Dennis v. Moses

Citations

• 18 Wash. 537
• 40 L.R.A. 302
• 52 P. 333
• 1898 Wash. LEXIS 597

Syllabus

<p>SALES OF REALTY UNDER EXECUTION AND FORECLOSURE — CONSTRUCTION OF STATUTE-APPRAISEMENT LAW — DEFICIENCY JUDGMENT — POSSESSION DURING REDEMPTION PERIOD — WAIVER OF STATUTORY PROVISIONS BY DEBTOR—ATTORNEY FEES — MEDIUM OF PAYMENT OF DEBTS.</p> <p>By construing together and harmonizing so far as possible the various seemingly incongruous provisions of the act of March 10, 1897 (Laws 1897, p. 70, Bal. Code, §§ 5273-5285, 5292, 5295-5298), the legislative intent is apparent therefrom to make provision for the appraisement of all property sold under execution or decrees foreclosing mortgage and other special liens held by private parties to the following effect: Where debtor and creditor •cannot agree upon an estimate of value, the valuation shall be made by appraisers, and the property cannot be sold for less than eighty per cent, of such appraisement when incapable of partition, unless the amount of the debt be less, when it may be sold for such smaller sum; and, further, when the real estate is capable of division into parcels, the land may be sold by parcels, whether under execution or foreclosure, though in ease of foreclosure of liens the whole property covered by lien shall all remain as security for the debt until its satisfaction. (Dunbar and Reavis, JJ., dissent.)</p> <p>The statutory provision in the act of March 10, 1897, requiring an appraisement of real estate sold under execution or decree of foreclosure, cannot be waived in the contract creating the indebtedness sought to be enforced, but, after default, the debtor may waive a further appraisement upon notice given by the judgment creditor of his estimation of the value of the realty. (Dunbar, J., dissents.)</p> <p>Code Proc. § 630 (Bal. Code, § 5890), which provides that a sale of mortgaged lands may be made forthwith, on the rendition of decree of foreclosure, is impliedly repealed by Laws 1897, p. 70, § 1 (Bal. Code, § 5273), providing that execution and foreclosure sales of real estate shall take pl