MILLARD, C.J., MITCHELL, MAIN, and BLAKE, JJ., dissent. By this action, the plaintiff sought the foreclosure of a real estate mortgage and the recovery of a deficiency judgment. After a trial on the merits *Page 219 to the court, a decree was entered foreclosing the mortgage, but a deficiency judgment was refused as to certain of the defendants. The plaintiff has appealed, and by the errors assigned, he questions the rulings by which the personal liability of certain of the defendants was denied.
The facts, so far as now material, are substantially these: On March 11, 1926, for a valuable consideration, the defendants Rosenbaum and wife made and delivered to one Benninghofen their promissory note for $22,500, due on or before five years after date with interest, and at the same time executed a real estate mortgage to secure the payment of the note. On the next day after executing and delivering the note and mortgage, the Rosenbaums, by warranty deed reciting a consideration of ten dollars, conveyed the mortgaged premises to C. Edwin Davis, then the husband of Augusta B. Davis, the deed containing the provision, "Grantee assumes and agrees to pay mortgage of $22,500.00," etc. This deed was filed for record March 13, 1926 (the day after it was executed), at the request of one Rochester, whose connection with the transaction is not shown.
Three years later and on March 18, 1929, C. Edwin Davis and Augusta B. Davis, his wife, by warranty deed reciting a consideration of ten dollars, conveyed the mortgaged property to C.D. Bridges, Jr., and Otto F. Sutter. This deed also provided that the grantee should assume and pay the mortgage in question. This deed was promptly recorded at the request of Bridges, one of the grantees. Davis appears to have paid the interest accruing on the mortgage debt up until the time of the conveyance to Bridges and Sutter.
Shortly after the note and mortgage were executed, the payee and mortgagee duly assigned the mortgage *Page 220 and the note thereby secured to the appellant, L.V. Brewer, who has ever since been the owner of both.
On December 7, 1931, after the note had matured by its terms, an extension agreement was entered between the appellant, as owner of the note and mortgage, described as party of the first part, and C.D. Bridges, Jr., Mona M. Bridges, his wife, and C. Edwin Davis, as parties of the second part, in which agreement it is recited that the note is due and unpaid, together with delinquent interest amounting to $195.62, and that there are unpaid taxes and special assessments against the mortgaged property in large amounts, which are delinquent. The agreement further recites:
"WHEREAS, on March 12, 1926, said C. Edwin Davis purchased the above described premises from L.N. Rosenbaum and wife and on March 22, 1929, said C.D. Bridges, Jr., and Mona M. Bridges, his wife, in turn purchased the said premises from C. Edwin Davis and desire that the first party extend the date of payment of the principal sum due under said mortgage.
"Now, THEREFORE, in consideration of the mutual covenants herein contained, it is hereby agreed:
"(1) The party of the first part will extend the time for payment of principal of the said mortgage for a period of three (3) years and nine (9) months from March 11, 1931, with interest thereon from March 11, 1931, at six per cent (6%) per annum, payable semiannually on the 11th day of March and September.
"(2) The parties of the second part acknowledge the continuance of the said mortgage indebtedness and each agrees to remain personally liable for the payment of same to the extent he would have been personally liable had this extension not been granted by the party of the first part, and although this agreement may not be executed by the original mortgagors or all persons liable for the payment of the original mortgage indebtedness." *Page 221
Default having occurred under the extension agreement, this action was instituted in March, 1932. The defendants Rosenbaum and wife were served outside of the state, entered no appearance in the cause, and no personal judgment was entered against them.
The trial court, having found the facts substantially as hereinbefore outlined, concluded therefrom:
"That plaintiff is not entitled to a personal judgment against defendants, C. Edwin Davis and Augusta B. Davis, or the community composed of said defendants, C.D. Bridges, Jr. and Mona M. Bridges, his wife, and the community composed of said defendants, and Otto F. Sutter and Mabel E. Sutter, his wife, and the community composed of said defendants, because the evidence introduced is insufficient to prove an assumption of the debt."
[1] It is true that Davis and wife did not sign the deed by which they acquired title, and it is also true that no direct evidence was offered to the effect that they ever saw that deed or knew that it contained the assumption provision; but the deed was offered in evidence as the source of their title, and it was the only source shown by this record from which their title could come.
Presumably, Davis and wife claimed title from some source, since they paid interest on the mortgage, as the trial court found, and since they undertook to convey title to the property by warranty deed. One will not ordinarily assume the liability of executing a warranty deed to property to which he has no title; and the fact that Davis and wife, after paying interest on the mortgage for years, executed and delivered a warranty deed, certainly supports the inference that they were claiming title under the only deed in existence, so far as the record shows, which could give them title. That inference or presumption is no doubt rebuttable, but if Davis and wife claimed any other source of title, *Page 222 it was their duty to produce evidence to support such a contention.
While we think the introduction in evidence of the deed from Rosenbaum and wife to Davis and wife, together with the other facts and circumstances shown, make a prima facie case and place the burden on Davis and wife to show that they never accepted that deed, yet we need not rest our judgment upon those facts alone. When C. Edwin Davis joined in the extension agreement, he acted for and on behalf of the community as well as himself; and in that agreement, in plain language, by reference to the date and by giving the name of his grantors, he fixed the Rosenbaum deed as the source from which the community received its title with absolute certainty, and just as certainly he showed that the title so conveyed had been accepted.
Very respectable authority supports the rule that recording alone is prima facie evidence of the delivery of a deed. 1 Devlin on Deeds (3d ed.), § 292, 509; 8 R.C.L. 1004. Here, of course, in order to bind Davis and wife, it was necessary to show both delivery and acceptance, and we are convinced beyond the peradventure of a doubt that both delivery and acceptance were shown sufficient to satisfy the most strict and technical rule.
In 2 Jones on Mortgages (8th ed.), § 940, it is said:
"The grantee is bound by accepting the deed. To create a liability on the part of the grantee to pay an existing mortgage, it is not necessary that he should sign the deed or any obligation; his acceptance of a deed imposing this obligation upon him is all that is necessary. . . . .
"By the acceptance of a deed which provides that the grantee shall assume and pay a specified mortgage, he binds himself as effectually as he would by executing the deed himself as an indenture. . . ." *Page 223
We have expressly adopted this rule. Federal Land Bank ofSpokane v. Miller, 155 Wash. 479, 284 P. 751.
The assumption clause in the deed is written in clear and explicit language and fully satisfies the rule mentioned in the case of Perkins v. Brown, 179 Wash. 597, 38 P.2d 253.
Of course, if one accepts a deed, he accepts the burdens as well as the benefits; and in the absence of mutual mistake, fraud, or some defense of like character, which must be established by clear and satisfactory evidence, it will be presumed that the grantee knowingly accepted all of the provisions of a deed under which he claims title. This is a familiar rule seemingly not denied by the respondents, and it need not be buttressed by the citation of authority.
[2] As to the respondents C.D. Bridges, Jr., and wife, a like result must obtain. The deed to them contains a clear assumption clause, it was filed for record at the request of C.D. Bridges, Jr., but a few days after its execution, and the act of recording the deed is prima facie proof of the acceptance of that deed and of all of its terms. Hence, in the absence of any showing to the contrary, it must be held that there was a primafacie showing of acceptance by them.
[3] We find, however, no fact established by the record showing acceptance by the defendants Otto F. Sutter and wife. As to them, the judgment must stand affirmed, but as to C. Edwin Davis and the community composed of C. Edwin Davis and Augusta B. Davis, his wife, and as to C.D. Bridges, Jr., and the community composed of C.D. Bridges, Jr., and Mona M. Bridges, his wife, the trial court erred in finding that a prima facie case had not been made.
The judgment, so far as it denies a right to a deficiency judgment against the parties indicated, must *Page 224 be reversed, and the cause remanded for further proceedings.
The appellant will recover costs against respondent Davis and the community composed of Davis and wife, and against respondent Bridges and the community composed of Bridges and wife.
Reversed and remanded.
HOLCOMB, BEALS, STEINERT, and GERAGHTY, JJ., concur.