Dane v. Daniel

Citations

• 23 Wash. 379
• 63 P. 268
• 1900 Wash. LEXIS 369

Syllabus

<p>MORTGAGES-FORECLOSURE.</p> <p>Under the laws of this state, a mortgage upon realty creates merely a lien thereon and does not pass title thereto,</p> <p>either before or after condition broken; and hence a suit in strict foreclosure, where the mortgagee is proceeding against the owner of the fee, whether such owner be the mortgagor or a subsequent purchaser from him, is unauthorized either by the statute, or by the nature of a mortgage under the statute.</p> <p>SAME-COMMUNITY PROPERTY — PARTIES.</p> <p>In an action to foreclose a mortgage upon community real property, both husband and wife are necessary party defendants, although the record title to the premises may be in the name of but one of the spouses.</p> <p>ESTOPPEL-COMMUNITY PROPERTY IN NAME OF ONE SPOUSE-FAILURE OF OTHER TO FILE CLAIM.</p> <p>The failure of one spouse to file in the office of the county auditor an instrument setting up his or her claim in community property held in the name of the other spouse, as provided by Bal. Code, § 4545, does not estop such spouse from claiming an interest therein, except as against such bona fide purchasers as purchase without knowledge of the existence of the marriage relation, or who could not, by the exercise of reasonable diligence, have obtained such knowledge.</p>