129 P. 640 | Idaho | 1912
Lead Opinion
— This action was instituted for the foreclosure of a vendor’s lien on 480 acres of land. The amount alleged to be due was $5,000 and interest evidenced by four promissory notes. Judgment was entered for the plaintiff and defendant appealed.
The assignments of error are too numerous to be taken up in detail, and, indeed, as we view them, they are all reducible to a few propositions which we shall group and treat briefly herein. It appears that J. A. Schultz, individually and as president and principal owner of the capital stock of the Farmers’ Store Co., had some dealings with respondent, Theodore ~W. Smith, and advanced him money and finally took a deed to the land here in question as security for the amount ■due from Smith to the Farmers’ Store Co. The business ran along that way for some time and finally they had a settlement, and it was agreed that in consideration of the amount due and the execution of the four promissory notes, aggregating $5,000, that Schultz should have the land, and that the deed which had previously been held as security should become an absolute conveyance and should be so regarded and treated. The notes were accordingly executed and the business transactions with reference to the sale of the land were thereupon closed. In the meanwhile, Smith seems to have been residing on the land at such times as he was in the county. On the other hand, he had been absent from the county a considerable portion of the time since the first transaction. About the same time, Schultz, who had been in the employ of the bank of Nez Perce, became indebted to the bank, and also the Farmers’ Store Co., of which Schultz was president and principal owner, became likewise heavily indebted to the bank. In settling this indebtedness, Schultz deeded the land previously acquired from Smith to the bank, and the bank subsequently conveyed the land to the appellant, O. M. Collins, who was president of the bank.
The following are the essential questions which are presented on this appeal and the determination of which will be decisive of the case: First, does the fact that the conveyance from Smith to Schultz, in the first place, was intended as a
Addressing our attention to the first question above suggested, it may be observed that there is no controversy or dispute but that the conveyance when first given by Smith to Schultz was intended as security, and, under the decisions of this court, was a mortgage. (Kelley v. Leachman, 3 Ida. 392, 29 Pac. 849; Felland v. Vollmer M. & M. Co., 6 Ida. 120, 53 Pac. 268; Hannah v. Vensel, 19 Ida. 796, 116 Pac. 115; Bergen v. Johnson, 21 Ida. 619, 123 Pac. 485.) The parties to this action, however, are confronted with a number of subsequent transactions which have become admitted facts in the case that necessarily change their relations to the original transaction. After the adjustment of the accounts between Smith and Schultz, an actual sale took place, and while no new deed passed from Smith to Schultz, it is clear and apparent from the record that it was the agreement and understanding between them that the original deed should stand as an absolute deed of a fee simple title from Smith to Schultz, and the deed on its face purported to convey a clear and fee simple title. All their subsequent dealings were had upon the theory and basis that this did convey a clear and perfect title, and the notes were given by Schultz to Smith on that theory and understanding.
The author in 20 Am. & Eng. Ency., 2d ed., 942, says: The voluntary surrender or cancelation of a defeasance or an instrument in the nature of one, as a general rule, renders the
In Green v. Butler, 26 Cal. 596, the court, speaking of this same principle of law, said: “Where a deed and defeasance are in separate instruments, thus constituting a mortgage, a purchase of the equity of redemption by the mortgagee from the mortgagor for its full value, and a surrender of the defeasance to the mortgagee to be canceled, and the retention of it by the mortgagee, is in law a cancelation of the defeasance, though not actually destroyed. ’ ’ To the same effect, see note to case of Bradbury v. Davenport, 55 Am. St. 105; Gravlee v. Lankin, 120 Ala. 210, 24 So. 756.
There is still another and equally valid reason why appellants cannot now urge that the original conveyance from Smith to Schultz was a mortgage only. They are claiming their title through this same deed. The law is well established that “a party cannot be permitted to claim under and against the same deed.” (Gibson v. Lyon, 115 U. S. 439, 6 Sup. Ct. 129, 29 L. ed. 440; 11 Ency of Law, 446.) Of course, the deed being absolute on its face, though intended as security, could have furnished a basis for innocent purchasers to acquire a valid title, but the title would not be valid if they had notice of the fact that the conveyance was only intended as security. If, on the other hand, they had no notice of the fact that it was intended as security only and purchased on the theory that title was absolute, and at the same time had notice that the original vendor had a lien on the property for the balance of the purchase price, they would not be allowed to subsequently deny the absolute character of the conveyance in order to defeat the vendor’s lien. They must adopt one theory and pursue that consistently and adhere to it as well when it proves detrimental to their interests as when it proves beneficial. It is clear to us that the appellants cannot urge at this time that the conveyance from Smith to Schultz was only a mortgage and did not pass a clear title.
The next and important question presented is the sufficiency of the evidence to show that the appellants here had either actual or constructive notice of the respondent’s lien as a
The evidence on the question of notice is certainly not satisfactory, but that is not at all strange. On a question of this kind, and in a case of this character, it is to be expected that there would be a sharp conflict in the evidence as to whether the purchaser had notice of the vendor’s lien. It is such eases that get into court. Where there is no conflict in the evidence, there is seldom any litigation. Our examination of the evidence on this point has served to convince us that we would not be justified in holding it insufficient to support the findings that the appellants had notice of respondent’s lien.
Another question has been urged on this appeal which deserves some consideration. At the time of the purchase of this land by Schultz, and his sale to the bank and the subsequent sale by the bank to Collins, there was an outstanding mortgage against the property aggregating about $2,200. This obligation was assumed by Schultz as a part of the purchase -price. Since that time Collins has paid the mortgage, and it is now claimed by him that if respondent is to be given a vendor’s lien for the balance of the purchase price that Collins should first be reimbursed for the amount he has paid out on this mortgage. The trial court did not take this view of the case, but; on the contrary, gave respondent a decree of foreclosure for the balance of the purchase price as repre
Finally, it is argued by the appellants that the trial court erred in allowing respondent judgment for attorney’s fee in the sum of $600 on foreclosure of this lien. This contention is made under specification No. 12 of insufficiency of the evidence to support the judgment, and is based upon the specific ground “that there is no evidence in the record showing that the plaintiff had paid or agreed to pay his attorney any sum whatever for the foreclosure of said mortgage, or that he was to receive any compensation therefor.” Two witnesses were produced and testified on the question of attorney’s fee and were cross-examined by counsel for appellants. No question was raised in the lower court as to the sufficiency of the evidence in this respect, and an examination of the evidence convinces the writer that it is suffieent to support the judgment for attorney’s fee. No question is raised in this ease by appellant as to the right of respondent under the law to recover an attorney’s fee in a case of this kind. The question is rather presented here upon the theory that the law supports such a fee, but that sufficient evidence has not been presented to justify its allowance.
In the opinion of the writer, the judgment should be affirmed as to the attorney’s fee, but the majority of the court are of the opinion that it should be disallowed and that the judgment should be modified to that extent. We conclude,
Rehearing
(January 29, 1913.)
— A petition for rehearing has been filed in this ease which deals alone with the question of attorney fee.
The court held in'the original opinion that the respondent Smith was not entitled to recover an attorney fee on the foreclosure of his vendor’s lien‘as against Collins and the bank. It is contended, however, in the petition that the attorney fee ought to stand as against the maker of the note, Schultz. Schultz did not appeal, and so the judgment as against him was in no way disturbed or modified by the opinion in this ease. It was not intended that it should be disturbed in any respect. The judgment as to Schultz will stand as originally entered in the district court, and the attorney fee will be disallowed only as to Collins and the bank of Nez Perce.
With the foregoing correction and directions, the petition will be denied.
Concurrence Opinion
Concurring Specially. — I concur in all that is said in the foregoing opinion, except that portion which deals with the question of attorneys’ fees. It will be observed from the record in this case that this is an action to foreclose an equitable lien. There is no statute in this state which allows attorneys’ fees in a case of this kind; neither was there a contract entered into by the parties involved which provided for the payment of an attorney’s fee upon foreclosure of said lien, or to pay an attorney’s fee under any circumstances.
Justice Ailshie sets forth the evidence introduced upon the trial with reference to the attorney fees, and holds that such evidence, in his opinion, entitled the plaintiff to recover an attorney’s fee. I am of the opinion that the evidence is sufficient to justify the allowance of an attorney’s fee, provided there was a law which allowed such attorneys’ fees or a contract made providing for the payment of attorneys’ fees. There being no statute in this state which allows such fees, and no contract having been made, no fees can be allowed in this case, notwithstanding the evidence that was given. The attorneys’ fees cannot be recovered because there is no law authorizing the same, and not because of the insufficiency of the evidence.