Norfor v. Busby

• Decision Date: 14 June 1898
• Citation: 19 Wash. 450,53 P. 715
• Parties: NORFOR v. BUSBY ET AL.
• Court: Washington Supreme Court

53 P. 715

19 Wash. 450

NORFOR v. BUSBY ET AL.

Supreme Court of Washington

June 14, 1898

Appeal from superior court, Whitman county; William McDonald, Judge.

Foreclosure by William Norfor against F. M. Busby and others. From a refusal to appoint a receiver of mortgaged property on petition therefor, plaintiff appeals. Affirmed.

Winfree & McCroskey, for appellant.

Wyman &amp Neill and W. H. Harvey, for respondents.

REAVIS J.

On the 7th of December, 1897, appellant commenced an action to foreclose a mortgage executed by respondent F. M. Busby, a single man, who afterwards intermarried with the respondent Annie E. Busby, his wife. The debt due was $13,810.44, not including costs and disbursements, and the mortgage security was upon farm lands in Whitman county. All of the other defendants named in the action, except respondents F. M Busby and wife, defaulted; and respondents interposed a general demurrer to the complaint, which was pending when an application for a receiver was heard. After the complaint was filed, appellant made his petition in the cause, praying for the appointment of a receiver to take possession of the mortgaged premises pending the foreclosure proceedings, and that the rents and profits accruing before sale be retained by the receiver as security for any deficiency on sale of the mortgaged premises to satisfy the debt. The ground stated in the petition for the appointment of a receiver was that the mortgaged property was insufficient to discharge the debt. The petition stated facts which showed the insufficiency of the mortgaged property to satisfy the debt. A number of affidavits were also presented to the superior court in support of the allegations contained in the petition. An objection is made to their consideration here by respondents because they were not certified in the statement of facts to this court; and, while the consideration of such affidavits is not material in the decision here, the respondents' objection against their consideration must prevail, we having frequently determined that such papers are not part of the record unless made so by the certificate.

Respondents demurred to the petition for the appointment of a receiver, and the demurrer was sustained by the superior court.

The demurrer may be regarded as an objection to the appointment of the receiver upon the facts stated in the petition. The error assigned here is the refusal of the superior court to appoint a receiver on the showing made in the petition. Appellant maintains that section 326, 2 Hill's Code, is in force: "A receiver may be appointed by the court in the following cases: *** (4) In an action by a mortgagee for the foreclosure of a mortgage and the sale of the mortgaged property, *** when such property is insufficient to discharge the debt, to secure the application of the rents and profits accruing, before a sale can be had;" and thus that a case was presented falling directly within the terms of the statute, and there is not presented in the controversy here any question upon the discretion of the court. This statute was enacted in 1854 (Laws 1854, p. 162), and is found in Code 1881, § 193. At that time there was no statutory declaration in Washington territory changing the common-law mortgage, and at common law, where the mortgage vested the fee in the mortgagee, and he was entitled to the possession upon default in any of the terms of the mortgage deed, the statute was consistent with the nature of such mortgage. But the territorial legislature of 1869 (Sess. Laws 1869, p. 130, § 496) provided that "a mortgage of real property shall not be deemed a conveyance, so as to enable the owner of the mortgage to recover possession of the real property, without a foreclosure and sale according to law"; and since such enactment a mortgage executed in this state, whatever its terms, has been merely a security incident to and for the payment of the principal debt. The statute is also expressive of the public policy of the state vesting the right of the possession in the mortgagor absolutely until a decree and sale. A similar statute has long existed in the state of Oregon. Gen. Laws Or. 1845-64, p. 228, § 323.

The force and effect of such legislation is fully discussed by the supreme court of the United States in the case of Teal v. Walker, 111 U.S. 242, 4 S.Ct. 420. The court said: "This provision *** gives effect to the view of the...