Schwabacher Bros. & Co. v. Van Reypen

• Citation: 6 Wash. 154,32 P. 1061
• Court: United States State Supreme Court of Washington
• Decision Date: 25 March 1893
• Parties: SCHWABACHER BROS. & CO. v. VAN REYPEN ET AL.

32 P. 1061

6 Wash. 154

SCHWABACHER BROS. & CO. v. VAN REYPEN ET AL.

Supreme Court of Washington

March 25, 1893

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by Schwabacher Bros. & Co. against H. G. Van Reypen and Carmi Dibble to foreclose a mortgage executed by Van Reypen on land subsequently sold to Dibble. From a judgment in defendants' favor, plaintiff appeals. Reversed.

Metcalfe Little & Jurey, for appellant.

Black &amp Leaming, for respondents.

HOYT J.

The rulings of this court in the cases of Sadler v Niesz, 31 P. 630, and Nuhn v. Miller, Id. 1031 are decisive of this case, unless we find from the proofs that the appellant had notice of the fact that the respondent Van Reypen was a married man at the time the mortgage was made, or had such knowledge upon the subject as would lead a man of ordinary prudence to further investigation in regard to the matter. We have examined the proofs offered by the respective parties upon this question, and are satisfied that the fact of such knowledge or information is not established thereby. To begin with, there is the solemn declaration in the mortgage itself that the maker thereof was an unmarried man. And there is little or no testimony that was actually given at the trial to show any knowledge on the part of the appellant that he was in fact married. Such respondent himself testified, in a general way, that it must have been understood that he was married, but he failed to enter into details, or give any particular conversations when, or by means of which, such knowledge was brought home to the appellant. This testimony on the part of such respondent is all there is in record tending to show such knowledge, excepting the fact that there is an admission that a man by the name of Jones would testify that at one time Mr. Goldsmith, then acting for the appellant as its agent, was informed that such marriage existed; but in opposition to this admission is the further one that said Goldsmith would, if present, testify that he never received such information, and that he in no way understood, or had any reason to believe, that such respondent was a married man. Respondents have in their brief attempted to make something out of the admission contained in the record that, in the final proof submitted at the time the title to the land covered by the mortgage was obtained, said Van Reypen stated that he was a married man, but we are...