Dungeness Logging Co. v. Oregon & Washington Railroad

Parker, J.

(concurring) — I concur in the result, but do not want to be understood as assenting to the view that a paramount title can become the subject of litigation in a real estate mortgage foreclosure, except by consent of the parties. I think that the holding in California Safe Deposit & Trust Co. v. Cheney Electric Light & Power Co., 12 Wash. 138, 40 Pac. 732, is not irreconcilable with the later decisions, as suggested in the opinion. That decision is only qualified by holding that consent will bring into such foreclosure the question of paramount title. The question of consent was not there involved. This was recognized as the correct rule in Oates v. Shuey, 25 Wash. 597, 66 Pac. 58. The fear that the language used may be construed as dictum in opposition to the Safe Deposit case prompts me to say this much.