
    [No. 14814.
    Department One.
    July 30, 1918.]
    Albert W. Byrnes, Administrator etc., Respondent, v. Lee D. Payne, Appellant, R. C. Julian, Defendant.
      
    
    Limitation oe Actions — Tolling Statute — Accepting Deed Subject' to Mortgage. The acceptance of a deed reciting that it was subject to a certain mortgage, which was excepted from the warranty clause, is not such an acknowledgment of the mortgage as to toll the statute of limitations and prevent the bar of the statute for another period.
    Appeal from a judgment of the superior court for Walla Walla county, Smith, J., entered December 7, 1917, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.
    Eeversed.
    
      
      John H. Pedigo and Sharpstein, Smith & Sharpstein, for appellant.
    
      Earl W. Benson, for respondent.
    
      
      Reported in 173 Pac. 1091.
    
   Mitchell, J.

— On October 20, 1907, R. C. Julian gave Edward Byrnes Ms note for $300, due in one year. On November 7, 1907, Julian gave Byrnes a mortgage on tbe real property involved in tbis action to secure payment of tbe note. Tbe mortgage was recorded January 6,1908. There were, after tbe date of tbe mortgage, one or more conveyances, in regular line, of tbe real property, in each of wbicb it was stated tbat tbe conveyance was subject to tbe mortgage to secure tbe payment of tbe $300 note due Byrnes. Tbe last of such conveyances was made by William H. Kelly and wife to appellant, Lee D. Payne, on October 14, 1912. Tbe clause contaimng covenants of defense and warranty in tbis last mentioned deed has tbe words, “except one certain note of three hundred dollars ($300) secured by mortgage and interest, payable to Edward Byrnes.”

Edward Byrnes died, and Albert W. Byrnes was appointed administrator of bis estate in 1916. Nothing was paid on tbe note other than $1 by Julian, on August 25, 1917. Tbe administrator sued November 2, 1917, on tbe note and mortgage, making Payne a party defendant on account of tbe interest he held in tbe premises, wbicb was alleged to be inferior to tbe mortgage. Payne appeared in tbe action and defended on tbe strength of tbe statute of limitations, wbicb defense found no favor with tbe court, and a decree was entered tbat, among other things, subordinated and foreclosed all rights of Payne. Payne appeals.

There is a diversity of opinion among tbe courts concerning tbe one question involved. Some courts bold tbat a grantee who, prior to tbe bar of tbe mortgage debt, accepts title subject to tbe mortgage thereby makes such acknowledgment as will interrupt or toll the statute and keep the debt on foot for another statutory period. Such, however, is not the rule in this state. In the case of Boyer v. Price, 45 Wash. 667, 88 Pac. 1106, we said:

“The second objection, namely, that the exception in the warranty clause in the deed was so far an acknowledgment of the existence of the mortgage as to estop the respondent from claiming the benefit of the statute of limitations, is likewise not well taken. As was said in Weed Sewing Machine Co. v. Emerson, 115 Mass. 554: ‘The exception of the mortgage from the covenant of warranty therein, does not estop the grantee to dispute the validity of the mortgage as against the holder thereof.’ ”

The judgment, so far as it affects the rights of appellant, is reversed with directions to the trial court to enter judgment in appellant’s favor, decreeing the premises are his, free and clear of any lien on account of the mortgage.

Main, O. J., Parker, Tolman, and Fullerton, JJ., concur.  