Harder v. McKinney, 26212.

• Decision Date: 24 August 1936
• Docket Number: 26212.
• Citation: 60 P.2d 84,187 Wash. 457
• Parties: HARDER v. McKINNEY et al.
• Court: Washington Supreme Court

60 P.2d 84

187 Wash. 457

HARDER v. McKINNEY et al.

No. 26212.

Supreme Court of Washington

August 24, 1936

Department 1.

Appeal from Superior Court, Pacific County; H. W. B. Herren, Judge.

Suit by John Harder against E. S. McKinney and others. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment modified and, as modified, affirmed.

Fred M Bond, of South Bend, for appellants.

E. L Casey, of Walla Walla, and Welsh & Welsh, of Raymond, for respondent.

This is a suit by John Harder against E. S. McKinney and wife, Edgar Patrick and wife, G. W. Jackson and wife, and others, on a note and mortgage given by E. S. McKinney and wife to Edgar Patrick, wherein findings of fact and conclusions of law were entered in favor of the plaintiff. There was judgment and decree of foreclosure in favor of plaintiff, according to the findings and conclusions. The defendants have appealed.

The findings of fact are, in substance, as follows: On May 9 1931, E. S. McKinney and his wife, for value received executed and delivered to Edgar Patrick their negotiable promissory note in the sum of $3,000, due three years after date, with interest payable annually at 7 per cent. per annum. At the same time, and in order to secure the payment of the note, the makers executed and delivered to Edgar Patrick a real estate mortgage on 100 acres of oyster land in Pacific county. The mortgage was recorded in the auditor's office of the county on June 1, 1931.

After the execution and delivery of the note and mortgage, and prior to maturity, Edgar Patrick, for a valuable consideration, indorsed the note, and, by an assignment in writing of the mortgage, delivered them to John Harder, the respondent. The assignment of the mortgage was placed of record in the auditor's office of that county on June 15, 1931.

The assignment of the note and mortgage was made by Edgar Patrick to John Harder as collateral and pledge to protect Harder against any payment he might be compelled to make on account of a negotiable promissory note payable to Arthur Goodwin, a son-in-law of Harder, given by Harder, Patrick, and one H. E. Young, for money borrowed in the sum of $3500.

Upon the maturity of the $3500 note, John Harder, one of the joint and several makers of it, was called upon to pay, and did pay, the full amount of the note to Arthur Goodwin.

Thereupon Harder brought suit in the superior court for Walla Walla county to foreclose the pledge by Edgar Patrick of the McKinney note and mortgage. That suit resulted in a judgment for Harder, which was executed by a sheriff's sale of the McKinney note and mortgage to John Harder.

The trial court further found in the present case that the amount due and owing at the date of the trial from the defendants E. S. McKinney and wife and Edgar Patrick is the sum of $3484.89, with interest at 7 per cent. per annum, and attorneys' fees as provided in the note; that the provisions of the note and mortgage have not been kept by the makers, because of their failure to pay principal and interest as provided therein, and also because the makers permitted taxes on the real estate to become delinquent; and that the interest of the defendants or any of them in the real property described in the mortgage is junior and subordinate to the lien of the mortgage held by the plaintiff.

The conclusions, judgment, and decree of foreclosure of the mortgage follow the findings in favor of John Harder, the respondent.

The trial court made seven findings of fact. Assignments of error 1 to 7 attack those findings.

It is argued, generally, that the findings are contrary to the preponderance of the evidence. In our opinion, the preponderance of the evidence is in favor of the findings, though in some respects the evidence is conflicting.

It is more particularly contended, under other assignments, that the respondent is not a bona fide holder, for value, of the McKinney note, because, upon delivery of the note and mortgage, Edgar Patrick, the payee, gave, it is claimed, only a portion of the face value of the note promising to pay the balance upon a sale of the note and mortgage intended to be made by Edgar Patrick, which promise was never complied with. There was some...