Northwestern & Pacific Hypotheek Bank v. Ridpath

• Decision Date: 15 September 1902
• Citation: 29 Wash. 687,70 P. 139
• Court: Washington Supreme Court
• Parties: NORTHWESTERN & PACIFIC HYPOTHEEK BANK v. RIDPATH et al.

70 P. 139

29 Wash. 687

NORTHWESTERN & PACIFIC HYPOTHEEK BANK v. RIDPATH et al.

Supreme Court of Washington

September 15, 1902

Appeal from superior court, Spokane county; Geo. W. Belt, Judge.

Action by the Northwestern & Pacific Hypotheek Bank against William M. Ridpath, as administrator de bonis non with the wills annexed of the community estate of A. M. and Jennie F Cannon, deceased, and others. From a decree for plaintiff defendant William M. Ridpath appeals. Affirmed.

Judson & Geraghty, for appellant.

Post Avery & Higgins, for respondent.

WHITE J.

This action was brought for the purpose of quieting title to certain property, being some 250 lots in Cannon's addition in the city of Spokane. There was service of process upon each of the defendants, and default duly entered against each of them except William M. Ridpath, as administrator de bonis non with the wills annexed of the community estate of Anthony M. Cannon and Jennie F. Cannon, deceased. Mr. Ridpath, as administrator of the community estate, filed an answer herein, and he alone, and in that capacity alone, appeals from the decree in favor of the plaintiff. He did not answer or appeal as administrator of the estate of A. M. Cannon, nor as administrator of the estate of Jennie F. Cannon, nor are any of the other defendants appellants herein.

The complaint contains the usual allegations in an action of this character. The answer of Ridpath, as administrator of the community estate of both Cannons, alleges by way of cross-complaint, in brief, that plaintiff's title is based on decrees of foreclosure of three several mortgages given to the plaintiff by A. M. and Jennie F. Cannon, his wife; that these actions were commenced after the death of Jennie F. Cannon, but before the death of A. M. Cannon; that in those actions H. E. Houghton, as executor of the last will and testament of the said Jennie F. Cannon, and A. M. Cannon and others, were named as parties defendant; that at the time of the commencement of said action A. M. Cannon was residing in the city of New York, and that he continuously lived and resided in said city from on or about January 10, 1895, until April 6, 1895, when he died there, and that neither personal service of summons nor service by publication was made upon him, and he did not appear in said actions; that plaintiff knew at the time of entering decrees of foreclosure therein that A. M. Cannon had changed his place of residence from the county and city of Spokane to the city of New York, and that no summons or process of any kind had ever been served upon him; that, notwithstanding such knowledge, it prepared the decrees, and had it recited and stated therein that Cannon was personally served with process in Spokane county, and caused execution to be issued, and the sheriff to sell the said property thereunder, and give plaintiff sheriff's deeds therefor, it being the accepted bidder upon the sales; that the defendant was misled and deceived by the recitals in the decrees, and did not know of the failure to serve process upon Cannon until the commencement of this action; that Jennie F. Cannon died September 8, 1893; that her will was probated October 10, 1893, and that H. E. Houghton and J. W. Binkley were the executors named in said will, and duly qualified as such; that on February 23, 1894, Binkley resigned as executor, and his resignation was accepted by the court, and Houghton continued to act as such executor until September 29, 1897, when he died; that A. M. Cannon died April 6, 1895, and on May 24, 1895, his will was admitted to probate in Spokane county, and H. E. Houghton was duly appointed executor thereof, qualified, and continued so to act until his death; that thereupon Ridpath was appointed administrator, etc.; that the three several foreclosure actions were commenced in January, 1895, and decrees entered therein in March, 1895; that there are claims against said community estate unpaid, and there is not sufficient personal property to pay the same. The prayer of the answer is that the judgments and sheriff's deeds aforesaid be canceled and set aside. It is not specifically alleged in said answer what right, title, or interest Ridpath, as administrator of the community estate, claims to have in the property in question.

The reply of plaintiff admits the death of Jennie F. Cannon, the probating of her will, the appointment and qualifications of the executors therein, the resignation of Binkley as executor, the continuance of Houghton as executor, his death, the appointment of Ridpath as administrator, the death of A. M. Cannon, the probating of his will, the appointment and qualification of Houghton as executor, the foreclosure of the three several mortgages above mentioned, and the execution of sheriff's deeds to it; and denies each and every other allegation in the answer and cross-complaint contained. The reply further states that at the time of the commencement of said actions H. E. Houghton was the duly appointed, qualified, and acting executor of the estate of Jennie F. Cannon, and, with the knowledge, consent, and approval of said A. M. Cannon, was administering upon the community estate of both the Cannons, and continued to so administer from the time of his appointment until his death, and that said Houghton, in his official capacity, and said Cannon, and each and every other defendant in each of said foreclosure actions, were duly served with summons and complaint in January, 1895, and judgment was duly and properly rendered against each and all of them in each of said actions in March, 1895; that the indebtedness sued upon was the community indebtedness of both of said Cannons, and at the time of the commencement of said actions, and at the time of taking judgments therein, and at all times referred to, said Houghton was in the confidence of said Cannon, knew all of the facts concerning his residence and abiding place and the method of serving process in said actions, the taking of judgments, sale of the property, and the various steps taken by the plaintiff thereafter concerning the same; that the plaintiff used every effort and the utmost good faith in serving the summons and complaint in each of said actions on A. M. Cannon, and has been guilty of no fraud, concealment, or misrepresentation concerning the same; that the plaintiff purchased all of the property named in each of said mortgages under said decrees for the full amount of said judgments and mortgages, in good faith, and in the belief that it was acquiring perfect, complete, and absolute title to all of said property, and canceled and released of record all of said judgments in like good faith and upon such consideration, and immediately took possession thereof, and since said time has expended large sums of money in improvements thereof and therefor, and in the payment of taxes thereon, and in the construction of a street railroad thereto for the purpose of making said property accessible and making said lots salable, and has sold a large number of said lots, giving warranty deeds therefor, and the purchasers thereof have built residences and homes and made valuable and lasting improvements thereon,--all of which has been done in perfect good faith on the part of the plaintiff and its grantees, and without objection, disapproval, or notice of any claim whatsoever from or by any of the various executors or administrators of the Cannons' estates, or any of the heirs thereof, or devisees or legatees; that in this action all of the heirs, devisees, and legatees of said estates have been made parties defendant, and summons and complaint have been duly served upon them, and none of them have appeared in any manner, although time therefor has fully expired, and claim of default has been entered against each and every of them.

The mortgages referred to are as follows: One dated November 24 1891, from A. M. Cannon and Jennie F. Cannon, his wife, to the plaintiff, amount $50,000, mortgaging a part of the property described in the complaint; one dated April 29, 1893, from A. M. Cannon and Jennie F. Cannon, his wife, to the plaintiff, amount $30,000, mortgaging another part of the property described in the complaint; one dated May 27, 1891, from William C. Stainsby and Ralph L. Clarke and wife to the plaintiff, amount $50,000, mortgaging the remainder of the property described in the complaint. Stainsby and Clarke deeded the property described in the mortgage to A. M. Cannon May 27, 1891, and Cannon therein assumed the said mortgage. The plaintiff commenced three several actions to foreclose these mortgages in January, 1895. It is admitted by the defendant that the plaintiff loaned the amount of money mentioned in these mortgages, and that said mortgages were valid. Summons and complaint were served on Houghton and Cannon in these three several cases as follows: In one case on January 10, 1895, in one case on January 12, 1895, in the other on January 23, 1895. The decrees in these several cases were all signed and filed on different days in the month of March, 1895. Executions were issued thereon, placed in the hands of the sheriff, notice given as required by law, and sales made thereunder by the sheriff to the plaintiff for the full amount of the mortgage and judgment in each case, and the judgments satisfied of record. Said sales took place in May, 1895, and were thereafter, and in June, 1895, duly confirmed by order of the court, and thereafter, and in June, 1896, sheriff's deeds in each case were given to the plaintiff, no redemption having been made. The plaintiff took possession of all of the property in question immediately upon said sales being made in May, 1895, and has remained in possession thereof ever since, and has paid the general...