Peterson v. Philadelphia Mortgage & Trust Co.

Citations

• 33 Wash. 464
• 74 P. 585
• 1903 Wash. LEXIS 542

Syllabus

<p>Ejectment—Defenses—Pleading—Mortgagee in Possession. In an action to recover possession of real estate, an answer showing that the defendant is a mortgagee in possesion with the consent of the owners of the legal title and under a written assignment of the rents for the purposes of security until arrears are paid, and that the same are not paid, and that plaintiff is a subsequent purchaser with notice, shows a rightful possession and is not demurrable.</p> <p>Same—Trial by Jury—Equitable Defenses to Legal Action. Such an answer raises equitable defenses to be first tried by the court, and plaintiff is not entitled to a jury trial.</p> <p>Mortgagee in Possession—Contract for Application of Rents —Construction. Where the owners of mortgaged premises surrendered possession thereof under a written assignment of the rents to be applied (1) to the repayment of disbursements for insurance, taxes, and repairs paid or to be paid by the mortgagee, and (2) to the payment of all arrears of interest “due,” the agreement is to be construed as prospective and covers the interest subsequently falling due, in view of the circumstance that the owners suffered the mortgagee to remain in possession and apply the rents to subsequent interest for years after tbe agreement was made.</p> <p>Ejectment—-Defenses—Mortgagee in Possession—Bona Fide Purchaser—Limitation of Actions. In an action by a vendee of tbe mortgagors to recover possession of premises from a mortgagee in possession, it is not error to refuse leave to file an amended complaint setting up tbe statute of limitations to tbe defense of the mortgage and possession thereunder, since tbe open possession of tbe mortgagee was sufficient to put tbe plaintiff upon inquiry as to tbe rights claimed and be can not claim to be a bona fide purchaser without notice.</p>