Tallyn v. Cowden

• Decision Date: 28 August 1930
• Docket Number: 22350.
• Citation: Tallyn v. Cowden, 158 Wash. 335, 290 P. 1005 (Wash. 1930)
• Court: Washington Supreme Court
• Parties: TALLYN v. COWDEN et al.

290 P. 1005

158 Wash. 335

TALLYN v. COWDEN et al.

No. 22350.

Supreme Court of Washington

August 28, 1930

Department 1.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Action by N. O. Tallyn against J. B. Karshner and Hattie M Karshner, husband and wife, and others. From an adverse decree, the named defendants appeal.

Affirmed.

W. J Murphy and T. H. McKay, both of Aberdeen, for appellants.

Andrew J. Balliet, of Seattle, for respondent.

TOLMAN, J.

This is an action to foreclose a trust deed conveying certain real property as security for the payment of a promissory note therein described. From a decree of foreclosure, as prayed for, the defendants Karshner have appealed.

It appears without dispute that appellant Karshner in January 1926, began an action in the superior court for Snohomish county against the defendants Cowden upon an indebtedness aggregating some $6,000, and in that action sought and obtained a writ of attachment which was levied upon certain real property in that county then standing of record in the name of the defendants Cowden; notice of lis pendens being duly filed.

The Cowdens were nonresidents of the state, and the service of summons by publication was duly commenced. Thereafter, the Cowdens appeared in the action and caused it to be removed to the proper federal district court. Such proceedings were there had as resulted in a judgment against the Cowdens and in favor of Karshner, and execution was issued on the judgment, and the attached real property was duly sold by the United States Marshal thereunder. Karshner became the purchaser of the property at the execution sale. The sale was confirmed, and in due time a marshal's deed covering the property was issued to Karshner.

After the beginning of the action and the filing of the notice of lis pendens and on March 9, 1926, there was filed for record in Snohomish county the trust deed here sued upon, which deed was duly executed and delivered by the Cowdens on September 10, 1923, long prior to the levying of the attachment, but of which, of course, appellants had no notice at any time prior to it being filed for record.

Some contention is made that this trust deed was not based upon a valuable consideration and was in fraud of Cowden's creditors, but we may say in passing that the evidence seems to us to be conclusive in support of the findings of the trial court that it was based upon an actual loan of $2,500, advanced at the time the deed was executed and delivered.

This action was commenced in May, 1928, and the Karshners were made parties by reason of the marshal's deed to them. The complaint alleged that they claimed some interest in the premises, but that their right, title, or interest, if any, was subject and junior to the lien of the trust deed.

A minor question raised is based upon the description of the property contained in the trust deed. The property lies in what appears to have been platted as 'Pinehurst, Division 'C,' in Snohomish county,' and is so described in the proceedings through which appellants claim title. The trust deed, however, omits the words 'Division 'C" and describes the property conveyed to secure the loan as being 'All in Pinehurst, Snohomish County.' There is no allegation or suggestion that the trust deed does not cover the property which appellants claim, so far as it is there included. In fact, the defenses offered are all wholly inconsistent with that idea. The decree of foreclosure follows the true description, and the court finds, as a fact, that the trust deed was a first lien upon the lots and blocks therein named in Pinehurst, Division 'C.' We see no reason why, if the evidence warranted it (and there is no claim that it did not), all interested parties being before the court, an immaterial defect in description should not be so cured.

The principal argument here is devoted to the question of the effect of the filing of the notice of lis pendens and the withholding from the record of the trust deed until after the notice of lis pendens was filed.

Our statute, section 243, Rem. Comp. Stat., so far as now material, reads: '* * * From the time of the filing only shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby, and every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were a party to the action.'

Appellants contend that the language of the statute plainly makes the respondent a subsequent incumbrancer because the trust deed was filed subsequently to the filing of the notice of lis pendens, and cites Munger v. T. J. Beard & Bro., 79 Neb. 764, 113 N.W. 214, 126 Am. St. Rep. 688, and Ayrault v. Murphy, 54 N.Y. 203, as sustaining that construction of the statute.

If that one particular clause of the statute be...