The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1898-06-19

claim. The congregation was formally
ousted by the sheriff. and FOR time it
looked as X the pastor would be compeil-
cd 10 hire a hall for his flock.
Then ii was that the church erection
fund, In order. ii is said, TO compel the re-
opening of the church doors. applied 10
the superior court for a receiver for the
property and asked that It's mortgage be
forecIosed, or the ground that its condi-
tons had been broken. on its face the
mortgage was prior 20 Morgan & Co.'S
claim. and they were made defendants.
that their rights might he declared sub
ordinate TO those OF the plaiutiT under the
mortgage. Morgan & Co. who contended
that the loan 20 the church was gift
more than anything else. demurre6 10 the
complaint, arguing that the mortgage was
OF no value. Their demurrer was sus-
tanned. and they were dismissed from the
action with a clear title TO the property
over the MORTGAGE. From the Judgment
OF dismissal the Board OF Erection Fund
Appealed. In reversing the decision of the
lower court, the supreme court goes quite
fully into the case. and sDStains the posi-
tion taken ~ VI Gephart. the appel
lan.'s attorney in nearly all respects. The
following Is the substance OF the higher
courts op:n!on:
1T Is contended by the respondent wal
ter Morgan & Co, that the demurrer was
properly sustained for the reason that 1t
appeared from the complaint that the
CAUSE OF action-the consideration OF the
mortEa ee-was barred ny the statute OF
limitations: that the mortgage waa void be-
cause of It's covenants being contrary TO
pubic policy and IN restraint Of alienation;
because the tine when the debt was ssIp-
posed 20 become due was vague. uncertain
ard Indefinite. because there had been no
breach Of the conditions and no right 10
forecloss appeared.
There are many answers 70 the first
c0ntentton-that the debt was outlawed-
but Il Is necessary 10 mention only two.
In the first place The pleading OF the stat
ute Ia a right accorded ny law TO the de-
fendan'--in this case the church-and II IS
not right that The plaintiff, Walter Nor
gan Il Go. can rsce i've the benefit o.. In
the second place il was nor pleaded In the
court below. The tiernurre~ was q genera!
demurrer and not ore or the ground that
The action mad not been commenced within
ne time allowed hy law. When the atten-
ji00 ~ the court IL intended % be directed
Ia any cf these specified groGa 81 for de-
murrsr 1t must be directed as specified by
statute.
'Tne next contention Is thai the cove
ua0ta NJ the mortgage were contrary 10
puhIc policy ana aA$o in restraint II alien
alton. We 30 not think there - any alien
alton = this mortgage a Oil. II - true tina:
where an estate - conveyed IN fee simple
proTiso thai ne grantee shall not con-
Sert % the gTanto~ - held % he void ~
restraint upon alienation. But 10
estate was created ~ this mortgage. Tae
D
remained IT. the n1ortre E0r
The cases cited ley ;ae respondent we
II Tot :tinS are IN pot0- a. alt. TIE prlr~
ciDai case. and the one in which the an
tn1e'tiez are ccl.atei il Du PeyS;e- vs.
Micaael $ y. Y. Court - Appeals AZ
Bot the Cs - ard ne arguments aA-
var~ei and CASES cite2 Sao1V cou~..1s .vaiy
that ;Ae doctrine c79terds-3 for could not
no applied - :h0 conditions s7eelfed In
th.4 mortgage The GlorrEago-S are mt
prevented from selling This urau4rtv No
restrictions are entai's-7 mon - -. she
eTect of ere <-iuatfttou ~ corEi.i1a ex-
pressed Is ssnF.v tnG, = s. $ sIseHafei ar
hardened ~ not use4 f0r ne Purposes
for "a 75ca he money was ica Cesl the mort
gaze hHe~ou7e7S due ard II a sale Evere made
Z would simply Sc made subject 70 the
-aorteagr-
#; Is also c70tsu8e3 that the mortgage
- contrary - p}4b}tc no'icy far he further
reasse9} ihaf & provided trsf tne scot eaosl.a
become &,sf s. tHe c1Urch s~osl.s erase 10
20 connected wsta the general a<sftn hty.
fh7t th5S As restraint uucn re xlotls 30
.f fH3 Cssr- - c4u4tg shzuid not 81
haia s4ch @oat~B~f We $40 rs4 ~z7a-s. II
t1ts c8n t@ng5cU. There ia na Y@str-s mt he~e
uus~ aEw Fre @ TEi <.ossz s-sf5af The tsea-f
q ,hngrg erection oAs a rssnT - .rxast is
-T7"afs for fr vrc-19t SO aEd 6ege~f - The
PEeStrEe vfsa church = ne United safes
= tt s9%S - 20 ao 50 FFsSgsrsS Div low
rates - Interest aud liberal ft-re are given
far tie purpose 0. pyore1ting the interests
- tia church acd tas-A - nashAaA