195 P. 543 | Idaho | 1921
In 1909 the appellant Alvin M. Harris was the owner of 540 acres of land in Owyhee county, on which
Thereafter, on the twenty-fourth day of January, 1914, the land was sold at public sale pursuant to said decree, and the bank became the purchaser, to which a certificate of sale was issued on the sixth day of February, 1914. On November 30, 1914, the bank assigned said certificate to the petitioner, Anna Noble, and on the fifth day of March, 1915, the sheriff of Owyhee county executed and delivered to the assignee and petitioner herein a deed conveying to her the
The contention of appellant is,' first, that as to him the decree of foreclosure is void, for the reason that he was not served with the cross-complaint by which defendant bank was seeking to foreclose the mortgage given by Donaldson; second, that the delay of about fifteen months between the date of the execution of the sheriff’s deed and the date of applying to the court for a writ of assistance, constituted Harris a tenant upon agricultural lands within the meaning of C. S., see. 7322, subd. 2, and therefore entitled him to hold over for one' year; third, that Anna Noble, the petitioner, is not the real party in interest in this proceeding; fourth, that his family burying-ground was included in the foreclosure proceedings and in the sheriff’s deed, notwithstanding it was never conveyed to Donaldson by Harris, and that for these reasons the writ ought to be set aside.
The first contention of Harris cannot be sustained, for it is uncontradicted that at the time the action to foreclose the mortgage was begun, and at the time the notice of lis 'pendens was filed, Harris had no interest in the land covered by the mortgage, except the burying-ground, and the conveyance from the mortgagor, by which Harris became the owner of the mortgaged land, was not executed until after the foreclosure proceedings were begun and the notice of lis pendens filed. This brought him clearly within C. S., secs. 6949 and 6674, and rendered it unnecessary to make
Equally untenable is the claim of Harris that he comes within the provisions of section 7322, supra, as a tenant of agricultural lands entitled to hold over for one year. On the execution of the deed by Donaldson, reconveying the land to him, Harris entered into possession and so continued up to the time the writ' issued. It does not appear that he was in any sense prejudiced by the delay complained of, and we are unable to see from the facts stated how the relation of landlord and tenant, as claimed by him, could have arisen between the petitioner and himself.
The uncontradicted evidence shows that Anna Noble was the holder of the sheriff’s deed to the land in controversy, and therefore she was the real party in interest and the proper person to apply for the writ of assistance.
The fourth contention of appellant, we think, must be sustained, for the reason that it is not denied that Harris reserved the title to the burying-ground when he conveyed this land to Donaldson, and that the trial court so found. Therefore, Donaldson had no right to mortgage it, and the foreclosure proceedings conferred no right to this tract on the purchaser at the foreclosure sale, and, of course, the assignee of such purchaser got no title thereto.
The order of the district court granting the writ of assistance should be modified so as to except said burying-ground from the operation of the writ; otherwise, the order should be affirmed. It is so ordered. No costs awarded to either party.