Port v. Parfit

• Decision Date: 07 June 1892
• Parties: PORT v. PARFIT ET AL.
• Court: Washington Supreme Court

30 P. 328

4 Wash. 369

PORT v. PARFIT ET AL.

Supreme Court of Washington

June 7, 1892

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Action by Andrew J. Port against John, Hattie, and Edward Parfit and others to foreclose a mortgage. Judgment for plaintiff, and defendants Parfit appeal. Affirmed.

Garrett & Corliss, for appellants.

Frank P. Lewis and Burt J. Humphrey, for respondent.

ANDERS C.J.

On the 28th day of May, 1890, at Seattle, Wash., appellants Edward Parfit and John Parfit made and delivered to Isaac M. Dunn and George D. Corbin their promissory note for $1,136, due six months from date, with interest at the rate of 10 per cent. per annum from date until paid, which note contained the stipulation for the payment of $50 as attorneys' fees in case of suit. To secure the payment of this note the said Edward and John Parfit, together with Hattie Parfit, wife of the said John Parfit, on the same day duly executed and delivered to said Dunn & Corbin a mortgage on an undivided one-third part of certain lands described in the complaint herein. Thereafter, and on June 12, 1890, the said note and mortgage, and the moneys due and to become due thereon, and secured thereby, were, by an instrument in writing, duly assigned by the said Dunn & Corbin to the respondent, Andrew J. Port. Both the mortgage and the assignment were duly recorded in the office of the county auditor of King county, in which the premises therein described are situated. The note and mortgage not having been paid according to the terms and conditions therein specified the respondent, Port, brought this action to foreclose the mortgage, and subject the mortgaged premises to the payment of the amount due. It is alleged in the complaint, and not denied in the answer, that on or about the 11th day of July 1890, the defendants Irving H. Vail and Carrie E. Vail, his wife, being the owners of the remaining two thirds of said described lands, and the said Edward Parfit and John Parfit and Hattie L. Parfit, his wife, being the owners of the third so mortgaged by them, made partition of said described premises, whereby the north two thirds of said described lands were set off and awarded to said Vails, as and for their share therein, and the south one third of said described lands was set off and awarded to said Parfits, as and for their share therein, and executed and delivered, each to the other, deeds for their respective specific shares as agreed upon between said parties thereto. The complaint also contains the further allegation that plaintiff, believing said partition and division to be fair, equitable, and just, is willing and hereby consents to hold and retain his mortgage and lien thereof upon the south one third of said described property, subject to the ratification and confirmation of the court in this action; and also a demand for judgment that the said undivided one third, or, in lieu thereof, the south one third, of said premises be sold, and the proceeds applied to the payment of the amount due on the note and mortgage, the attorney's fee stipulated for, and costs. The defendants Irving H. and Carrie E. Vail, by their answer, admit each and every allegation of the complaint, and allege that, at the time of the partition of the premises, it was agreed between them and the Parfits that the mortgage held by Port should, as between the parties to the partition, be transferred to the south third of said described tract, and that the north two thirds should be free from the lien of the mortgage; and demanded judgment that the whole of said mortgage be transferred to and foreclosed on the south third belonging to said Parfit, instead of the undivided one third of the whole tract. A default was entered against Corbin, and Hattie Parfit by stipulation withdrew her answer, and, by consent, a default was also entered against her. The defendant Dunn in his answer waived all right to redeem the premises mentioned in the complaint, and disclaimed all right, title, and interest in and to said Parfit note and mortgage. The defendants John and Edward Parfit answered separately, but did not deny, or attempt to deny, any material allegation of the complaint, nor state any new matter constituting a defense or counterclaim, as required by statute. The only statement in their answer bearing any semblance to a defense is an averment that they are not willing and do not consent that the plaintiff should retain his said mortgage, and the lien thereof, upon any greater interest in the south one third of the land described in said complaint than upon the undivided one-third interest in said south one third of said land. That allegation may be deemed a protest against what the defendants may have considered a probable or possible conclusion of the court, but can hardly be considered as controverting any averment of the complaint. It was therefore no defense to the action, and might well have been disregarded by the plaintiff. The plaintiff, however, filed a reply in which he alleged that the defendants John, Hattie, and E. Parfit, on December 17, 1890, requested him in writing to hold said mortgage on the south one third of the premises described in said mortgage, and to release the apparent lien thereof upon the north two thirds thereof; that said defendants are estopped by said partition, and the said request to plaintiff, from denying the same; and that it is for the best interest of all the parties to this action that the description of the...