I cannot yield my concurrence in the foregoing opinion, even though supported by an overwhelming majority. It is obvious that, since the judgment of respondents against the Outlands was entered March 27, 1925, it became an existing lien against the premises; and when the agreement of April 22, 1925, was made between the Outlands and appellants, it necessarily, by force of law, was made subject to the lien of respondents' judgment against the property. The judgment lien thereupon took superiority, for the mortgage lien was extinguished. Of that judgment, appellants had actual as well as constructive notice, long prior to their *Page 649 cancellation of those indebtedness and mortgage rights.
The many cases and texts cited and quoted by the majority have no influence upon this question, because, as the trial judge said, "all of them lack the element of intent;" and, further, as the trial judge said,
". . . we have a situation here, of knowledge of all the facts, a deliberate, direct, intent to do a certain act, a mistake of law; but not a mistake of fact."
2 Jones on Mortgages (8th ed.), § 1242, states the applicable principles, as follows:
"Mistake must be one of fact. — To entitle one to relief in equity on the ground of mistake, it must be a mistake of fact and not a mistake of law, and the party seeking the relief must have been ignorant of all the material facts and circumstances. . . . For mistakes of law, neither courts of law, nor of equity, give relief. When there is no mistake nor misrepresentation as to the facts, and no fraud, there is no redress."
And further:
"A mortgagee who extinguishes his mortgage lien by purchasing the equity of redemption can not have it restored so as to take precedence of other liens on the ground that he was mistaken as to the legal consequences of his act."
"The only way in which a mortgagee who has purchased the mortgaged property from the mortgagors can preserve his mortgage as a subsisting lien to protect him against intervening liens, encumbrances or claims of dower or the like is to expressly provide in the instrument of purchase that the conveyance shall not operate to let in such intervening claims." Ib. § 1109.
"A mortgage after payment becomes functus officio and neither the mortgagee nor any one else has any power to transfer it as a subsisting security or to revive it to secure the same or any other liability." Ib. § 1204. *Page 650
"If the mortgagee accepts a conveyance of the mortgaged land from the mortgagor as payment of the mortgage debt, the mortgage is extinguished and is no longer a lien upon the land. The fact that the conveyance proves to be valueless does not affect its operation. The conveyance operating as payment of the mortgage debt, the subsequent judgment becomes a prior lien." Ib. § 1109.
It has been held:
"If a party acquires an estate upon which he has an incumbrance, the incumbrance is, in equity, considered as subsisting, or extinguished, according to his intentions expressed or implied. The intention is the controlling consideration, . . .
"A court of equity will not interfere to relieve a party from the effects of an injudicious bargain. . . . He acted upon a misapprehension of his legal rights, and not upon a mistake of facts." Campbell v. Carter, 14 Ill. 285.
That case also contains a very exhaustive and interesting review of the cases and texts upon that question. See, also, to the same effect, Jarvis v. Frink, 114 Ill. 395. In that case it was also said that the question of merger of legal and equitable estates, as of a mortgage with the fee, depends upon the intention of the mortgagee.
There is not the least difficulty here as to the intention of the mortgagee, for he, with full knowledge of all the facts, said that the deed and the note evidencing his indebtedness were canceled and relinquished. The deed appellants held was a mortgage. A mortgage is not a conveyance. Rem. Comp. Stat., § 804. Although in form a deed, it conveyed no title. Snyder v.Parker, 19 Wash. 276, 53 P. 59, 67 Am. St. 726; Clambey v.Copland, 52 Wash. 580, 100 P. 1031; Womach v. Harding,132 Wash. 184, 231 P. 949. The only question is one of intention, and it was conclusively shown that appellants intended to discharge *Page 651 their mortgage. Their note, mortgage and debt were canceled.
The same disposition also precludes appellants from reinstating the mortgage and foreclosing it. If canceled with intent, it is extinguished; there is nothing to foreclose.
Upon the facts shown in this case, the findings and conclusions of the trial court were correct, and the decree should be affirmed.
PARKER, J., concurs with HOLCOMB, J.