Hinchman v. Point Defiance Railway Co.

Citations

• 14 Wash. 349
• 44 P. 867
• 1896 Wash. LEXIS 373

Syllabus

<p>APPEAL — ESTOPPEL — MORTGAGE OF STREET RAILROAD — VARIANCE — UNRECORDED CHATTEL MORTGAGE.</p> <p>The fact that a junior mortgagee has accepted a portion of the proceeds arising from the sale of property under a decree foreclosing his and the senior mortgage will not estop him from appealing from such portion of the decree as would in no wise affect or destroy the part awarding him such sum.</p> <p>Under a mortgage of a street railway operated by steam and its appurtenances, which by its terms includes “ also all poles, wires, stringers, dynamos, etc., materials for constructing, maintaining, operating, altering, repairing and replacing the said line of railway and extensions, together with all rights, privileges and immunities now owned, held or enjoyed by the Point Defiance Railway Oompanv, or to be acquired by it during the term of this mortgage,” the mortgage covers electrical appliances which had been already purchased but which were not accepted and paid for until after its execution; and also an extension of the track for which right-of-way had been procured and surveyed, although the track was constructed by another company which subsequently bought out the mortgagor.</p> <p>One who, after having sold certain property, accepts a mortgage thereon is estopped in a foreclosure proceeding from setting up a claim of ownership thereof by -virtue of a provision in the contract of sale that the title should remain in the seller until payment, when there is no pretense that any of the parties to the foreclosure had notice of such condition.</p> <p>In an action based upon promissory notes which had been signed upon their face by the defendant as maker, it is not a variance to put such notes in evidence, although containing an endorsement over the signature of individuals who had not been made parties, to the effect that “ we hereby severally join in the execution of the within notes as original makers thereof and waive presentation and protest notice.”</p> <p>A mort