59 P. 557 | Idaho | 1899
— This suit was commenced by the respondent to obtain a judgment decreeing cancellation of a certain quitclaim deed made by the respondent to the appellant November 16, 1895, conveying lots 17 and 18, block 489, in the city of Pocatello. The complaint is quite lengthy. We summarize the allegations of the complaint necessary to be noticed as follows: That in August, 1892, appellant loaned J. B. Green and wife a certain sum of money, and took a mortgage from them upon said described lots; that Green’s wife did not acknowledge the mortgage, which was therefore void; that February 12, 1894, said lots were sold for delinquent taxes for the preceding year, and purchased at tax sale by the respondent, who, after the time for redemption had expired, received a tax deed to said lots from the assessor and collector; that at said time respondent purchased at delinquent sale lots 11,12,13, and 14, in block 259, said city, the last four lots being sold for the 1893 taxes of W. A. Boyce, the then owner of said lots; that prior to said sale W. A. Boyce and wife had mortgaged said four lots to appellant to secure $1,000, borrowed money; that in January, 1895, appellant represented to respondent that there was only $750 due on its said mortgage, and induced respondent to take a second mortgage on said Boyce lots for the sum of $400, the amount of taxes and penalties due on both the Green and Boyce properties; that at said time there was due on appellant’s mortgage on the Boyce property at least $1,400; that appellant informed respondent that, if he would deed to it the Green property, such respondent would protect him fully against loss, whereupon respondent made a quitclaim deed to appellant conveying to it said Green property; that said deed was without consideration; that on March 25, 1897, the appellant commenced an action to foreclose its said mortgage upon the Boyce lots, obtained judgment, had it sold, and purchased it for $1,688.50; that respondent’s mortgage had been defeated, and that Boyce and wife are insolvent; that appellant failed and still fails and refuses to hold respondent harmless and prevent the loss of his claim; that respondent “discovered a fraud had been practiced on him in January, 1897,” and that he immediately began .an action to foreclose said mortgage against said Boyce and wife
Numerous errors are assigned by appellant touching the action of the lower court in overruling the demurrer, in admitting evidence, and in making findings of fact and rendering judgment in favor of the respondent. While the complaint is faulty in some respects, we deem it necessary to consider only one question — that relating to the defense of estoppel set up in the answer. To sustain this defense the appellant introduced the judgment-roll in an action commenced by the respondent (plaintiff in this action), as plaintiff, against the said Boyce and wife and the appellant here, as defendants, to foreclose the said $400 mortgage executed by said Boyce and wife to the respondent here, and to-have the lien of said mortgage adjudged superior to that of the said mortgage executed by Boyce and wife to the appellant, which action was based upon the same facts as the one at bar, and in which action judgment was rendered August 16, 1898, in favor of the appellant and against respondent. The
In the former suit the court made the following findings of fact, to wit: “1. That the defendant the Co-operative Savings and Loan Association is, and was at all the times herein mentioned, a corporation organized and existing under and by virtue of the laws of the state of South Dakota. 2. That on the- day of September, 1892, for a valuable consideration, the defendants W. A. Boyce and Veronica Boyce, his wife, made, executed, and delivered to the said Co-operative Savings and Loan Association their certain mortgage for one thousand dollars upon lots 11, 12, 13, and 14 in block 295 of the townsite of the city of Po-catello, Bannock county, Idaho. 3. That on the eighteenth day of January, 1895, for a valuable consideration, the said defendants W. A. Boyce and Veronica Boyce made, executed, and delivered to plaintiff, W. H. King, their certain mortgage for $400 upon the same property as mentioned in finding No. 2. That the consideration for said mortgage was taxes paid by said plaintiff to the county of Bannock for the delinquent taxes for the years 1893 and 1894 upon the said property, and lots 17 and 18 in block-of the said city of Pocatello, and known as the 'Green property/ the said plaintiff being the purchaser of the said property, and the whole thereof, at the tax sale for the delinquent taxes for the year 1893; and the said mortgage was given for the redemption of all of the said property from the said tax sale. 4. That at the time of the accepting of the said mortgage of Boyce and wife to plaintiff, by plaintiff, the said plaintiff had actual and constructive knowledge of the mortgage to the Co-operative Savings and Loan Association^ mentioned in finding No. 2. 5. That on the third day of April, 1897, the said defendant the Co-operative Savings and Loan Association commenced an action in this court for the foreclosure of their said mortgage, making W. A. Boyce and Veronica Boyce and
We think that the former adjudication concludes the respondent in this action. It determines the facts and transactions upon which the fraud that he complains of in his action is based against him. Having litigated those facts in the former action, he cannot, by changing the prayer for relief, open up the same controversy, and have the same facts adjudicated again. “The doctrine is well established that a cause of action once finally determined, without appeal, or some proceeding for the annulment of the judgment between the parties on the merits by any competent tribunal, cannot afterward be litigated by a new proceeding either before the same or any other tribunal.” (11 Am. & Eng. Ency. of Law, 3d ed., p. 390, and authorities cited in note.) For the foregoing reasons, the judgment is reversed, and the cause remanded to the district court, with instructions to enter judgment in favor of the appellant, dismissing the action. Costs of appeal awarded to the appellant.