Fuhrman v. Power

Citations

• 43 Wash. 533
• 86 P. 940
• 1906 Wash. LEXIS 744

Syllabus

<p>Process — Service — Publication —Delay—Mortgages—Foreclosure. In an action for tbe foreclosure of a mortgage, service of summons by publication must be commenced and tbe first publication made before tbe lapse of ninety days after tbe filing of tbe complaint, or tbe judgment will be void.</p> <p>Constitutional Law — Due Process — Executors and Administrators — Debts of Deceased. Bal. Code, §4642, providing that no real estate of a deceased person shall be liable for bis debts unless administration be granted witbin six years, is not unconstitutional as depriving a mortgagee of property without due process of law, where tbe debt was due at tbe time of tbe mortgagor’s death, although such death was unknown to the mortgagee.</p> <p>Actions — Commencement. Where tbe filing of a complaint is not followed by service witbin tbe time required by statute, tbe action is not commenced.</p> <p>Limitation of Actions — Suspension. Tbe running of tbe statute of limitations upon an action to foreclose a mortgage is not suspended by tbe death of tbe mortgagor, although such death was unknown to tbe mortgagee.</p> <p>Executors and Administrators — Debts of Deceased — Mortgages —Delay in Securing Administration. Where no administration upon tbe estate of a deceased person has been taken out within six years after bis death, bis real estate cannot, under Bal. Code, §4642, be subject to a mortgage foreclosure, although no one appears to defend tbe action as to a portion of tbe title.</p> <p>Mortgages — Mortgagee’s Possession — 'Unoccupied Lands. A mortgagee under a void foreclosure of timber lands which have never been actually occupied cannot claim as a mortgagee in possession, since his possession must be actual and not constructive.</p> <p>Same — Payment of Taxes. A mortgagee’s purchasing of timber lands at a foreclosure sale and the paying of taxes thereon does not constitute actual possession, since the payment of taxes alone is not evidence of ouster or a taking of actual posse