Packard v. Delfel

• Citation: 9 Wash. 562,38 P. 208
• Court: United States State Supreme Court of Washington
• Decision Date: 13 October 1894
• Parties: PACKARD ET AL. v. DELFEL ET AL.

38 P. 208

9 Wash. 562

PACKARD ET AL. v. DELFEL ET AL.

Supreme Court of Washington

October 13, 1894

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by M. W. Packard & Son against John Delfel, the Washington National Building, Loan & Investment Association, and others to reform a mortgage. Judgment was rendered for plaintiffs and defendant the Washington National Building, Loan &amp Investment Company appeals. Reversed.

Strudwick & Peters, for appellant.

W. R Andrews, for respondents.

DUNBAR C.J.

Respondents bring this suit to reform a mortgage, that it may cover, among others, lots 11, 12, and 13 in block 1. E. C. Ferguson's addition to Snohomish (the description of the block being omitted from the instrument, respondents contend, by the mutual mistake of its parties), and to foreclose the same upon one of these, viz. upon lot 11. It is contended, and is, we think, shown by the testimony, that on the 17th day of February, 1890, Aaron Parker and Lavina L. Parker, husband and wife, executed their promissory note to the respondents for $912, with interest. It came due in six months after its date. At the time of making this note, and with the intention of securing the payment of it, the Parkers executed to the respondents their mortgage upon certain real property in Snohomish county, and in the execution of this mortgage the mistake above mentioned was made. Afterwards, on July 26, 1890, Aaron Parker died, leaving a will by which he devised to his wife, Lavina Parker, all his estate, except a small legacy to each of the children, and made her sole executrix. Shortly after, Lavina Parker executed a bond for a deed to Julius Ross, the father of the defendant Lizzie Delfel, for the lot 11, which is the lot in controversy. About that time, Ross agreed with Mrs. Delfel and her husband to turn the property over to her, and the Delfels built a small house on it, and lived therein. In November, 1890, Mrs. Parker and the respondents had a settlement together of sundry matters, at which they charged her with items amounting in the aggregate to $2,731.35, and credited her with various items amounting to $2,870. In the debits was included respondents' note for $694.75, and among the credits was the item of $700, due, as then thought, from J. Ross, and a bond for a deed to the other two lots originally embraced in the mortgage for $1,800. Some time later in the same year the Delfels commenced the erection of a large building on this property, and, for the purpose of building it, made an application to borrow money of the Washington National Building, Loan & Investment Association. Application was made to respondents, that they (respondents) should release their first mortgage, and take one second to a mortgage that was proposed to be given to the appellants, the loan association having objected to the title as it then stood. This mortgage was executed, although no formal release was made.

Without...