Boyer v. Paine

Citations

• 60 Wash. 56
• 110 P. 682
• 1910 Wash. LEXIS 1011

Syllabus

<p>Mortgages — Deed as Mortgage — Subsisting Debt. Whether an absolute deed was intended as a mortgage to secure a debt, depends generally upon whether there was an existing indebtedness or liability which was still left subsisting and not discharged.</p> <p>Same — Evidence—Sufficiency. An obligation to build a canal and furnish water for irrigation, together with a contract for stipulated damages in case of default, to be performed in the future, is secured by an absolute deed, intended as a mortgage, where the same was not discharged by the deed but was left subsisting, and the performance of the contract was prosecuted after the deed was given.</p> <p>Same — Redemption-—Right to Waive. Since a mortgagor cannot in his mortgage renounce his right of redemption, a stipulation to that effect in a deed intended as a mortgage is of no effect.</p> <p>Ejectment —■ Relief — Judgment — -Foreclosure of Mortgage — Issues and Proof. In an action to recover land under a deed to plaintiffs, which the court found to be intended only as a mortgage, in which action the defendant merely asks that it be adjudged to be the-owner subject to the mortgage, it is outside of the issues and error to decree a foreclosure of the mortgage; notwithstanding that evidence was received without objection upon the question whether the mortgage had been satisfied.</p> <p>Ejectment — Pleading—Issues and Proof. In an action to recover a certain tract of land under a deed intended as a mortgage, it is error to determine the title to another tract upon which a similar-mortgage deed was given at the same time, when there was nothing, in the issues as to such tract, and the evidence received thereon was material upon the question of intent as to the tract mentioned in the complaint.</p>