85 P. 974 | Idaho | 1905
Lead Opinion
— This action involves the title and right of possession of certain property heretofore used on what is known as the “Salem Barr” mine. This mine is a placer property, and at the time the property in dispute was placed thereon was owned and operated by the Salmon River Mining and Development Company. It is alleged in the complaint that the Salmon River Mining and Development Company has no right, title or interest in or to said property, and that it was never owned by said Salmon River Mining and Development Company, and as a foundation for this allegation two promissory notes of $450 each, dated April 9, 1900, payable to George H. Kester, respondent herein, signed Salmon River Development Company, by its president and secretary, due July 11, 1900, with interest at the rate of one per cent per month. The two notes above referred to are what are termed conditional sale notes, and contained a description of the property in controversy alleged to have been sold as above indicated, except the seven hundred feet of pipe. On the twentieth day of August, 1902, $150 was paid on one of the notes, and on September 21, 1902, $100 was paid on the same note. The condition of the notes was that title to said property should remain and be in said Kester, and the ownership and right of possession thereof shall likewise remain and be in Kester until both were fully paid.
It is alleged in the eighth paragraph of the complaint that the “Salmon River Mining and Development Company” at no time ever complied with the conditions of said contracts, nor did they ever pay the purchase price of said machinery. The ninth allegation is “that the property last above hereinbefore described is now owned by the plaintiff by virtue of the foreclosure of the chattel mortgage heretofore existing upon said property, and the subsequent transfer of said property to this plaintiff, which transfer was made long prior to the levy^ on the order of sale above referred to.”
“Lewiston, Idaho, May 29, 1903.
“Received from William Schuldt, sheriff, one hundred and 35/100 dollars, proceeds of sale in cause of Lewiston National Bank v. Salmon River Mining and Development Company.
“LEWISTON NATIONAL BANK.
“GEO. H. KESTER, Cashier.”
Plaintiff claims the seven hundred feet of pipe by reason of the sale of this property to the First National Bank of Lewis-ton by the sheriff under the chattel mortgage, claiming that he bought the property from the bank after its purchase at the sale. The answer denies that plaintiff is the owner of the property in dispute, including the seven hundred feet of pipe. Avers that respondent Phillips, on the eighth day of December, 1903, secured a judgment and decree of foreclosure and -sale against the Salmon River Mining and Development Company, for the sum of $699.30. Aver that the property levied upon by the sheriff was the property of the Salmon River Mining and Development Company. The answer then sets up affirmative defense by alleging the lien of respondent Phillips,
As conclusions of law the court states that the said George H. Kester is entitled to the decree and judgment pending the injunction heretofore issued herein' and awarding him costs in this cause. Much of the former history of the subject mat
If it were shown by the record that by any act of the plaintiff in the former litigation of the property involved in this action, or by anything he said, appellant Phillips was misled or deceived as to the claim of Kester to the property in controversy, then we think this judgment would be erroneous, but it is shown that an answer in the original action of Phillips v. Salmon River Min. etc. Co., was filed by defendants in which it was averred that plaintiff (Kester) was the owner of the property in dispute, and there attempted to litigate his claim
There are a number of disputed facts in the oral evidence, but the trial court finds for the plaintiff on the entire record, hence has passed upon the oral evidence in the light of other facts in the ease, and we do not feel inclined to disturb that finding. We think the facts alleged in the complaint were sufficient to warrant the court in granting relief by injunction. The judgment is affirmed with costs to respondent.
Rehearing
ON REHEARING.
— A rehearing was granted in this case and it was again argued at the March term. There seems to be some uncertainty as to the effect and extent of the perpetual injunction granted against the sale of the property levied on by the sheriff in the foreclosure proceedings of Phillips v. Salmon River Min. etc. Co., 9 Idaho, 149, 72 Pac. 886. In order that there may be no misunderstanding or uncertainty as to the scope and extent of the decree, we will order and direct that it be so modified as to limit and restrict its application to the specific property described in the conditional sale notes held by respondent against the Salmon River Mining and Development Company and the seven hundred feet of sixteen-inch pipe claimed in addition thereto. In all other respects the judgment must be affirmed and the opinion of this court previously filed will stand as the opinion of the court.
There are two reasons why the judgment of the lower court must be affirmed as above indicated: 1. It is nowhere shown that the respondent ever consented to the Salmon River Mining and Development Company, or anyone else, attaching or affixing the personal property or machinery to the realty for the purpose of making it, in point of law, a fixture and therefore a part of the mine. On the other hand, the terms of the
While the chattel mortgage through which respondent claims title to the seven hundred feet of piping was subsequent in point of. time to the Phillips lien, still it does not appear from the record that the piping had become a fixture or a part of the realty in such manner as to be holden by the lien as against a chattel mortgage.
The case will be remanded to the trial court with directions to modify the decree as above indicated, and the costs of appeal will be divided equally between appellant and respondent.