American Savings Bank & Trust Co. v. Helgesen

Citations

• 67 Wash. 572
• 122 P. 26
• 1912 Wash. LEXIS 1213

Syllabus

<p>Mortgages — Execution-—Signing — Acknowledgment — Adoption oe Signature — Intention. Under Rem. & Bal. Code, § 8746, requiring deeds to he signed and making the acknowledgment a necessary-part of its execution, the acknowledgment of a mortgage , which the mortgagor inadvertently omitted to sign, and her intention to sign, is not equivalent to, or a substitute for, an actual signing, which is required by the statute in order to pass title, nor can it be said that she intended to adopt as her signature her name written in the mortgage as the grantor (overruling, on rehearing, Id., 64 Wash. 54. Dunbar C. J., Parker, and Mount, JJ., dissenting).</p> <p>Mortgages — Renewal—Release—Mistake in Execution — Equitable Substitution. Where new notes and a mortgage were given, not in satisfaction, but in renewal of a former mortgage on the same security, and the cancellation of the old and substitution of the new mortgage were contemporaneous acts, equity, looking to the substance rather than the form, will, when the new mortgage is found ineffectual for want of proper execution, disregard the release as failing for want of consideration, and substitute the old mortgage as a continuing lien securing the continuing debt, as between the parties, by á doctrine akin to equitable subrogation.</p> <p>Execution — Sale—Purchasers—Bona Fide Purchasers. An execution creditor purchasing at his own sale is not a tona fide purchaser and takes only the actual interest of the judgment debtor; so that, upon the equitable substitution, as between the parties, of an old mortgage, consideration for the release of which had failed through defects in the execution of a renewal mortgage by the judgment debtor, the lien of the old mortgage is restored taking its former priority over the lien of the judgment.</p> <p>Mortgages — Foreclosure —■ Renewal — Equitable Substitution. Upon the foreclosure of a void mortgage, given in renewal of a former mortgage, upon the same security, a decree foreclosing