237 P. 438 | Idaho | 1925
Margaret E. Clegg and Philip E. Clegg, respondents, brought suit against Mr. and Mrs. J.W. Dotson, and others, to foreclose a real estate mortgage alleged to have been given to Bales Brothers Lumber Company by the Dotsons and subsequently assigned to Margaret Clegg. After the Bales Brothers' mortgage was given the Dotsons executed and delivered another mortgage on the same property to M.H. Eustace, who, with his wife, appellants here, two of the defendants below, answered and by cross-complaint sought to have their mortgage foreclosed and it decreed that respondents' mortgage was null and void on the ground that J.W. Dotson did not sign respondents' mortgage but that his name was signed by Mrs. Dotson without his authority.
The court found that respondents' mortgage was valid and superior to appellants' and foreclosed it, refusing to foreclose appellants' mortgage. From such decree of foreclosure this appeal is taken.
Mr. Dotson was unable to read or write and Mrs. Dotson signed her own name and her husband's name in his presence and in the actual personal presence of the notary, therefore, Myers v.Eby,
A certificate of acknowledgment, complete and regular on its face, raises a presumption in favor of the truth of every fact recited therein. (Baldwin v. Snowden,
The burden of proving a state of facts which will overcome the probative force of the certificate is upon the party assailing it and it seems to be the rule that the testimony of the party acknowledging the instrument is insufficient to overcome the force of the certificate. (Ford v. Ford, supra;Adams v. Smith,
This court has held that one acknowledging before a notary public the execution of an instrument to which his name is attached or written adopts such signature as his own. (First National Bank of Hailey v. Glenn,
The trial court was clearly justified in finding that the Dotsons did acknowledge this mortgage and such finding will not be disturbed under the well-known rule. (Crumpacker v. Bank ofWashington County,
Appellants contend that the complaint herein is insufficient because it was not alleged therein that the property covered by the mortgage was in the county wherein suit was commenced, but that the description of the land and its location was only referred to, by incorporating the mortgage in *656
the complaint as an exhibit attached to and made a part of the complaint, relying on Campbell v. West,
The rule as stated in 27 Cyc. 1594 is:
"The property covered by the mortgage and against which foreclosure is asked must be described in the bill or complaint with reasonable certainty and particularity, both in order that it may appear to be within the jurisdiction and that it may be accurately described in the decree and identified by the officer making the sale. For this purpose it is generally sufficient to copy the description in the mortgage or to refer to the mortgage, a copy of the same being annexed or filed." (Citing Whitbey v. Rowell,
Appellants interpose Sweeney v. Johnson,
It is contended by appellants that attorney fees were improperly allowed, for the reason that there was no allegation in the complaint that the attorney fees sought to be enforced were secured by the mortgage and that the mortgage does not secure attorney fees. From the record it appears that the complaint contained an allegation that "said promissory note and mortgage provide for the payment of Attorney's fee in case said note or any part thereof is collected by an Attorney . . . . and that plaintiffs under the provisions of said note and mortgage employed Attorney herein to bring this action and collect said note and have obligated themselves to pay such Attorney fee to be paid herein." Appellant cites Lee v.McCarthy, 4 Cal. Unrep. 498, 35 P. 1034; Boob v. Hall,
"The language of the mortgage as to counsel fees is practically the same as that contained in the mortgage inKlokke v. Escailler,
The note herein contained a provision for the paying of "a reasonable attorney's fee" and the payment of the note is expressly secured by the mortgage. There was testimony to the effect that $150 was the attorney's fee which respondents were obligated to pay and $150 was stipulated as reasonable. (Porter v. Title Guaranty S. Co.,
No defense was interposed to appellants' mortgage and since they were parties defendant, and before respondents' mortgage could be foreclosed as a prior lien it was necessary to dispose of the relative priorities, it would appear the second mortgage was sufficiently a part of the subject matter of the suit to entitle appellants to have their mortgage foreclosed as junior to respondents'. (Hines v. Kays,
That Newton v. Gage, 155 Fed. 598, does not hold contrary to this is shown by the statement construing that case in FederalMining Smelting Co. v. Bunker Hill Sullivan M. C. Co., 187 Fed. 474, as follows:
"Of the points considered, the only one in anywise related to the present subject was, as stated by the court, 'that the bringing in of a new party by cross bill or otherwise, when the presence of such party as an original defendant would have defeated federal jurisdiction,' is not permissible." *659
There is no such question, of course, in the case at bar because, in the first place, appellants were made parties by respondents, and, secondly, their cross-complaint did not affect the jurisdiction.
The case should therefore be remanded, with instructions to the lower court to make the necessary additional findings of fact and conclusions of law and to enter a decree foreclosing appellants' mortgage subject to respondents', and it is so ordered.
Each party to pay its own costs.
William A. Lee, C.J., Wm. E. Lee, Budge and Taylor, JJ., concur.
Petition for rehearing denied.