§21.1 - History, Development, and Constitutionality

• Jurisdiction: Washington

§21.1 HISTORY, DEVELOPMENT, AND CONSTITUTIONALITY

The historical underpinnings of the treatment of deeds of trust in Washington are discussed below, along with constitutional analysis.

(1) History and development

Washington has long recognized the deed of trust or trust deed as a valid real property security device, in effect a mortgage. Clay v. Selah Valley Irrig. Co., 14 Wash. 543, 45 P. 141 (1896).

Washington courts initially followed the English common law, which is described in more detail in John Gose & Aleana Harris, Deed of Trust: Its Origin, History and Development in the United States and in the State of Washington, REAL PROP., PROB. & TR. SEC. NEWSLETTER (Wash. State Bar Ass'n Real Property, Probate & Trust Section, Seattle, Wash.), Summer 2005, at 8. Hence, the remedy of nonjudicial foreclosure was available in Washington's early territorial days. In 1869, the legislature changed the state's policy as set forth in RCW 7.28.230(1), which provides in pertinent part as follows: "A mortgage of any interest in real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property, without a foreclosure and sale...