Wilson v. Kirchan

Decision Date15 April 1927
Docket Number19972.
Citation255 P. 368,143 Wash. 342
PartiesWILSON v. KIRCHAN et ux.
CourtWashington Supreme Court

Appeal from Superior Court, Lincoln County; Sessions, Judge.

Action by George M. Wilson against Louis F. Kirchan and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Tolman Fullerton, and Parker, JJ., dissenting.

G. W Sommer, of Spokane, for appellants. Louis A. Dyar, of Wilbur for respondent.

ASKREN J.

The plaintiff brought this action to recover on a note for $3,000 and interest, executed in his favor by the defendants. The note was not due by its terms at the time the suit was brought, but at the time of its execution the defendants had executed a mortgage as security therefor, which provided among other things, that they would pay the taxes and assessments levied against the property, the interest as it became due, keep the buildings insured, and that, 'in case any taxes shall become delinquent and remain unpaid, or such insurance shall not be procured or interest as provided in said note shall become due and unpaid, then the whole of the principal and interest of said note, and the moneys secured thereby, shall immediately become due and payable, and this mortgage may be foreclosed for the whole of said moneys.'

Because of failure to pay the taxes and keep the insurance up as required by the terms of the mortgage, the plaintiff brought suit to declare the note due. He pleaded the note and mortgage, but expressly waived his rights of foreclosure. The trial court, after hearing, entered judgment in his favor, and the defendants appeal.

A single question is presented by the record: May the holder of a promissory note secured by a mortgage bring action thereon and accelerate the due date by terms of the mortgage, and at the same time waive his right to foreclosure of the security?

The courts are not harmonious upon the question, but what we conceive to be the cases supported by the better reasoning as well as the weight of authority answer the question in the affirmative.

The decisions upon this matter are based upon two opposed theories of the relationship between a note and the mortgage given to secure the debt. One line of authorities holds that the note and mortgage represent the contract between the parties; that they will be read together to determine what the agreement was; and that, if, when read together, it appears that the parties have contracted for acceleration of the debt, the amount of the note becomes due for all purposes. The other line holds that the note and mortgage are distinct instruments, and that the stipulation in the mortgages furnishes a remedy on the mortgage for foreclosure, and for that purpose only the note may be regarded as due.

Under our decisions we have committed ourselves to the doctrine that the note and mortgage, although separate instruments, are a single contract, and that reference will be made to both to determine its terms if they are not in conflict. United States Savings & Loan Association v. Cade, 15 Wash. 38, 45 P. 656; Bell v. Engvolsen, 64 Wash. 33, 116 P. 456; Lovell v. Musselman, 81 Wash. 477, 142 P. 1143; Rockwell v. Thompson, 124 Wash. 176, 213 P. 922.

Having adopted the same theory regarding the note and mortgage as those courts which declare the note due for all purposes, we see no reason why we should not follow the same rule as to the maturity of the note.

The annotated note to Winne v. Lahart, 34 A. L. R. 844, is as follows:

'It is held in a majority of the cases that an acceleration provision in a mortgage securing a note enters into and becomes a part of the note, so that the maturity of the note is advanced in like manner with the maturity of the mortgage, not only for the purpose of foreclosure, but for all purposes.'

The decision of the court in Durham v. Rasco, 30 N.M. 22, 227 P. 601, 34 A. L. R. 838, so clearly expresses the prevailing viewpoint and cites the leading cases that a portion of it may well be here set out:

'As we have previously suggested, according to its face and tenor, the second note had not matured at the time the suit was filed or at the time judgment was rendered in the justice court. To accelerate its maturity, the appellee relied upon the following provision contained in the chattel mortgage: 'If all the conditions herein expressed shall be complied with, this mortgage shall be void, but if the first party shall fail to pay any part of the indebtedness hereby secured when due, or shall fail to comply with the conditions herein expressed, or any of them, or if from any cause the holder thereof shall deem themselves insecure, then all the indebtedness hereby secured shall, at the option of the holders thereof, become due.'
'The authorities dealing with the effect of such a provision in a mortgage, securing a series of notes maturing at different times, are in hopeless conflict, as there may be found among them variant and divergent views. 8 C.J. p. 199; 3 R. C. L. § 436, p. 413. It is held by a very respectable array of courts that such a provision matures the then unmatured notes belonging to the series for the purpose of foreclosure and to exhaust the mortgage security only, and not for the purpose of securing a personal judgment; that the remedy of foreclosure alone is ripened upon such a default ( McClelland v. Bishop, 42 Ohio St. 113; American Nat. Bank v. American Wood Paper Co., 19 R.I. 149, 32 A. 305, 29 L. R. A. 103, 61 Am. St. Rep. 746; Owings v. McKenzie, 133 Mo. 323, 33 S.W. 802, 40 L. R. A. 154; Brinsmade v. Johnson, 192 Mo.App. 684, 179 S.W. 967; White v. Miller, 52 Minn. 367, 54 N.W. 736, 19 L. R. A. 673; Rasmussen v. Levin, 28 Colo. 448, 65 P. 94; Alwood v. Harrison, 66 Okl. 203, 171 P. 325; Birken v. Hickey, 42 S.D. 472, 176 N.W. 137; Morton v. Rock Bottom Coal Co., 91 W.Va. 169, 112 S.E. 369), but, by what we consider to be the better reasoned cases, it is held that the notes and mortgage form parts of one and the same transaction and agreement, and should be construed together, so that default in the payment of any
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7 cases
  • Metropolitan Mortg. & Securities Co., Inc. v. Becker
    • United States
    • Washington Court of Appeals
    • March 10, 1992
    ...155 (1986) (citing Seattle Sav. & Loan Ass'n v. Gardner J. Gwinn, Inc., 171 Wash. 695, 698, 19 P.2d 111 (1933); Wilson v. Kirchan, 143 Wash. 342, 346-47, 255 P. 368 (1927); see also G. Nelson & D. Whitman, Real Estate Finance Law § 8.1, at 594-95 (2d ed. 1985)). A deed of trust is similar t......
  • American Federal Sav. & Loan Ass'n of Tacoma v. McCaffrey
    • United States
    • Washington Supreme Court
    • November 13, 1986
    ...basis of an action. Seattle Sav. & Loan Ass'n v. Gardner J. Gwinn, Inc., 171 Wash. 695, 698, 19 P.2d 111 (1933); Wilson v. Kirchan, 143 Wash. 342, 346-47, 255 P. 368 (1927); see also G. Nelson & D. Whitman, Real Estate Finance Law § 8.1, at 594-95 (2d ed. 1985). The mortgagee may sue and ob......
  • Poultrymen's Service Corp. v. Brown
    • United States
    • New Jersey County Court
    • November 8, 1962
    ...as by foreclosure. This action was brought for a deficiency after the foreclosure proceedings had terminated. In Wilson v. Kirchan, 143 Wash. 342, 255 P. 368 (Sup.Ct.1927), the court held by a four-to-three decision that where the mortgage contained an acceleration clause providing 'In case......
  • Linder v. Terre Haute Brewing Co.
    • United States
    • Nebraska Supreme Court
    • May 29, 1941
    ...620, on rehearing.” Other cases sustaining this view are Durham v. Rasco, 30 N. M. 16, 227 P. 599, 34 A.L.R. 838;Wilson v. Kirchan, 143 Wash. 342, 255 P. 368. [3] The argument that section 20-2141, Comp.St.Supp.1939, requires that appellee must take the attached property as a satisfaction o......
  • Request a trial to view additional results

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