De Voe v. Runkle

• Citation: 74 P. 836,33 Wash. 604
• Parties: DE VOE v. RUNKLE et al. [*]
• Decision Date: 29 December 1903
• Court: United States State Supreme Court of Washington

74 P. 836

33 Wash. 604

DE VOE v. RUNKLE et al. ^[*]

Supreme Court of Washington

December 29, 1903

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action to foreclose a mortgage and for other relief by Archibald C De Voe against Eliza R. Runkle and others. From the decree rendered granting the prayer of the complaint, defendant Eliza R. Runkle appeals. Modified.

Tucker & Hyland, for appellant.

Charles R. Crouch, for respondent.

HADLEY J.

On the 17th day of June, 1901, the appellant, Eliza R. Runkle obtained a judgment in King county, Wash., against Arthur De Voe for the sum of $455 and costs. Her judgment became a lien upon the real estate of said De Voe in King county on and after said date. Said De Voe was at that time the holder of the legal title of record to lot 4, block 13 in the D. T. Denny replat of North Seattle. He was also the holder of such title on the 21st day of December, 1891, at which time he executed a mortgage upon said lot to Eugene E De Voe of Chautauqua county, N.Y. The mortgage was given to secure the payment of $1,000 according to the terms of a promissory note bearing even date with the mortgage and maturing three years after date, with interest at 8 per cent. per annum, payable semiannually. Interest was paid upon the note up to December 20, 1892, and no subsequent payments of principal or interest were made. The note matured by its terms December 21, 1894, and the statute of limitations, unless in some manner arrested, had run December 21, 1900. On the 4th day of April, 1902, the said Arthur De Voe and wife conveyed the said lot by quitclaim deed to the respondent, Archibald C. De Voe. Appellant's judgment was unsatisfied at that time, and was still a lien upon said lot. The controversy here is whether the lien was subject or superior to that of the mortgage aforesaid. Archibald C. De Voe is the son of Arthur De Voe, and about December 20, 1901, during the minority of the former, it is alleged that he was induced by the latter to invest funds he had received from his mother's estate in the lot above described. It is averred that the manner of the investment was as follows: Archibald C. De Voe was to purchase the mortgage held against the lot by said Eugene E. De Voe, and Arthur De Voe was to convey an unincumbered title. A number of unsatisfied judgments existed against Arthur De Voe at the time, including that of appellant, of which his son, the respondent, says he did not know. On or about January 3, 1902, the son sent the sum of $500 to the eastern mortgagee to apply upon the mortgage, and on or about April 2, 1902, it is alleged the further sum of $800 was paid by him in the same manner. On March 6, 1902, the mortgagee acknowledged a release and satisfaction of the mortgage, and this was filed for record in the auditor's office of King county April 7, 1902, at the request of respondent. On substantially the above statement of facts Archibald C. De Voe, the respondent, instituted this action, making Arthur De Voe and wife, Eugene E. De Voe, the mortgagee of the aforesaid mortgage, and the judgment creditors of Arthur De Voe, including appellant, parties defendant. The complaint alleges insolvency of Arthur De Voe, and asks that the aforesaid release of mortgage shall be set aside, and that the mortgagee shall be required to execute an assignment thereof to Archibald C. De Voe. Judgment is also demanded against Arthur De Voe and wife in the sum of $1,300, together with a decree foreclosing the mortgage.

The prayer concludes with the demand that the judgment creditors shall be barred and foreclosed of all rights in said property. Appellant demurred to the complaint on several grounds, and among others that the action was not commenced within the time allowed by law, and that the complaint shows upon its face that the statute of limitations had run against the mortgage prior to the commencement of the action. The demurrer was overruled. Appellant then answered the complaint, putting in issue material allegations thereof, and among other things pleading affirmatively the statute of limitations against the mortgage. A trial was had before the court without a jury, and a judgment was entered effectually granting the prayer of the complaint. This is an appeal from the judgment by the defendant Eliza R. Runkle.

A large number of alleged errors are assigned, and among others that the court erred in overruling the demurrer to the complaint on the ground that the action was not brought within the time allowed by law. This question was also raised by objections and motions at the trial, the overruling of which is also assigned as error. We think this is the only question necessary to be discussed in the case and we shall consider it as presented not alone upon demurrer, but upon the whole record including the evidence. There is nothing in the record which shows that the statute of limitations did not uninterruptedly run against the mortgage, and it therefore expired December 21, 1900. Arthur De Voe was still the owner of the lot, and remained such until June 17, 1901, when appellant recovered her judgment against him. Respondent had no interest in the mortgage at that time, and under the allegations of his complaint he acquired no interest until about January 3, 1902, when he made a payment of $500. About April 2, 1902, he made a further payment of $800. Meantime he attained his majority on March 4, 1902. The first payment was made when he was within about two months of having reached his majority, and the last one about one month after he was 21 years of age. As to third parties, he certainly was required to take notice of existing conditions when he made his last payment, and when he accepted the conveyance of the land after his majority. In any event, we know of no rule that will permit a minor to invest in a mortgage that is outlawed at the time, and afterwards claim that the lien thereof shall prevail as against other lienholders for reasons alone growing out of his minority. We do not understand that this is seriously contended in this case, but the fact of minority is alleged in the complaint with some emphasis, and it is perhaps pertinent in support of the issue against respondent's father in order to show the confidential relation between the two and reliance of the son upon the statements of the father that the son would acquire a good title. The only question therefore is, can appellant, as the holder of a judgment lien against the mortgaged land, plead the statute of limitations against the mortgage? We have held that a subsequent grantee of the mortgagor may plead the statute, and that the absence of the mortgagor from the state will not suspend the running of the statute as to the mortgage executed by him when he has parted with all his...