Scott v. Farnam

Citations

• 55 Wash. 336
• 104 P. 639
• 1909 Wash. LEXIS 758

Syllabus

<p>Vendos and Purchases — Mortgage by Vendee — Rights of Mortgagee Against Vendor — Rescission—Payments—Recovery. Where a vendor, after accepting a final payment made by the vendee’s mortgagee to protect his lien, secured a cancellation of the sale and a deed from the vendee, and resold the property after redeeming the mortgage, his personal liability to the mortgagee for the payment made on the purchase price depends upon whether the resale was made to a bona fide purchaser for value, and if so, the price received on the resale is immaterial.</p> <p>Vendor and Purchaser — Bona Fide Purchaser — Notice—Records — Burden of Proof. The burden of proving actual notice of an unrecorded conditional bill of sale, or of a claim not of record, is upon the party asserting the priority of the sale or claim.</p> <p>Mortgages — Property Subject — Mortgage by Purchaser in Possession — Effect. The interest of a purchaser in possession is subject to mortgage, and a mortgage operates as an eiultaule assignment of the interest, which precludes a rescission without giving the mortgagee opportunity to perform.</p> <p>Vendor and Purchaser — Mortgage by Vendee — Rights of Mortgagee Against Vendor. Where a vendee in possession mortgaged the property before full payment, and the mortgagee foreclosed, and in order to protect his lien, made final payment of the purchase price, the vendee being unable to do so, the vendor, who accepted the payment, is personally liable to the mortgagee for the amount of the same, where it appears that with notice of the final payment, he secured a rescission of the sale and a deed from the vendee, redeemed the property from the mortgage, and resold the property to an innocent purchaser for value, thereby cutting off the mortgagee’s equitable lien for tbe purchase price paid; since the vendee’s mortgage was an equitable assignment of the vendee’s interest, giving the mortgagee the right to complete the purchase and precluding a rescission thereof without the mo