
    [No. 25663.
    Department One.
    October 28, 1935.]
    Albert Stahly et al., Respondents, v. Amelia D. Emonds et al., Defendants, Jacob Gottwig et al., Appellants.
      
    
    
      Bausman, Oldham, Cohen S Jarvis, for appellants.
    
      F. C. Kapp, for respondents.
    
      
      Reported in 50 P. (2d) 908.
    
   Main, J.

This action was brought for a personal judgment, to have a real estate mortgage declared a prior and superior lien, and for the foreclosure thereof. The defendants Amelia D. Emonds, a spinster, E. V. Jahn and Esther Jahn, his wife, L. K. Brin and Josephine S. Brin, his wife, defaulted. The case went to trial before the court without a jury, between the plaintiffs and the defendants Jacob Gott-wig and Lizzie Gottwig, Ms wife. The trial resulted in findings of fact from which the court concluded that the plaintiffs had a superior right under the mortgage. A personal judgment was entered against Miss Emonds and a judgment of foreclosure upon the property covered by the mortgage against the defendants Gottwig and wife, from which they appeal.

The facts necessary to present the controlling question here for determination may be summarized as follows: E. V. Jahn was engaged in the real estate and brokerage business in the city of Seattle. The respondent Mrs. Stahly had two thousand dollars which she desired to invest in a real estate mortgage and, looking to this end, went to see Jahn. He told her that he did not have such a mortgage at the time, but that he would let her know in a few days.

Subsequently, a transaction was closed by which Miss Emonds mortgaged a property improved by a dwelling house. April 15, 1925, Miss Emonds executed a note for the sum of two thousand dollars, payable to Mrs. Stahly within three years after date, with interest to be paid semi-annually. This note was secured by a mortgage upon the property mentioned. Mrs. Stahly delivered the two thousand dollars to Jahn and received the note and mortgage, which she kept for a period of about three years in a safe deposit box which she and her husband had.

In 1928, Mrs. Stahly took the note and mortgage to Jahn in order that they might be renewed, they being then due. Subsequently, the note and mortgage remained in the possession of Jahn, and he collected the interest thereon, no renewal at any time having been made. In 1932, the interest being in arrears and Mrs. Stahly not being able to get it from Jahn, she and her husband went out to the property covered by the mortgage, and there for the first time met Mr. and Mrs. Gottwig. When inquiry was made about the interest upon the mortgage, Mr. G-ottwig said that there was no mortgage upon the property, and that he and his wife owned it. Subsequently, the present action was brought for the purpose above stated.

The following transactions were had concerning the title to the property subsequent to the giving of the Emonds note and mortgage:

October 10, 1925, deed from Miss Emonds to Jahn, subject to the mortgage;

October 19, 1925, deed from Jahn and wife to L. K. Brin, subject to the mortgage;

September 17, 1928, deed from L. K. Brin and wife to Mrs. Stahly;

September 22, 1928, deed from Albert Stahly to Hannah K. Stahly, his wife;

September 27, 1928, satisfaction of the mortgage from Miss Emonds to Mrs. Stahly;

September 28, 1928, deed from Mrs. Stahly to Jacob Gottwig.

Mrs. Stahly denied executing a release of the mortgage or the deed from her to Mr. Gottwig; in fact, she denied any knowledge of the transaction, other than as above stated, which had to do with the note and mortgage and interest thereon. Mr. Stahly denied having executed the deed to his wife. When the property was purchased by Mr. Gottwig in 1928 and he received the deed therefor, he paid the sum of $2,200 in cash for it. This was paid to Jahn.

Upon the trial, testimony was received, over objection, as to conversations had with Jahn, the reason for the objection being that, inasmuch as Jahn had defaulted, his declarations were not admissible in evidence as against Mr. and Mrs. Gottwig. Even though the testimony, as claimed, was not admissible, it, nevertheless, was not prejudicial, because (a) it had a very indirect, if any, hearing upon the vital and controlling issue in the case; (b) the case, having-been tried before the court without a jury, is triable' here de novo; and (c) the trial court’s oral opinion at the end of the trial indicated that it did not place any substantial reliance upon this questioned testimony.

The controlling question in the case is one of forgery; that is, whether Mrs. Stahly’s name was forged to the release of the mortgage and the deed to Mr. Gottwig, and whether Mr. Stahly’s name was forged to the deed to his wife. This presents purely a question of fact. Both Mrs. Stahly and Mr. Stahly testified, unequivocally, that the signatures upon the instruments mentioned were not theirs. As against this testimony, Mr. and Mrs. Gottwig introduced two experts on handwriting, both of whom testified that the signatures in question were genuine. One of these witnesses testified in great detail. The trial court, after hearing the testimony, in the oral opinion at the conclusion of the trial, said, with reference to the Stahlys and the Gottwigs:

“I believe the parties plaintiff and the defendants. Gottwig are honest, conscientious people. They have been tricked into this condition of affairs confronting me. I believe they have spoken truthfully also upon the witness stand, — they and their witnesses.”

In the formal findings, it was distinctly found that the questioned instruments had been forged.

The record furnishes no reason why Mrs. Stahly should have executed either the release of the mortgage or the deed, the mortgage not having been paid. Even though the rule be as contended for by the appellants, a question which we do not decide, that forgery must be established by evidence which is clear and convincing, the evidence in this case, offered by tbe respondents, meets tbe requirements of tbat rule.

Jabn, át tbe time of tbe trial, was serving a term in tbe state penitentiary at Walla Walla, and bis testimony was not taken, either orally or by deposition.

It would serve no useful purpose here to attempt to review tbe evidence in detail, tbe question being one of fact. It is sufficient to say tbat, after reading and considering all of tbe evidence, we are of tbe view tbat it distinctly sustains tbe findings of tbe trial court, and tbat tbe names of Mr. and Mrs. Stably were forged to tbe instruments mentioned.

There has been something said about Jahn being tbe agent of tbe respondents. It is true that be was tbe agent for tbe purpose of collecting tbe interest, and tbat be bad possession of tbe note and mortgage, as indicated, but it cannot be inferred from this or from any other evidence in tbe case tbat be bad a right to sign tbe name of Mrs. Stably to tbe release of tbe mortgage and deed, or tbat of Mr. Stably to tbe deed. Tbe question in this connection is not whether Jabn would have bad tbe right, under tbe facts stated, to have collected tbe principal of tbe mortgage. Tbat question is not now before us.

Something has also been said in tbe briefs with reference to estoppel, but tbe record is barren of anything which can be invoked as an estoppel as against tbe respondents or either of them.

It is our opinion that tbe case was correctly decided by tbe trial court.

Tbe judgment will be affirmed.

Beals, Steinert, Geraghty, and Tolman, JJ., concur.  