Hull v. Vining

• Decision Date: 13 July 1897
• Citation: 17 Wash. 352,49 P. 537
• Parties: HULL v. VINING ET AL.
• Court: Washington Supreme Court

49 P. 537

17 Wash. 352

HULL v. VINING ET AL.

Supreme Court of Washington

July 13, 1897

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Suit to foreclose a mortgage by Aurelius B. Hull against Ralph T Vining and others. From a deficiency judgment against defendant Truman W. Enos, and from an order denying his motion to vacate the same, he appeals. Reversed.

Stiles & Stevens, for appellant.

Murry &amp Scott, for respondent.

GORDON J.

The respondent brought suit in the superior court of Pierce county to foreclose a mortgage upon certain real property therein situated, given to secure a note executed by Ralph T Vining and wife, for the sum of $3,500 and interest. In the foreclosure suit the appellant, Truman W. Enos, was made a party defendant under the allegation that he had purchased the mortgaged property subsequent to the execution of the mortgage "for a good and valuable consideration, a part of which was the assumption of said mortgage, which mortgage debt said defendant Truman W. Enos agreed to pay, and said agreement was incorporated in and made a part of the deed of purchase." On October 15, 1896, the default of appellant was entered, and on the same day a decree of foreclosure and sale was also entered for the sum of $4,321.27 exclusive of costs. On November 16, 1896, the mortgaged premises were sold for the sum of $3,500, the respondent becoming the purchaser. On November 24, 1896, a deficiency judgment was entered against appellant for the sum of $858.96. About December 1 1896, the appellant, upon notice, moved the lower court to vacate and set aside the default and judgment, and for leave to answer in the action. This motion was based upon files in the foreclosure suit and his own affidavit. In the affidavit it is stated that the summons and complaint was served upon him on August 7, 1896. Referring to that portion of the deed above set out alleging appellant's assumption of the mortgage debt he states in the affidavit that he never assumed or agreed to pay the mortgage debt, or any part thereof. "And it was thereupon expressly understood and agreed between said Vining and this affiant that the deed from said Vining to this affiant should be a warranty deed, except that Vining would not warrant against plaintiff's said mortgage, and one other subsequent mortgage for the sum of $1,000, which sum was a lien upon said premises, but that the said deed should show by its terms that it was made subject to said two mortgages; and it was further expressly agreed between said Vining and this affiant that this affiant would not assume, and that the deed of said Vining to this affiant should not contain any words whereby this affiant would appear to assume, the payment of said mortgages, or either of them, or any part thereof. That thereupon, and about August 29, 1892, said Vining caused to be prepared, ready for signature and acknowledgment, a proper warranty deed for said premises in accordance with the agreement theretofore made between said Vining and this affiant, and said Vining on said last-mentioned day submitted said deed to this affiant for his approval, and thereupon this affiant approved the same, and agreed to accept it when executed and acknowledged by said Vining and his said wife, and returned it to said Vining for execution and acknowledgment. That thereupon said Vining and his said wife, on said 30th day of August, 1892, executed and acknowledged said deed, and delivered said deed to this affiant, and affiant thereafter, and on the 8th day of September, 1892, caused the same to be recorded. That after the time when said Vining took said deed for the purpose of executing and acknowledging it, after having exhibited it to this affiant for his approval, and before the time when said Vining delivered said deed to this affiant, said Vining, without the knowledge or assent of this affiant, and in violation of the terms of the agreement for the sale of said premises then existing between himself and this affiant, and surreptitiously, and for the purpose of defrauding this affiant, caused the words, 'which said mortgage the grantee herein assumes and agrees to pay,' to be written and interlined in said deed next after the words, 'and due Oct. 19, 1892,' and said Vining caused said words to be so skillfully written and interlined in said deed that this affiant, who believed that said Vining would execute and deliver said deed to him in the form proposed to and approved by him, as aforesaid, was deceived and misled, and did not read over the body of said deed when the same was delivered to him, and received and accepted said deed supposing and believing that it was the deed proposed to him for his approval, and in the same form, and none other. That this affiant did not discover the fact that said words had been written and interlined in said deed until about the 6th day of April, 1895, when the said Vining and wife had removed from the state of Washington, and become residents of the state of California, where they now reside. That this affiant would not have accepted said deed from said Vining, and would not have become the purchaser of said premises at all, had he known that said deed contained said written in and interlined words, and had he not relied upon said Vining, and believed that he would execute and deliver said deed in the form approved by this affiant as hereinbefore stated." In connection with the application to vacate and set aside the default and judgment, appellant tendered and exhibited an answer to the complaint of foreclosure embracing substantially the matter set forth in the affidavit. In his affidavit appellant states as a reason why he had not interposed the defense timely that he had had frequent conversations with one of the attorneys for the respondent, in which conversations he had informed said attorney "of all the facts and circumstances connected with affiant's purchase of said mortgaged premises," and that by reason of such facts he was not bound to pay the mortgage debt, and also that he would not pay the same, "and would defend any action which plaintiff might bring against him on said alleged assumption by him of said debt"; that thereupon he requested the...