Malm v. Griffith

• Decision Date: 15 December 1919
• Docket Number: 15497.
• Citation: 186 P. 647,109 Wash. 30
• Parties: MALM v. GRIFFITH.
• Court: Washington Supreme Court

186 P. 647

109 Wash. 30

MALM v. GRIFFITH.

No. 15497.

Supreme Court of Washington

December 15, 1919

Department 1.

Appeal from Superior Court, King County; Everett Smith, Judge.

Action by John G. Malm against Elizabeth Griffith. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Tom Aldersen, of Seattle, for appellant.

Dan Earle, of Seattle, for respondent.

PARKER J.

The plaintiff, John G. Malm, commenced this action in the superior court for King county, seeking the quieting of his title to a lot in the city of Seattle, as against the claim of the defendant, Elizabeth Griffith, made under a mortgage thereon given to her by Edward C. Haydon and wife, while the owners of the lot, who thereafter conveyed it to Malm at a time when he had no notice, either actual or constructive, of the existence of the mortgage; it not being recorded until after the execution of the deed given to him. The cause was disposed of in the superior court upon Malm's demurrer to Mrs. Griffith's amended affirmative answer and cross-complaint. The court having sustained the demurrer, and Mrs. Griffith electing to stand upon her amended affirmative answer and cross-complaint judgment was rendered against her, quieting title in Malm as prayed for. From this disposition of the cause Mrs. Griffith has appealed to this court.

The facts as alleged in Mrs. Griffith's affirmative answer and cross-complaint may be summarized as follows:

On December 1, 1909, the Haydons executed and delivered to Mrs Griffith their promissory note evidencing an indebtedness due from them to her of $3,000. To secure this indebtedness they at the same time, executed and delivered to Mrs. Griffith a mortgage upon the lot in question, they then being the owners thereof in fee simple. One-half of the principal and a considerable portion of the interest of the indebtedness evidenced by this note and mortgage remains unpaid. On September 25, 1913, the Haydons executed and delivered to the Fremont State Bank their promissory note evidencing an indebtedness from them to it of $1,000. To secure this indebtedness they at the same time executed and delivered to the bank a mortgage upon the lot in question. On March 27 1917, the bank duly assigned and transferred this note and mortgage to Malm. On May 31, 1917, for the purpose of avoiding foreclosure of this mortgage, the Haydons executed and delivered to Malm a conveyance of the lot in the form of a quitclaim deed. This conveyance we assume, as counsel on both sides do, was intended to be in satisfaction of the mortgage indebtedness, and that Mrs. Griffith gave no other consideration for the conveyance, though the allegations of the affirmative answer and cross-complaint are not clear upon this question. At the time of receiving this deed, the mortgage which had been given by the Haydons to Mrs. Griffith had not been recorded in the auditor's office of King county, but was thereafter recorded therein on January 7, 1918. It is alleged in the amended affirmative answer and cross-complaint that the quitclaim deed was given---- 'under and by virtue of the terms of a certain agreement providing for the redemption from said mortgage by the said Edward C. Haydon and Mary Alice Haydon, his wife, the more specific and definite terms of which said agreement are unknown to the defendant.'

It is further alleged in the amended affirmative answer and cross-complaint:

'That the defendant had no knowledge of the existence of said mortgage made by said Edward C. Haydon and wife, to said Fremont State Bank and had no knowledge of its assignment thereof to the plaintiff and had no knowledge of the contract in relation to the foreclosure of said mortgage, and no knowledge of the existence or delivery of said quitclaim deed prior to the month of January, 1918; that when the defendant learned of the existence of said deed, and the facts in relation to the mortgage of said Fremont State Bank and the assignment thereof to the plaintiff, the defendant immediately endeavored to ascertain from the plaintiff the amount due the plaintiff upon his said mortgage and offered to tender to the plaintiff all moneys due to the said plaintiff by reason of said mortgage; that the plaintiff refused to disclose to the defendant the amount due to the plaintiff, and that the defendant was and is unable to tender to the plaintiff by reason of said fact the amount of money due the plaintiff under said mortgage; that the defendant is able, ready, and willing to pay into court for the use and benefit of the said plaintiff all sums of money due under and by virtue of said note and mortgage, but that the said plaintiff refuses to accept any money from the defendant and claims to own said property.'

It is contended in behalf of the appellant, Mrs Griffith, that the respondent, Malm, having taken the quitclaim deed from the Haydons, whether taken as security or in payment of a prior existing mortgage debt due to him from them, he did not thereby become a bona fide purchaser of the lot for value as against the right of Mrs. Griffith to redeem the lot from the claim of Malm made under his mortgage and quitclaim deed, executed by the Haydons. We feel constrained to hold that this contention is well grounded under the facts as alleged in Mrs. Griffith's amended answer and cross-complaint. It seems to us that the respondent is in no better position than he would have been had he, at the time of taking the quitclaim deed to the lot from the Haydons, been the purchaser thereof at execution sale held under a court decree foreclosing his mortgage as against the Haydons. Under such a sale Mrs. Griffith would have been entitled to redeem within one year thereafter (...