Garrison, Myrtle May Lusk, Mary Weaver, Ola Garrison, Thomas Garrison, and B. S. Garrison. No one of the brothers and sisters has resided in this state except said Thomas Garrison, Ola Garrison, and Myrtle May Lusk, they having resided continuously in this state for more than 10 years last past, prior to the commencement of this action. No letters of administration have ever been issued, and no probate proceedings have ever been instituted in this state concerning the estate of Finley B. Garrison or that of his said mother. On the 20th day of April, 1900, the plaintiff filed with the clerk of the superior court of Skagit county a complaint for the foreclosure of said mortgage. Summons was issued and return was made that said Finley B. Garrison could not be found in said county. Thereafter affidavit as to nonresidence was filed, and an order for publication summons in the action was made by the court. Such a summons was issued, and was first published on the 11th day of October, 1900. On the 15th day of April, 1901, judgment by default was entered in the action, foreclosing the mortgage and ordering the property sold for the satisfaction of the debt. On the 18th day of May, 1901, the sheriff sold the property under such order of sale, and the plaintiff was the purchaser. The sale was confirmed and on the 20th of May, 1902, a sheriff's deed was executed and delivered to plaintiff, which deed was thereafter duly recorded. At the time of the commencement of said foreclosure proceedings, of the taking of the judgment and of the sale of the property, the plaintiff had no knowledge of the death of Finley B. Garrison. The present action to foreclose the same mortgage was commenced in June, 1904. Samuel B. Garrison, father of the mortgagor as above stated, was made a party defendant, together with all other persons unknown claiming any interest in the mortgaged land. Publication summons was issued and published, and one James Power appeared as defendant. He answered setting up many of the foregoing facts and alleging that he is the grantee of the interests of all of the aforesaid heirs except that of B. S. Garrison. He also alleged that more than six years elapsed from the time the cause of action accrued before this action was commenced, and that it was not commenced within the time limited by law. He further alleged the facts as to the former foreclosure action, that no personal service was had therein, and that no summons was published until after the lapse of more than 90 days after the complaint was filed; that the judgment and all proceedings thereunder were void, and that they constituted a cloud upon the land which he asks to have removed. After a trial, the court found the facts substantially as above stated, and entered judgment denying foreclosure for the mortgaged debt, but awarding judgment to the plaintiff for $365, the amount of taxes paid by him upon the property with 6 per cent. per annum interest thereon from the dates of the payments. The decree also declares said amount and the interest to be a lien upon the property, and orders the land sold for the satisfaction of the judgment. The plaintiff has appealed.

Appellant requested the trial court to find that the proceedings under the first foreclosure were regular, valid, and of binding force and effect. Such request seems to be inconsistent with appellant's theory when he instituted this, a second foreclosure action. By the bringing of the present action he must have conceded that the former foreclosure was irregular, and not of binding force and effect. In any event, without reference to the fact that the mortgagor was dead at the time the action was brought and the judgment rendered, this record shows that the only service was by publication summons, and that the first publication was not made until more than 90 days after the complaint was filed. There was therefore no service upon which judgment could have been rendered. Deming Investment Co. v. Ely, 21 Wash. 102, 57 P. 353. The court did not err in holding the first...