Perkins v. La Varne, 23896.

• Decision Date: 06 January 1933
• Docket Number: 23896.
• Citation: 17 P.2d 857,171 Wash. 240
• Parties: PERKINS v. LA VARNE et ux.
• Court: Washington Supreme Court

17 P.2d 857

171 Wash. 240

PERKINS v. LA VARNE et ux.

No. 23896.

Supreme Court of Washington

January 6, 1933

Department 1.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Action by William D. Perkins against J. F. La Varne and others. Decree for plaintiff, and defendant named and wife appeal.

Decree reversed in part, and cause remanded, with directions.

C. S Goshert, of Seattle, for appellants.

Edward H. Chavelle, of Seattle, for respondent.

PARKER J.

This is an appeal by the defendants La Varne and wife, challenging the correctness of a mortgage decree of foreclosure rendered by the superior court for King county, in so far as it adjudicates that they do not have the right of occupancy of the mortgaged property as their homestead during the statutory period of redemption following the foreclosure sale. The controlling facts are not in dispute.

On March 18, 1929, Miss Palmer, being the owner of the residence property in question, executed and delivered to Perkins a mortgage thereon to secure an indebtedness then owing by her to him. Thereafter Miss Palmer conveyed the property to one Hardman, who thereafter entered into an executory contract for its sale to La Varne and wife, by the terms of which contract La Varne and wife agreed to assume the payment of the mortgage indebtedness owing to Perkins. Since the making of that contract, La Varne and wife have occupied the property as their home, as was their right under that contract, and have made due claim to the same as their homestead by declaration and record thereof in the manner prescribed by our Homestead Law (Rem. Comp. Stat. § 528 et seq., as amended).

On May 1, 1931, the whole of the unpaid portion of the mortgage indebtedness becoming due and payable, Perkins commenced this action seeking personal judgment therefor against Miss Palmer; also seeking foreclosure of the mortgage and sale of the property and application of the proceeds thereof towards the satisfaction of the mortgage indebtedness and immediate possession of the property by the purchaser at the foreclosure sale thereof; also seeking foreclosure of the mortgage as against La Varne and wife, but not seeking any personal money judgment against La Varne and wife under their contract assumption of the mortgage indebtedness by their contract with Hardman, the grantee of Miss Palmer. La Varne and wife responded by answer, putting Perkins to proof as to his right of foreclosure. It also became and issue between La Varne and wife and Perkins as to his right to have it adjudicated in the foreclosure decree that the purchaser at the prospective foreclosure sale should have the right of immediate possession of the property upon the making of such sale; La Varne and wife claiming in any event to have the right of possession and occupancy of the property as their homestead during the statutory period of redemption. Following the...