Conklin v. Buckley

Citations

• 19 Wash. 262
• 53 P. 52
• 1898 Wash. LEXIS 357

Syllabus

<p>MORTGAGES —FORECLOSURE — ESTOPPEL — ASSIGNMENT.</p> <p>Where defendants in an action for the foreclosure of a mortgage are given the privilege of electing which one of two instruments given upon the same property to secure the same debt shall be foreclosed, they cannot raise the defense that the instrument chosen by them had been surrendered and canceled.</p> <p>Where suit has been instituted by an assignee to foreclose a mortgage which had been duly transferred to him, and the defendant, having been given an election between two instruments, given for the same debt, chooses the one for foreclosure which had not been assigned, equity would look to the substance of the matter and treat the assignment as covering the mortgage so selected by the defendant.</p>