Murdoch v. Leonard

Citations

• 15 Wash. 142
• 45 P. 751
• 1896 Wash. LEXIS 154

Syllabus

<p>REFORMATION OF MORTGAGE — MUTUAL MISTAKE — PLEADING — PARTIES — CONTRACT OF MARRIED WOMAN — EVIDENCE OF OWNERSHIP OF MORTGAGED PROPERTY — FAILURE TO DO EQUITY.</p> <p>The fact that the complaint, in an action for the reformation of a mortgage, does not in express terms aver that the mortgage was erroneously executed through “ mutual mistake ” will not render it insufficient, if it sets up facts from which such a conclusion is inevitable.</p> <p>The deed or contract of a married woman may be reformed in this state, in cases of mutual mistake, since § 1410, Gen. Stat., does away with the wife’s legal disability to contract.</p> <p>In an action to reform and foreclose a mortgage upon premises erroneously described, the mortgagors’ ownership of the premises intended to be mortgaged is sufficiently proved prima facie by evidence showing that the defendants were in possession of the property, exercising acts of ownership, renting and receiving rent therefor, insuring same in their own right as owners, and that they offered to convey the property to the mortgagee in consideration of a release of the mortgage and the payment of a small sum of money,</p> <p>One whose title is adverse to and paramount to the mortgagor is not a necessary nor proper party to a foreclosure of the mortgage.</p> <p>In an action to reform and foreclose a mortgage upon premises misdescribed therein, the plaintiff is not entitled to a decree, when he has, in consideration of a release of the mortgage, received a deed conveying the premises as erroneously described in the mortgage, and has failed to surrender the deed or to tender a reconveyance of the premises, as misdescribed therein.</p>