51 P. 761 | Idaho | 1898
The trial court made the following findings of fact, the cause having been tried before the court without a jury, to wit: “1. That from the fifteenth day of December, 1886, to the thirtieth day of April, 1888, one A. D. Thompson was the owner in fee of the property in litigation in this case, and which is described as follows, to wit: ‘Lot No. twelve (12) in block No. two (2) of the town of Mountain Home, in the county of El-more, and state of Idaho, as per plat of said town now on file in the office of the recorder of said Elmore county.’ 2. That on the fifteenth day of December, 1886, said A. D. Thompson executed a mortgage on the same to one John E. Byrne to secure the payment of $2,000, which said mortgage was a first lien on said property at that time. 3. That thereafter, to wit, on the twenty-fourth day of August, 1887, said A. D. Thompson executed a second mortgage on the said premises to Ferdinand Westheimer & Sons to secure the payment of $350. Both of said mortgages were duly recorded. 4. That on the 1st day of June, 1887, one C. A. Morrill & Co. obtained a judgment against said A. D. Thompson, and the property aforementioned was levied on and sold under said judgment, and on the seventeenth day of July, 1887, S. B. Kingsbury secured a sheriff’s deed to the same as attorney for said C. A. Morrill & Co., and on the eighth day of October, 1888, said S. B. Kingsbury deeded said property to said C. A. Morrill by -quitclaim deed. 5. That on the twenty-first day of February, 1889, said C. A. Morrill deeded said property to Mrs. Nora Linehan, defendant herein, by a special warranty deed. 6. That on the thirtieth day of March, 1889, said John E. Byrne, assigned his said mortgage and debt secured thereby to said Nora Linehan. 7. That on the thirtieth day of March, 1889 said Nora Linehan purchased the equity of redemption in and to said property from said A. D. Thompson by quitclaim deed, and on the same day said Nora Linehan, in consi deration of said deed from said A. D. Thompson, canceled and satisfied said mortgage which she had purchased from said John E. Byrne, and entered the satisfaction of the same on the
The complaint alleged the facts found, and concluded with the following prayer: “1. That the sale and assignment of said judgment and decree by said Nora and Patrick Linehan to said William Fields be set aside and the same declared null and void; 2. That the said certificate and deed by said sheriff to said Fields be set aside, and that the same be declared null and void, and of no effect; 3. That said Nora and Patrick Linehan and said William Fields be forever enjoined by a restraining order of this court from • asserting any right, title or interest in or to the said premises, or any part of the same”; “6. That the said C. P. Oliver, sheriff of said Elmore county, be ordered and directed to execute and deliver a deed of said premises to this plaintiff, J. H. Brady, in compliance with the sale of said premises by said sheriff on the ninth day of February, 1895, and that the said sheriff be directed by order of this court to
The defendant demurred to the complaint on the following grounds, to wit: “1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That there is a mis-joinder of parties, in this: that C. P. Oliver, as sheriff, is improperly joined as defendant with Mrs. Nora Linehan, Patrick Linehan, and William Fields; 3. That there is a misjoinder of actions in this: there is an action against the sheriff to compel him to execute a deed under execution sale with one against other defendants to set aside transfers, and with title.”
The trial court overruled the demurrer. The first ground of demurrer was not well taken, as the facts alleged stated a cause of action. The second and third grounds of demurrer are not, in our opinion, well taken, for the following reasons: The object of this suit was to determine the rights of the plaintiff in and to the realty in question, both as against the sheriff and the other defendants. The sheriff had sold to Mm at execution sale, but had, owing to the claims' of the defendants, refused to make him a deed. If the plaintiff had sued the sheriff alone, the the court should have required that Fields and the Linehans be made defendants. Under section 4102 of,the" Revised Statutes, all four of the defendants are proper parties to the action, as a judgment in favor of plaintiff would affect all. But the Line, hans filed their disclaimer, and the defendant sheriff filed an answer in the nature of a disclaimer, and in which he alleged that he was ready and willing to do whatever the court directed him to do in the premises. The case was contested solely by the defendant Fields, who prosecutes this appeal.
There was only one cause of action stated in the complaint. In alleging and proving this cause of action it was necessary to pass on the validity of certain transfers. Neither the practice under our code nor equity practice proper contemplate that a man who is entitled to a deed shall be compelled to bring as many suits as there may be questions involved or adverse claimants interested. The rules of practice in force in this jurisdiction were formulated to prevent multiplicity of suits, vexatious delays in litivatmn, and to settle complicated disputes by bringing in as defendant any person who has or claims an interest adverse to the
The findings of fact made by the court, which, for reasons heretofore given, will not be reviewed or disturbed, support the judgment. From said findings of fact it appears that Nora Linehan and her husband, Patrick Linehan, borrowed $1,300 from the plaintiff, and gave a note therefor, secured by mortgage upon the lot in controversy, on the fifteenth day of December, 1890, which mortgage was duly recorded; that plaintiff commenced a suit to foreclose his said mortgage, February 15, 1894, and on the same day filed a lis pendens notice in the county recorder’s office in Elmore county, stating the object of the suit, and claiming a first lien on the said lot; that on the same day she purchased said lot Nora Linehan bought a mortgage given thereon by the former owner, A. D. Thompson, to one John E. Byrne, and which was foreclosed by decree of the district court in and for Elmore county on the seventh day of November, 1893, in a suit between Westheimer & Sons and the Linehans, in which said Nora Linehan was adjudged to have a first lien on said lot; that during the pendency of said action brought by the plaintiff to foreclose his mortgage, the said Nora Linehan and husband, Patrick Linehan, assigned the judgment of foreclosure of said Byrne mortgage to the defendant Fields, and under which the defendant Fields purchased; that said assignment was made by the Linehans for the purpose of defrauding the plaintiff, and that the defendant Fields knew of and participated in such fraudulent intent. The appellant does not