In re Ninth Avenue North in City of Seattle

• Decision Date: 10 March 1914
• Citation: 78 Wash. 482,139 P. 219
• Parties: In re NINTH AVENUE NORTH IN CITY OF SEATTLE. v. DAVISON. GRAY
• Court: Washington Supreme Court

139 P. 219

78 Wash. 482

In re NINTH AVENUE NORTH IN CITY OF SEATTLE.

GRAY v. DAVISON.

Supreme Court of Washington

March 10, 1914

Department 1. Appeal from Superior Court, King County; Mitchell Gillian Judge.

Condemnation proceedings by the City of Seattle, in which Clarence H. Gray and S.E. Davison filed petitions asserting claim to the award. From a judgment in favor of the claimant Gray, the claimant Davison appeals. Reversed.

G. E Steiner and Walter B. Beals, both of Seattle, for appellant.

Chas M. Fouts, of Seattle, for respondent.

CHADWICK J.

Respondent has moved to dismiss the appeal in this case for several reasons, only one of which requires any discussion. The trial judge fixed a supersedeas in the sum of $1,500. A bond was given in the sum of $1,900. The appeal was from an order denying the payment of a deficiency judgment out of money then in the registry of the court. No judgment other than one of dismissal and for costs was entered. The purpose of the supersedeas was to cover any damages that might result to respondent in the event of an affirmance of the judgment. Delayed payment of money is always compensated by the payment of interest. The amount of the bond was ample to meet this object, or, if it were not, respondent might have made objection to it in the court below. The other grounds for dismissal are based on the assumption that appellant has no case on the merits, and are disposed of, but without particular notice or reference in the opinion which follows.

On February 23, 1907, Mrs. Van Alstine and her husband, now deceased, conveyed certain property in the city of Seattle to one L. W. Gray. The grantee made and delivered promissory notes aggregating $13,000 to cover a part of the purchase price. These notes were secured by two mortgages, one on the property in Seattle, and one on certain lots in the town of Tumwater, in Thurston county. Subsequent conveyances were made, so that, at all times material to our present inquiry, the title to the Seattle property was in Clarence H. Gray, the respondent.

In August, 1910, the city of Seattle commenced the work of regrading the street in front of the property covered by the mortgage, and on June 7, 1912, after due process and proceedings, an award of $5,042.80 was made as damages to the lots. An assessment for benefits was made in the sum of $2,633.78 and was made a charge upon the lots. The resulting fund is now in court and is the subject of the present controversy.

Appellant claims ownership of the impounded fund under the following state of facts: On January 17, 1912, Mrs. Van Alstine, in her own behalf and as executrix of her husband's estate, began an action in the superior court of King county to foreclose the two mortgages hereinbefore referred to. The suit passed to judgment on June 18, 1912, and the Seattle property was sold to appellant for the sum of $10,000. No sale was made of the Tumwater property, which property the judge found in this case to be of the probable value of $700. A deficiency remains after the application of the proceeds of the sale. Both parties petitioned the court in this proceeding for an order awarding the fund. The court below rendered a judgment in favor of respondent, and appellant, the successor in interest of Mrs. Van Alstine, has appealed.

Respondent contends, and the court below must have found, that inasmuch as Mrs. Van Alstine did not claim any interest in the fund allowed as compensation in the condemnation proceeding in her foreclosure proceeding, and have it there determined that her security was depreciated by the regrade, and take a decree directing that the award should be held subject to the lien of her mortgage, and having sold the Seattle property without reference to the award, she or her successor cannot now claim any interest therein; that it belongs to respondent, the present owner of the equity of redemption, who has not assumed the debt; and that she must satisfy her deficiency out of the property of the original mortgagor, L. M. Gray.

We think it will not be seriously contended that Mrs. Van Alstine might have made the city a party to her foreclosure proceeding, and that if she had she could have had a decree awarding the amount paid in condemnation, less the assessment for benefits applied upon the mortgage indebtedness. The public work having impaired the security, the mortgagee is in equity entitled to recoup his loss out of the award. A mortgagee is entitled to have his debt paid in full. Lewis on Eminent Domain (3d Ed.) § 896; In re Seattle, 26 Wash. 602, 67 P. 250.

'The question as to the right to an award as between a mortgagee and the owner of the equity has arisen in several cases, and the rule seems to be well established that where a mortgage has been given upon property prior to the taking of a portion thereof by the city, if, upon a foreclosure and sale after the taking by the city, the amount...