Potwin v. Blasher

Citations

• 9 Wash. 460
• 37 P. 710
• 1894 Wash. LEXIS 342

Syllabus

<p>FORECLOSURE OF MORTGAGE SECURING PURCHASE MONEY — DEFENSES — BREACH OF COVENANT OF SEIZIN —COSTS— ATTORNEY’S FEES — TRIAL — FINDINGS OF FACT.</p> <p>In an action to foreclose a purchase money mortgage, given for land which the grantor covenanted to own in fee simple, but to which he had neither the legal nor the equitable title, the mortgagor may set off his expenses and outlay in defending and compromising a suit in ejectment in which the plaintiff has shown a good cause of action, as a constructive eviction is thereby established.</p> <p>Where costs in an action depend on facts not ascertained from the record of the case, the cost bill should itemize the charge.</p> <p>Costs on execution, being accruing costs which the sheriff adds as they are made, have no place in a cost bill.</p> <p>A note and mortgage securing the same constitute but one transaction, and where the mortgage provides for an attorney’s fee equal to five per cent, of the amount due, it is error to allow a fee in excess of such percentage, although the note itself may provide that, in case of suit thereon, the maker would pay “such sum as the court may adjudge reasonable as attorney’s fees.”</p> <p>The findings of fact made by the court upon the trial of a cause, either legal or equitable, should cover all the issues, and not merely such as may be sufficient to support the judgment.</p>