Rogers v. Minneapolis Threshing Mach. Co.

• Decision Date: 09 December 1907
• Citation: 48 Wash. 19,92 P. 774
• Court: Washington Supreme Court
• Parties: ROGERS v. MINNEAPOLIS THRESHING MACH. CO. RUSSELL & CO. v. SAME.

92 P. 774

48 Wash. 19

ROGERS v. MINNEAPOLIS THRESHING MACH. CO.

RUSSELL & CO. v. SAME.

Supreme Court of Washington

December 9, 1907

Appeal from Superior Court, Douglas County; R. S. Steiner, Judge.

Actions by M. J. Rogers against Lewis E. Badger and others, and by Russell & Co. against the same defendants. The actions were consolidated. From a judgment giving priority to other mortgages, the Minneapolis Threshing Machine Company appeals. Affirmed.

J. D Campbell and J. B. Campbell, for appellant.

Danson & Williams, for respondent Russell & Co.

DUNBAR J.

The undisputed facts in this case are briefly as follows: Lewis E. Badger filed on his government homestead in March, 1898. He was married when he filed, but his wife died in October 1901. He married Maggie V. Badger in January 1903, and lived on his government homestead with her until he had made final proof on said homestead May 1, 1903. He and his wife mortgaged said homestead to M. J. Rogers respondent, May 4, 1903. He, his wife not joining, mortgaged said homestead to Russell & Co., respondent, on June 11, 1903. Patent to said homestead issued to Lewis E. Badger June 21, 1904. Lewis E. Badger, his wife joining with him, mortgaged said homestead to appellant the Minneapolis Threshing Machine Company on the 31st day of July, 1905. This was an action to foreclose the aforesaid mortgages, and the court found the mortgages, respectively, had been properly executed, and the amount due on them, and that they were all entitled to foreclosure; but found that the mortgage to M. J. Rogers was a first lien on the property, that the mortgage to Russell & Co. was a second lien on the property, and that the mortgage to the appellant Minneapolis Threshing Machine Company, a corporation, should be satisfied out of the property subject to the aforesaid mortgages.

The appellant makes two contentions: First, that the mortgage to M. J. Rogers is not a valid lien on said land, because at the time that Lewis E. Badger and Maggie V. Badger executed the same the patent had not been issued, and title was still in the federal government, and they could not therefore make a valid mortgage on said land; second, that, as Lewis E. Badger was a married man at the time final proof was made, said land was the community property of himself and his wife, and, as the mortgage which Lewis E. Badger gave to Russell & Co. was not joined in by his wife, the same is void, and...