*1 [42 Perkins Points Decided.
(May J. F. PERKINS and JOHN WARDROP and LYDIA A.
WARDROP, Wife, Respondents, De Husband and BUNDY, Appellant, WITT and E. BUNDY and SIG MORRELL, County, Idaho, Sheriff of Camas Defend ants. 751.] Conveyances Mortgages — — — Eights
Fraudulent Foreclosure Mortgagee Eights Property — of General Creditor —Classes Subject Mortgage Peal Estate —Fixtures as P'art of Mort- gaged Property. partner, 1. Evidence that father's em- son was rather than ployee, intent, finding fraudulent held to sustain sufficient judgment by son father was collusive and of creditors. Mortgagees obtaining deficiency 2. judgment before under decree are not creditors entitled to maintain conveyance by action aside to set fraudulent having 3. Creditor not lien on to have been fraudulently conveyed cannot maintain action to set aside conveyance reducing until claim to S., 4. Under C. decree foreclosure of can be entered until after foreclosure sale. obtaining Mortgagee deficiency judgment 5. before cannot against mortgagor taken attack fraudulent. complain Mortgagee in procuring judg- cannot of fraud against mortgagor ment subject sale under must be to mortgagee’s since tight. 7. Under C. see. certificates of sale of sehool lands to real estate purchaser O. interest of Under under con- may mortgaged. is interest real tract defining personal property taxation, for S.,C. change purchaser’s rule that land held not estate, mortgageable and affidavit contract required 6375 is mort- faith under section make gage against purchaser’s valid creditors.
Argument Appellant. showing In affixed to part require thereof, mortgage of them would not were not a recording as chattel formalities of affidavit and *2 S.,C. sec. .6375. showing with im- 11. In absence in lease reference to provements any agreement between state on school lands or of thereto, presumed with it will be and lessee reference mortgaged as such. APPEAL from the District Fourth Judi- Court County. Ensign, Henry cial District for F. Camas Hon. Judge. enjoin
Action to set aside sale under exe- Judgment cution. plaintiffs. for Reversed and remanded. Angel, Appellant. B. M. for Zent, Bespondents, Lydia
D. W. Wardrop, John Wardrop. A. plaintiff permitted attack a cannot be decree of Bundy, unless his interests would be affected and those interests enforcement must (Har-
have accrued to the rendition of the Boyle, 16 102 pold 671, Ida.
In maintain plead- order to an action of this kind the ings practiced must show the fraud was him. Note. Publisher’s Bedueing precedent, claim to as condition see notes Kep. 745; 354; also, 14 Am. 4 L. A. 67 L. E. See, St. E. A. 612.
12 C.E. i. 626.
4. See 19 B. L. 668. 19 E. C. 8. See L. 291.
11. See 11 O. L. J., Fixtures, 39, p. 676, 26 See O. see. n. 21. J., 115, p. 474, 31; 119, 27 C. see. n. Fraudulent sec. p. 53; 781, p. 835, 475, 44; 579, 727, n. p. n. n. Cyc., 89; 3; p. Mortgages, p. 1035, p. 1037, 1038, 27 n. 12; n. n. 55; p. 1642, 55; p. 1756, 1107, n. n. n. p. [42] Idaho —36 original np plaintiff
Nor can the set matter defense subsequent. Judgments, 293, 294.) pp. Black on 916, 163 Pac. Christopher, 197, In Ida. Lewis v. land which court decided that state a contract to right property. possession was real with it the carried departments This in the col- decision so confused the amended, designating this lection of taxes that the law was (C. S., personal property. class of secs. Co., Ida. 3283; People Owyhee Lumber 1082). Edwards, 212 Pae. Casey 123 Wash. mortgage an to attach a chattel affidavit Failure design effect that was made in faith without ‘ hinder, delay creditors, or defraud is void (Beeler Go., creditors. Ida. C. Mercantile v. C. .310, 60 L. R. A. Ann. Cas. Respondent Croner, for G. Hedrick Frank Per-
J. *3 kins. mortgage being Bundy E. had in equity
The on school improvements improvements on on land and thereon and from himby other school land held under lease mortgage within a real estate mortgage A affixed to creates chattel on (Beeler 8Co., 644, Ida. Mercantile lien thereon. v. C. G. 310, 60 L. R. A. Ann. Cas. law a sale of a debtor’s at and A although equity, aside in founded thereunder will set by collusion to upon just debt, procured be used as creditors, other property from protect cover his giving preference to one creditor over of purpose for the creditors. Moore intended to defraud or otherwise others, pp. on Fraudulent brought plaintiffs BRINCK, by Commissioner. Suit creditors, of obtained aside, inas to set Bundy, defendant E. Bundy by defendant enjoin sale, creditors, and claim plaintiffs to be whom of May, 1926.] of tlie Court — judg- upon
under execution issued The levied of E. so ment, by lands, held upon of state consists of of sale certificates other state improvements upon Bundy purchaser, E. as lease, and cer- lands, under lands E. holds which property. levy been made tain other appears from personal property. all of property as It said which under that debt Bundy, E. promissory defendant consists notes given plain- 1919, aggregating $10,000, date October aggregate sum notes, Wardrop, two tiffs assigned plaintiff $4,000, were, maturity, *4 sale. the foreclosure will arise deficiency a judg- Bundy, his son Bundy is the of E. DeWitt Bundy against 'DeWitt of said a claim ment is based years; suit covering wages, period eleven his father and his father suffered Bundy, DeWitt instituted was against contest. him without be rendered to of the Bundy alleges from E. no debt existed The collusively Bundy, judgment was DeWitt and that to Bundy, of E. creditors suffered obtained in fraud of including plaintiffs. general com-
The overruled a demurrer to court denying facts plaint, answered, and defendants was based. plaintiffs’ collusion issues, plaintiffs upon and entered The court found for Bundy, setting DeWitt decree aside the enjoining any sale, under the including per- some upon, which had been levied did not sonal to which the purport judgment, Prom this DeWitt cover. Bundy appeals.
[1] It is contended by appellant that the evidence is in De finding of sufficient sustain the the trial court that of credi Witt in fraud collusive and tending is, in however, tors. There evidence record of his partner was a show that defendant actual employee, than an father rather and some evidence to sustain intent. The evidence sufficient respect. finding of the court in this [2] assignment error based on overruling Ap question. general presents a more demurrer serious yet having pellant plaintiffs, not obtained contends that deficiency foreclosure, are not judgment under decree of an creditors maintain action to set aside fraudu entitled conveyance by the So far at least as the lent the sale of complaint seeks relief objection good. this cluded the terms It elementary that, general, until creditor his claim at least the absence reduced fraudulently been a lien have conveyed, his maintain action to set aside he cannot (Sewell Price, conveyance fraudulent. debtor’s Campbell, 100 Cal. Cal. Pac. Brown 47 Wash. Ambaum, 433; O’Day 38 Am. St. A., Bump Fraudu- 15 L. on N. R. *5 n 565 Perkins Opinion Brinck, Commissioner. of Court — seq.) main- p. ; nor can ed., lent 3d et he disposing of his action debtor from tain an to restrain a Brumbaugh Jones, (O’Day Ambaum, supra; on Fraudulent Con- 98 N. W. Moore Neb. Conveyances, 3d p. veyances, 1041; Bump on Fraudulent 527). ed., p.
[4] A decree of of a is in no can personal judgment, sense and no a (C. be entered until after foreclosure sale 267); 519, 57 Pac. Co., Barnes v. 6 Ida. Pitts Buffalo prior deficiency judgment, entry such ac a to the mortgagor (Cotes v. Ben by tion maintained cannot be 661). is insuffi nett, 55 N. E. Ill. personal property cient relief as to entitle mortgage. which is in plaintiffs’ not described [5] Nor does the any ground equitable upon plaintiffs’ relief as to the levied by plaintiffs’ mortgage is their If mortgagors’ purchased lien interest improvements on the from nor leased just stated, not land, for the reasons plaintiffs, fraudulent, deficiency position judgment as attack the judgment having been obtained. On the other hand, if any is it a lien this is Dewitt rights under the that can be obtained sale rights; plaintiffs’ any sale must be delayed being by a sale or plaintiffs, hindered subject to be made their since must complain against creditors in the rights, cannot (Bigelow on Fraudulent procurement 497, 498; 27 J. So far as Conveyances, pp. lands held cer in the school duly re mortgage, being involved, tificates sale levy priority over the as a real estate corded levy sheriff, indeed a sale made property is of ef mere certificates sale fect. 6370, governing
[7, mortgages, real estate 8] provides capable in real being may mortgaged. transferred, The interest be vendee under a estate, contract to real transferred, may terest hence *6 mortgaged. may Mortgages, ed., be Jones on 7th sec. 136; Tripler Co., 173 v. Cal. MacDonald Lumber Ky. Bank Baumeister, Louisville 170.) S. W. Appellant’s contention that such per good sonal as that the not against him, accompanied affidavit of because not the mortgages (C. S., required faith in of chattel case 6375), is based which defines taxation, equities purpose the land; classify purports only sec so but equities purpose. taxation, such for the and does not general change purport change the rule that the terest of a vendee under contract to land is a mortgageable real estate. The situation can not affected the the state, be fact rather than individual, vendor; same rule is the the has been held but (Jarvis apply to certificates of sale of state land. Dutcher, 16 Wis. improvements
[10,11] As to the on the land leased from the fix states no facts would the character of personalty Plaintiffs contend them. improvements these are Under some circum real estate. stances, they might property; prima but facie, be buildings part thereof, to land become a affixed showing, of other of them would require (Jones the formalities of a not chattel Frazell, Mortgages, ed., 123; Docking on Chattel 5th Kan. What the terms of were with lease improvements, reference to these or whether agreement there state and mort between the gagor thereto, with allege; reference does not nor facts pre- would overcome Bedal. Quirk
Points Decided. property. The were sumption such mortgagee presented as to whether thus question is through lack of affidavit chattels, where the creditors, may in this form good faith, is void rights claiming creditor as a of one action attack sustained. should have been The demurrer the cause remanded. reversed, and should J., Lee, Wm. E. Givens Lee, C. William A. JJ., Taylor, concur. adopted opinion hereby foregoing
PER CURIAM.—The is reversed and opinion of court. The as the lower court to with instructions cause remanded appellant. Costs sustain demurrer.
(May 29, BEDAL, QUIRK, Respondent, v. KATE CECELIA MARY al., PAYNE et NELLIE JOHNSON BEDAL, JAMES Appellants. Agent Estoppel—Pleading Principal
Attorney — and Client — Appeal Error —Execution Sale. —Quieting Title — properly permitted Plaintiff, quiet title, was in action to title, defendant’s made to her testify statements as to by defendant. attorney, was referred to whom she disputed fact on some person refers another Where one by answer him, is bound person answer he third to a made. fatal, estoppel pleading of deficiency in Technical objection made to necessary pleaded, and no facts are form. alleging quiet title, Complaint, in action to represented certain facts as to be represented caused demurrer, to admit special sufficient, title, notes concur- payment Perkins. To secure the rently Bundy and executed with their E. wife mortgage Wardrops, a real estate and delivered to the held including the lands certain their interest state, which sale from the under certificate of upon by sheriff certificate has been levied of sale including personal property, and under said execution dwelling-house consisting improvements, also the land, buildings, upon the leased farm located levied likewise the execution improvements sheriff has personal property. question was appears further that It April 12, on Bundy on and that by DeWitt obtained plaintiffs procured a decree March 29, decreeing all that real estate their be sold the lien appears from the thereof; but order exe- of foreclosure has not been under said decree of sale allege, however, the value of the Plaintiffs cuted. debt, pay property is insufficient