Harbican v. McAlister
| Decision Date | 14 December 1914 |
| Docket Number | 11641. |
| Citation | 82 Wash. 556,144 P. 717 |
| Parties | HARBICAN v. McALISTER et al. |
| Court | Washington Supreme Court |
Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge.
Action by Henry Harbican against Frank McAlister and others. From a judgment for plaintiff, defendants Charles L. Chamberlin and wife appeal. Affirmed.
Geo. W Shaefer, of Spokane, Chas. L. Chamberlain, and Post, Avery & Higgins, of Spokane, for appellants.
S. T Crane, Cordiner & Cordiner, and Joseph Rosslow, all of Spokane, for respondent.
This is an action by the assignee to foreclose a mortgage and to recover judgment against subsequent purchasers of the mortgaged premises, who, it is alleged, assumed the debt. In the complaint it is alleged that on June 18, 1907, the defendants McAlister and wife, being then the owners of a certain lot in the city of Spokane, gave to one Major a mortgage thereon to secure the payment of a note for $6,150 and interest. It is then alleged:
'That thereafter the said J. M. Murchie and Isabel Murchie, two of the above-named defendants, purchased said lot 5 and assumed and agreed to pay said note and said mortgage according to the tenor thereof; that thereafter the said Charles Chamberlin and Sadie W. Chamberlin, husband and wife, two of the above-named defendants, purchased said lot 5 on Block 33 in Cannon's addition, and assumed and agreed to pay said note and mortgage according to the tenor thereof all of which is more fully shown by the records on file in the auditor's office of Spokane county, Wash.; and that on or about the ___ day of March, 1912, Frank E. Leland and Sarah T. Leland, husband and wife, two of the above-named defendants, purchased said lot 5 in block 33 in Cannon's addition to Spokane Falls (now Spokane), Wash., from the said Charles Chamberlin and Sadie W. Chamberlin, and assumed and agreed to pay said note and mortgage according to the tenor thereof.'
There is then set up a second cause of action for the foreclosure of a second mortgage. With this we are not concerned. It is averred that both mortgages and the notes secured thereby have been assigned by the mortgagees to the plaintiff, who is now the owner of the same, and that the debts secured are unpaid. The prayer is for the usual decree foreclosing the mortgages, for a sale of the property, for an application of the proceeds to the payment of the amounts found due, and that the plaintiff have judgment and execution against the defendants and each of them for the deficiency, if any, that may remain after so applying the proceeds.
The court's findings of fact are embodied in the decree, but they are separately stated and set out in paragraphs numbered from 1 to 10, inclusive, and are followed by the decree proper, also set out in separate paragraphs numbered from 1 to 7, inclusive. The court, after finding the execution of the note and mortgage sued on in the first cause of action and the plaintiff's ownership thereof, found that:
'(4) Thereafter the premises described in said complaint and said mortgage, to wit, lot 5 in block 33 in Cannon's addition to Spokane Falls (now Spokane), Wash., were, by mesne conveyances, transferred to the said Charles L. Chamberlin and Sadie W. Chamberlin and by them sold and transferred to the defendant Sarah T. Leland, and that the said Sarah T. Leland, Charles L. Chamberlin, and the community consisting of the said Charles L. Chamberlin and Sadie W. Chamberlin, his wife, assumed and agreed to pay said note and said mortgage according to the terms thereof.'
There is also a finding of the amount due to the plaintiff on the mortgage contained in the first cause of action, and that the same is due from the defendants McAlister and wife, Sarah T. Leland, Charles L. Chamberlin, and the community consisting of Charles L. Chamberlin and Sadie W. Chamberlin, husband and wife. It is then found:
'(10) That each and all of the allegations and averments in the plaintiff's complaint are true and correct.'
No exceptions whatever were taken to any of the findings.
The decree was entered on May 29, 1913. It awarded a personal judgment against the defendants McAlister and wife, Sarah T. Leland, Charles L. Chamberlin, and the community consisting of Chamberlin and wife, on the first cause of action, directed a sale of the mortgaged property to pay the same, and directed the docketing of a judgment against them for the amount of any deficiency remaining after the application of the proceeds of sale upon the judgment. On July 12, 1913, the land was sold by the sheriff and bid in by the plaintiff for $4,500. The sheriff's return shows a deficiency of $3,649.41. The defendants presented their proposed findings on July 15, 1913. This was of course too late to be of any avail. On July 22, 1913, the defendants Chamberlin appealed.
The respondent objects to any consideration of the statement of facts, and moves that it be stricken and the judgment affirmed on the ground that no exceptions were taken to any of the court's findings. The appellants claim that no exceptions were necessary because the findings were included in the decree. The findings, however, were not commingled with the recitals of the decree proper, but were separately stated and numbered. They were followed by the decree, which was introduced by the words: 'Now, therefore, it is hereby ordered, adjudged, and decreed.' They were evidently intended as the findings of fact upon which the decree was based. The case is thus distinguished from McAllister v. McAllister, 28 Wash. 613, 69 P. 119, and Hagen v. Bolcom Mills, 74 Wash. 475, 133 P. 1000, 134 P. 1051, in which, as the opinion in each case shows, no recitals which could properly be denominated findings of fact were either separately made or included in the decree. The statute provides:
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State ex rel. Northeast Transp. Co. v. Superior Court of King County
... ... 100 P. 1031, and was in each of them decided in accordance ... with our present holding.' ... In ... Harbican v. Chamberlin, 82 Wash. 556, 144 P. 717, ... 718, we held that the decree of the trial court in an action ... of equitable cognizance is ... ...
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Bowman v. Webster, 32236
...This rule does not require the trial court to make findings in regard to every item of evidence introduced in a case. Harbican v. Chamberlin, 82 Wash. 556, 114 P. 717; Dillabough v. Okanogan County, 105 Wash. 609, 178 P. 802; Walters v. Munson, 176 Wash. 469, 30 P.2d 224; Shorrock v. Shorro......
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Corkrell v. Poe
...collated and reviewed, and we think the better reasoning sustains the principle there adopted. We have ourselves held in Harbican v. Chamberlin, 82 Wash. 556, 144 P. 717, that the deed in which it is affirmatively found that grantee expressly assumed the mortgage imports a consideration, af......
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Wilkeson v. Rector, etc., of St. Luke's Parish of Tacoma
...it, in the absence of an affirmative showing in the finding itself that the necessary facts to sustain it did not exist. Harbican v. Chamberlin, 82 Wash. 556, 144 P. 717; Rich v. Kruger, 130 Wash. 656, 228 P. 1012. The decree will not be reversed, even though the findings may be defective, ......