Dec. 1901.]

Opinion of the Court-REAVIS, C. J.

then went to see respondent, and according to the statement of appellant's witnesses the conversation was between Royal, the real estate agent, and respondent. Royal's testimony is as follows:

"A. Well, first this gentleman who sold out the place to Mrs. Stanton, and Mrs. Stanton and myself went down to see Mr. Schreiner; stepped around to the side door and found Mr. Schreiner was busy, and then we stepped to a side back room, right opposite the side door, and waited a little while to see him; and after waiting a little while, we got up, I believe, and went out on the walk in front; and I left Mrs. Stanton standing on the walk in front of the saloon and the lodging house that she was purchasing, and went in to see,-went in with Mr. Malacord to speak with Mr. Schreiner. Mr. Schreiner was standing alone at his desk, or behind the bar or desk, in the front of the saloon. I stepped up to him and spoke to him; he stopped and leaned over, in a business like way, promptly; and I told him Mr. Malacord had an opportunity to sell out to Mrs. Stanton, and asked him if it was satisfactory. Mr. Schreiner replied, he says, 'It is all right as long as she pays her rent and keeps a straight house.' 'Well,' I said, 'As to the straight house and the ability to pay rent, perhaps you had best meet the lady and talk it over with her.' He said, 'No, I don't care to'; he says, 'I am here in the house all the time myself, and if things are not run straight I will know it.' I asked him then if he would like some references. Mrs. Stanton had come to me with references, financially and otherwise, that were quite satisfactory; so I asked him that question. He says, 'No, I am here all the time.' That was the full extent of it, it was all done in about the time I am taking here now; that was about all there was of it."

Certainly the evidence, without controversy showed that the tenancy was for an indefinite time, with monthly rent reserved. The statute (§ 4569, Bal. Code) determines the time. It is declared:

"When premises are rented for an indefinite time, with monthly or other periodic rent reserved, such tenancy shall be construed to be a tenancy from month to month, or from period to period on which rent is payable, and shall be terminated by written notice of thirty days or more, preceding the end of any of said months or periods, given by either party to the other."

The notice having been given pursuant to the statute to terminate the tenancy, the verdict of the jury in favor of respondent must be conclusive.

The judgment is affirmed.

FULLERTON, HADLEY, MOUNT, DUNBAR and WHITE, JJ., concur.

26 568 €32 207 26 568 33 609

26 568

d37 36

37 37

38 53 e38 54

26 568 40 584

[No. 3970. Decided December 13, 1901.]

W. B. HANNA et ux., Appellants, v. ESTHER J. KASSON

MORTGAGES

et al., Respondents.

PERSONAL JUDGMENT AGAINST MORTGAGOR RES JUDICATA AS TO FORECLOSURE.

The fact that a personal judgment on notes secured by mortgage has been rendered would not constitute such judgment res judicata in a subsequent action for the foreclosure of the mortgage lien for the purpose of recovering that portion of the original debt which remained unpaid under such personal judgment. SAME STATUTE OF LIMITATIONS -WHEN BEGINS TO RUN.

In an action for the foreclosure of a mortgage, where the debt had been merged in a personal judgment on the notes secured by the mortgage, the running of the statute of limitations would not commence with the date of such judgment, but at the date of the maturity of the original debt as described in the mortgage.

SAME.

Where mortgaged premises have been conveyed to a subsequent grantee, payments made by the mortgagor on the mortgage indebtedness will not extend the running of the statute of limitations as against such subsequent grantee without his consent.

Dec. 1901.] Opinion of the Court-HADLEY, J.

SAME.

Where a subsequent grantee of mortgaged lands has been compelled to redeem a portion thereof from execution sale under a personal judgment against the mortgagor upon the notes secured by the mortgage, such involuntary payment would not operate to extend the statute of limitations as against an action of foreclosure upon the mortgage indebtedness remaining unpaid.

LIMITATIONS -EFFECT OF PARTIAL PAYMENTS BY CO-OBLIGOR.

Payments made by one obligor will not extend the statute of limitations as against a co-obligor who has not consented thereto.

Appeal from Superior Court, Thurston County.—Hon. ABRAHAM L. MILLER, Judge. Affirmed.

T. N. Allen, for appellants.

Byron Millett and D. E. Baily, for respondents.

The opinion of the court was delivered by

HADLEY, J.-Some of the matters suggested in the record of this cause were involved in litigation heretofore considered by this court. We refer to the opinions in Hanna v. Savage, 7 Wash. 414 (35 Pac. 127), and Hanna v. Reeves, 22 Wash. 6 (60 Pac. 62), as containing statements which are historically pertinent to a statement of this case. The statement here may be much abbreviated by reference to the opinions mentioned, and by considering them as preliminary statements leading up to the matters directly involved in this case. It will be observed by reference to Hanna v. Reeves, supra, that this court was asked in that action to give force and effect to the original mortgage lien which was executed by Savage to secure the debt of Savage, Thompson, and Drum. The court declined to do so in that action. That suit was brought to foreclose another and entirely different mortgage, in the way of a lien growing out of a sheriff's deed which the plaintiffs in the action were authorized, at their

Opinion of the Court-HADLEY, J.

[26 Wash.

option, to treat as a mortgage. The original Savage mortgage was not before the court under the issues in that case. The present suit was brought to foreclose the original Savage mortgage. The complaint alleges that on the 18th day of April, 1890, the plaintiffs sold to Savage, Thompson, and Drum certain real estate in Thurston county for the sum of $18,141, of which sum $1,000 was paid in cash, and by agreement of all the parties in interest the plaintiffs on said date conveyed said land to Savage, and at the same time took from him a promissory note executed by him to these plaintiffs for the balance of said sum, viz., $17,141, payable two years from date, with interest at the rate of ten per cent. per annum from date until paid, which note was secured by a mortgage upon said lands executed by said Savage at the time the note was delivered; that thereafter said promissory note matured, and the same not being paid, plaintiffs brought suit thereon in the superior court of Thurston county against Savage, Thompson, and Drum, and duly obtained a judgment in said court against said defendants for the sum of $19,969.25, principal and interest, and $90.85 costs; that said cause was appealed to this court by said defendants, and a supersedeas bond in the sum of $10,000 was filed on said appeal; that thereafter said judgment was affirmed, and judgment entered by this court on the 13th day of March, 1894, for the sum of $20,060.10, with interest from June 13, 1893, and $140.60 costs,said judgment being against Savage, Thompson and Drum in the full amount, and also against the sureties upon the supersedeas bond in several sums, not exceeding the amounts for which they were severally liable by the terms of said bond, and said judgment became the final judgment in said cause; that thereafter the following

Dec. 1901.]

Opinion of the Court-HADLEY, J.

payments were made on said debt, to-wit: March 24, 1894, $7,000; May 12, 1894, $10,000; April 17, 1895, $416.55; June 1, 1895, $1,431; that no other payments have been made upon said debt; and that, subject to the aforesaid credits, there is due and unpaid the sum of $20,060.10, with interest thereon from January 13, 1893, until paid, together with the sum of $140.60 costs adjudged in this court. It is alleged that the respondents claim some interest in the land, but that any such interest is inferior to plaintiffs' mortgage lien. The complaint asks for a decrce enforcing said mortgage lien, for the balance due as aforesaid, and establishing said lien as prior to any claim of respondents in said land. A demurrer to the complaint was overruled, and thereafter the defendant, Esther J. Kasson, answered separately. Among other things in her answer, she pleads the record in Hanna v. Reeves, supra, as a bar to this action, on the ground that the same matters there litigated and determined are sought to be litigated again in this action. She also pleads the statute of limitations. It was stipulated between plaintiffs and defendants Millett and Bailey that said defendants should not be required to file a separate answer, and that if final judgment shall be entered against Esther J. Kasson, the same judgment may be entered against Millett and Baily. The cause was tried by the court, and judgment entered dismissing the action. The plaintiffs have appealed.

Appellants urge that the record of the proceedings in Hanna v. Reeves, supra, as pleaded by respondent Kasson, is insufficient as a plea of res adjudicata in the present action. Counsel for appellants has ably and exhaustively discussed this subject in his brief, to the effect that, notwithstanding the fact that a personal judg ment only was taken upon the note against Savage, Thomp