Suchan v. Suchan

741 P.2d 1289 SUCHAN,

Carmen Estelle

Plaintiff-Appellant,

v. SUCHAN, A.

Defendant-Respondent, Suchan, Myra

Frank Suchan and

Intervenors-Respondents. SUCHAN,

Carmen Estelle

Plaintiff-Appellant,

v. Suchan, Joyce

Frank SUCHAN and Helen wife,

husband and and Minidoka Coun- Sheriff, Jarvis,

ty Ray Su-

chan, Defendants-Respondents. SUCHAN,

Carmen Estelle

Plaintiff-Appellant,

v. SUCHAN, Suchan, A. Frank Suchan, Myra

Defendants-Respondents.

Nos. 15512 and 15143.

Supreme Court of Idaho.

March 1986. Rehearing July

On Smith, Burley, K. for Carmen

Richard Suchan. Duff, Frank Rupert, for

Larry Robert and Helen Suchan. Creason, Jr., Rupert,

Charles H. Sheriff Jarvis. Rupert, George Su-

Roger Ling, D. chan. Goodman, Rupert, Frank and

Alan C. Myra Suchan.

HUNTLEY, Justice. magistrate court entered 22, 1982 divorce on March and decree of marriage twenty-eight year dissolving the After and Carmen Suchan. pro- George and Carmen hearing in which posed distributions of the to cover amount of judg magistrate ment, entered document entitled costs of damages resulting “Partition on March appeal. Order” At Car- request attorney magistrate men’s sup had drafted the order issued a plemental $445,844.40. granting order to the order party stay awarded each a value of of execution provided which Carmen’s mon George personal property, was awarded ey judgment eigh would accrue interest at including plus farm equipment, all the com- percent per teen year from the date of the munity property. George was directed partition $100,000 order to the date of the debts, to assume all including payment. mortgages the outstanding on the real August 30, On 1982 district court property. explicitly The order stated judgment, decree, affirmed the divorce magistrate George court’s intent that have partition George appealed order. to this possession proper- immediate of all the real Court, affirmed district court in ty farming. so he could continue Suchan, 654, Suchan v. 106 Idaho 682 P.2d The order awarded Carmen various items (1984). equipment personal farm and other 8, 1982, Carmen, On having November George pay directed Car- (or money George received no his $373,739.40 men essentially representing promissory mortgage) note or obtained a the value of community property writ George’s of execution the sale for in the land farm awarded to personal real and property. Carmen George. $100,- George pay was to Carmen sought payment initial plus of the days 000 within forty-five of the order and eighteen percent annual interest on the en $273,739.40 pay twenty balance of $373,739.40 10, tire award of from May installments, annual percent twelve 1982 date of partition order to the date annual required interest. The order $100,000. payment of the Notice of the George to promissory execute a note for published execution sale was with the sale balance, by mortgage a secured on all 15, date set for December 1982. On that the real property awarded him the or- date the place, sale took the face of der.1 George’s inability why to show cause lenders, After contacting George various sale proceed inability should not and his $100,- could not obtain loan to make post supersedeas a bond. payment forty-five day within the limit. $60,552.50 brought The sale for court, 8, magistrate 1982, on July is- George’s machinery farm and his 868 sued why an order to show cause as to George acres. the sheriff directed to sell George in contempt should not hold parcels. George’s the land in seven broth- $100,000, for nonpayment his and er, Suchan, bought Frank 820 acres in six why payment immediate should not be or- $13,500, parcels subject for a total of dered, require even if that would immedi- outstanding Amalgamated mortgages. ate sale of property. the real filed Sugar Company bought parcel the seventh stay proceedings upon a motion to further $28,000, assumption its subject to judgment partition order. He ar- certain indebtedness. The sheriff returned gued irreparably injure a sale him. the writ of unsatisfied. execution magistrate July sale, forty-eight Within hours of the

granted stay pending execution a George quitclaimed right redemption parti- to his the real executed However, mother, brother, Frank, required Myra tion order. the court and his Su- chan, $2,000. supersedeas post bond of for a total of a The title of Order" was somewhat of the real estate. “Partition partition a did not effect a misnomer in that it later, quire mortgage George to execute a after on December About week sale. court also the execution The district prom- presented to grounds refused to vacate the sale on note, security other issory equity. Appeal No. law or 15460 arose signature. George re- for his instruments from that decision. grounds the fused to execute them on the any mort- him of execution sale divested Before the district court entered lat- property. he gageable interest opinion, petition for writ ter Carmen filed response sought to have co'mplaint of mandate and an alternative contempt summary held in quiet title and moved requiring his execu- The dis- judgment respect a court order with to each. to obtain ruling that the prior trict court held the magistrate The tion of the documents. 1983, partition conveyed order Carmen’s one-half 4, court, February in an dated order community property George interest to George contempt re- was not in held dispositive issue in favor of sign him instru- require fused to to George. respect quiet With to the title ments. action, the decision from which case No. 24, Meanwhile, 1983, January Carmen on mortgage had 15460arose held Carmen no began proceedings also for vacation property sold interest in the at execution. inadequacy price cou- execution sale for The district court ruled it therefore pled irregularities in sale. alleged could therefore not followed that Carmen 1, 1983, April magistrate de- On court 11-401(2). redemptioner be a under I.C. § motion. nied Carmen’s Finally, held the district court Carmen had $273,- judgment subsequent lien no 25,1983, brought an January Carmen On remaining had 739.40 due after she exe- in independent action district court. She upon George’s cuted land for the initial alleged his George fraudulently conveyed $100,000 payment. Appeal No. 15512 statutory redemption proper- in right of rulings. arises from those Frank, brother, to ty sold execution his mother, Myra. The court district (both initially again held on reconsider- APPEAL ISSUES ON ation) Carmen could no have interest presents This the issues of whether case George’s right redemption and therefore (I) interpreting erred in: the lower courts standing allege lacked to its fraudulent partition immediately order as itself conveyance. designated The Su- respon- conveying property certain real to preme Court No. 15143 arose from that judg- ruling had no dents and decision. property after ment lien in the real its sale; (II) refusing to vacate the execution appealed Carmen then to the district property on an execution sale based magistrate refusal court from the court’s inadequate price coupled with ir- allegedly vacate the execution sale and its refusal sale; (III) ruling appel- regularities in the George a to order to execute note mortgage prop- in the equitable had lant mortgage. The court affirmed the district sold; (IV) ruling appellant held no erty ruling partition magistrate court that the mortgage respondent’s statu- interest immediately conveyed Carmen’s undi- order (V) right determin- tory redemption; in- community property real one-half vided appellant redemptioner with ing was not a money a terest and awarded sold. respect property held The court also to Carmen. no interest in the real Carmen had INTEREST IN I. CARMEN SUCHAN’S divested

sold at execution sale AT THE REAL PROPERTY SOLD mortgageable interest EXECUTION parti- property awarded him under the real sale, no mort- Suchan tion order. Because After the execution interest, gageable sought, magistrate re- an order the court could not 106 cause to why George hand,

show Suchan other interpretation unambig of an contempt should not be refusing presents held uous question document of law. Suchan, 660, to execute mortgage securing v. 106 Idaho Carmen’s Cf. (1984) 682 P.2d (contract case); 613 alleged in all interest the real property Beal v. Corp., Inc., Mars Larsen Ranch George by partition awarded order. 662, 668, (1978). Idaho 586 P.2d The partition $273,- order directed that the portion 739.40 owed Carmen be reduced to Determination whether a document is promissory note and “secured a real ambiguous question is itself a of law. Cf. estate all of the real Park, Pocatello Industrial Co. v. Steel Defendant____” (Empha- awarded West, Inc., 783, 789, 101 Idaho 621 P.2d added.) magistrate sis interpret- (1980) (contract case). We now partition provisions ed the turn to having order as those immediate- awarding ly conveyed Carmen’s undivided Carmen’s one- one-half community half real interest they determine ambiguous. whether are George. magistrate found that all the McLaughlin, Rutter v. 101 Idaho real property George by awarded to 135, (1980) (contract case). 612 P.2d 136 partition order had been sold. Since the strenuously argues conveyance property real awarded to by of Carmen’s interest to was “sub partition order was Carmen’s one-half to,” ject upon, George’s pay conditioned community interest, property real mag- $100,000, ment of the initial and his execu necessarily istrate partition determined the $273,739.40 tion a promissory of note for conveyed order had property to mortgage and a interest in all the real (The George. magistrate concluded property George by parti awarded to George had property no real interest tion order. following Carmen cites the lan give which mortgage interest.) to Carmen a guage of the order: [George] The Defendant is awarded as A. INTEREST separate CARMEN’S property his sole and the follow- BEFORE EXECUTION ing real subject payment estate of outstanding thereon, encumbrances Supreme In Court No. 15460 Car payment security provisions and the argues magistrate men court misinter required hereinafter by be made him preted immediately order as for and (Empha- on behalf of Plaintiff. conveying community Carmen’s prop real added.) sis erty George. interest to The standard of our magistrate review of the courts’ inter goes identify security The order on to pretation depends upon provisions whether the order referred to above: ambiguity. contained an rules con DEFENDANT IS ORDERED TO PAY struction of contracts and written doc $100,000.00 PLAINTIFF: the sum of general interpreta uments in apply to the (45) forty-five days cash within tion of City court orders. Evans v. date this order. The balance of the Falls, Idaho, 7, 18, American 52 Idaho 11 community Plaintiff’s interest the sum $273,739.40 (1932); Estate, paid P.2d shall 363 In re Callnan’s 70 be Plain- 250, [George] tiff the Defendant Cal.Rptr. Cal.2d 74 449 P.2d 186 [Carmen] installments____ twenty (20) annual (1969); Fidelity Byrne, Union Trust Co. v. promis- The balance shall be reduced to a N.J.Super. (1962). 76 184 A.2d 163 sory note real secured estate Interpretation ambiguous document real on all the award- presents question of fact. Roberts v. Cf. [George]____ (Em- ed Defendant Hollandsworth, (9th 582 F.2d Cir. added.) phasis 1978) (contract case); Co. Pollard Oil v. Christensen, 103 Idaho 645 P.2d unambiguously Carmen asserts the order (contract (1982) case). George’s On receipt the makes inter- Carmen’s to,” language the reasonable in- “subject This allows est in the real immediately terpretation that the order is, making upon, George’s first conditioned conveyed community one-half Carmen’s executing payment George, though real interest However, mortgage. the first note and yet executed a note and makes the provision quoted above also mortgage in favor of Carmen. interest award of Carmen’s outstanding payment of all “subject to the order, neg- language Additional ____” out thereon These encumbrances implication, suggests the did ative primarily standing encumbrances consisted George’s receipt not condition of Carmen’s $100,000. totaling mortgages over community real contend, and the record no parties do not George’s and mort- execution of note suggests, George’s payment in where gage: outstanding encumbrances full of these payment IT that the IS ORDERED down receiving was a condition to ordered, $100,000.00, hereinabove this, light property interest. $30,000.00for the home shall include the language “subject to” conditions awarded to the Plaintiff as and [Carmen] retention, receipt, rather than his of Car for the lien thereon. The upon George’s payment of men’s interest shall, accordingly, ex- Plaintiff [Carmen] outstanding prop encumbrances on the quitclaim ecute and deliver a deed con- “subject language erty. Since the to” also separate property upon veying the applies George’s execution of the mort the home is situated to the Defendant gage, magistrate likely in and since the [George], upon receipt the of the down “subject single to” to mean tended have a delivery payment and of the executed ing, reasonably interpret the order can be mortgage doc- note and and related sales retention, conditioning George’s ed as rath added.) (Emphasis uments. receipt, community er than his of Carmen’s expressly conditions provision This upon George’s interest execution of the George’s receipt of interest Carmen appropriate at some time in the might George’s separate real have had (such future as after the initial property upon George’s execution of the payment). mortgage. Nowhere does the or- note and George’s receipt of language suggests expressly der condition Other the order community Carmen’s interest real issuing convey court intended the order to George’s property upon execution George immediately, Carmen’s interest to mortgage. suggests This note and prior George’s and therefore execution drafter intended to omit the execution mortgage: of the note and mortgage as a condition to the note and IT IS ORDERED that the undivided one- community George’s receipt of Carmen’s (V2) half interest of Plaintiff [Carmen] property interest. real [George] and Defendant in the communi- hereto, ty property parties as de- one foregoing discussion shows judgment in the and decree of di- creed partition or reasonably interpret the could March, day vorce filed on the 23rd note requiring der as to execute a 1982,be, partitioned and the same is mortgage in of Carmen as either favor subject hereto distributed George’s receipt of Carmen’s a condition to to the conditions and terms as set out interest, community property or mere real required herein. ly retention as a condition interest, immedi after the order had [George] order, The Defendant has received being ... ately conveyed it to him. The provisions partition, conflicting interpreta under the of this reasonably subject to estate____ (Emphasis tions, McLaugh ambiguous. of the farm real Rutter v. 292, 293, 135, added.) lin, 136 101 612 P.2d Idaho 108 (1980)(contract case). On review we must being that was subject sold accept magistrate therefore court’s in continuing Carmen’s lien. Carmen certain erroneous, terpretation clearly par unless ly judgment had a lien in prior the property ticularly interpreting where he is his own to pro the execution sale because her lien 52(a) (1983); order. I.R.C.P. Rueth v. very vided the basis for the sale execution State, 74, 77, 103 Idaho P.2d 644 1333 (1982); itself. I.C. See 10-1110 11-101 §§ (1982); Smith, 104, Javernick v. 101 Idaho (1982); (1982); 11-104 (1982); 11- 11-201 (1980). 609 P.2d 173 (1982). language provides order’s substan- However, the Idaho Code Car entitled

tial, though conflicting, evidence that the judgment men to a lien in magistrate court intended the order to im- debtor, judgment George. See mediately transfer Carmen’s (1982). I.C. 10-1110 judgment Since George. § interest to nothing statute, directs our liens attention to are creatures of Carmen’s making interpretation clearly record rights adjudicated must within the stat erroneous. utory Burns, Messenger framework. v. 26, 29, Moreover, (1963). Idaho 382 P.2d 914-15 magistrate interpreted consistently general George’s property with the rule Once was sold at execu documents, ambiguous, written if tion and the certificate of sale deliv against should be construed drafter. purchaser, conveying ered to execution Morgan v. Firestone Tire & Rubber Cf. him, legal title then Carmen lost Co., (1948) 68 Idaho 201 P.2d lien sold. (contract case). attorney drafted (1982); 10-1110 Petty, See I.C. Petty v. § light order. of this factor 473, 478-79, 70 Idaho 223 P.2d 160-61 preceding analysis order’s (1950). language, magistrate we affirm the court’s Furthermore, interpretation Carmen levied execution immediately the order as vesting Carmen’s George’s property farm in on for satisfaction of his George. $100,000plus By matured debt interest. interest, her to bid plus failure the 15512, Supreme In Court No. Car preserve judgment Carmen did not her lien argues men the improperly district court Therefore, for this amount. she judicata retained estoppel invoked res and collateral bar litigating her from the issue of no lien in sold at execution. partition immediately whether order It should also be noted that re conveyed in community real $273,739.40 maining debt had not ma George. terest court The district said time tured at the of the execution sale. finally the same issue fully had been (The partition order contained no acceler litigated by magis the same in the clause.) Hence, remaining ation debt opinion court. magistrate trate The court’s judg could have been the not basis of a is discussed magistrate above. The court ment lien in favor Carmen at the time 4, 1983, opinion in its February dated held Furthermore, by execution. the time partition conveyed the order of and vested $273,739.40 of the debt initial installments George all in in of Carmen’s interest due, debtor, George, became property. Since we found this conclu have sold previously had in the no interest land evidence, supported by sion we substantial at Carmen could not have had execution. affirm the district court’s decision longer by lien in owned Supreme appeal designated which judgment debtor. I.C. 10-1110 No. 15512 See arises. § (1982). B. STATUS OF CARMEN’S

JUDGMENT LIEN AFTER EXECUTION SALE II. EXECUTION SALE Supreme In Court No. prior attorney Carmen’s announced argues the execution of real reversal of the district court’s parcel sale of each

109 magistrate court’s refus- Real at execution must sold affirmance She as- parcels. al to vacate the execution sale. lots known or I.C. 11-304 § inadequate price grossly sale cou- (1982). serts the indicating land factors does irregularities requires pled sale parcels not lots or consist known include of the sale. vacation contiguous; land fact the is owned and tract; or marks farmed as one alleged ir focuses on two circumstances are not available to 'distin First, regularities. alleges pro she she Curts, guish one lot from another. 45 laboring un ceeded with the execution sale 424, 262 at 880. In the instant Idaho at P. interpretation der of the an case, although contiguous, the land was courts, rejected by the all to subsequently had leased out and farmed several However, misun her detriment. Furthermore, parcels prior occasions. though derstanding legal rights, of her un magistrate found boundaries court fortunate, irregularity an sale not parcels by survey were established ‘itself, represent particularly since she was county markers as well as farm and roads. stages. ed counsel at all itself, The notice of Car sale drafted irregularity alleged The second Car- counsel, land in men’s described the five irrigated men is that a 494 acre farm tract separate parcels, land was sold single in several 160 from a well sold parcels. those same parcels, all one of lacked an acre but parcels Carmen also asserts several were This, independent source of water. com- is, economically units, viable units alleged grossly inadequate bined with adapted separate enjoy- and distinct justifies price, according vacation sale ment, they independent lacked because wa- Carmen. However, George ter sources. announced general, gross inadequacy price parcel lacking sale each before the irregularities coupled with in the sale war supply arrange- independent water Neal, vacation. v. 77 rants Gaskill Idaho parcels ments would be made to- 428, 432, (1956); 293 P.2d 960 receiving continue water from the central Curts, Spokane Land v. Federal Bank of price. George well for a reasonable (1927). 262 P. Idaho arrangements such with lessees of made Whether to set aside an sale lies execution parcels prior portions very same largely within the trial court’s discretion. result, years. magistrate As a Gaskill, 77 Idaho at P.2d parcels found the 160 acre were farmable In the both sher Gaskill Curts competent there is substantial units and conducting iff the execution sale sold the support that find- evidence record unit, parcels, property in rather as a than ing. persons at the direction of not authorized parcels adapted sepa not for general, In the of direct manner and order sale. enjoyment be sold rate and distinct should irregularity Each court held this to be an in However, 11-304 if as a under I.C. unit. § case, George, In the instant the the sale. sale party directing the the order of can debtor, directed order of sale execution the particu the intelligible in an manner show express statutory the au parcels under profit way property lar the can be Gaskill, (1982). In thority of I.C. 11-304 § ably parcels, general rule the will sold in. garage lay partly a on each of house must follow his apply not and the sheriff parcels sold. factor the two No similar Gaskill, 77 Idaho at 292 directions. exists in this case. The sheriff Gaskill the sold without P.2d at 960. Three of lots ignored improperly the and Curts also no en independent an water source highest the and instead bid offered at sale might rea cumbrances them. irregular accepted a much lower bid. This case, of unencum sonably have believed sale ity did not occur in the instant where parcels would re accepted only highest property bid. bered the sheriff bids, highest possible suit in the while mini- say magistrate not court abused its mizing property the amount of sold to sat- refusing discretion in to vacate the execu- isfy Selling parcels prob- Carmen’s lien. Gaskill, tion sale. 77 Idaho at placed ably parcels also individual within a P.2d range

price of more bidders. Greater num- reasonably expect- bers of bidders could EQUITABLE III. MORTGAGE Therefore, ed to increase bid amounts. partition Carmen asserts the order en- parcels, sale in parcels even if those were mortgage titles to a in all interest adapted separate not enjoy- for and distinct property real George by awarded the order. ment, a selling reasonable means of The order directed to execute a Hence, profitably. the land ir- it was not and mortgage note in favor of Carmen Gaskill, regular. 77 Idaho at P.2d $273,739.40. George the amount of never at 960. mortgage. executed the note brought asserts sale a A mortgage interest can exist inadequate grossly price, which when cou property capable in real being transfer pled irregularities, alleged with the re (1982-83). I.C. red. 45-1001 The execu § quires Gaskill, us to set aside sale. tion sale divested of all the real brought $11,000 the sale $426.12 worth partition awarded him the or property, percent less than four der, except right of redemption. He Curts, ignored value. In the sheriff a bid conveyed away two days after the $8,700 (suggesting a minimum value sale. Since has land) and accepted a $300 bid for 240 him, awarded he cannot be land—again acres percent less than four compelled to mortgage execute value, conservatively assuming property. land was worth at least as much (The ignored bid. ignored sheriff the bid argues in the alternative because it was written and the bidder was equitable mortgage. magis for an If the present at the sale. The court held partition trate intended the order of bid.) accepted sheriff should have mortgage, to create a which later turned issue, At the sale in Frank Suchan ineffective, legally eq out to be then an bought 800 acres for and assumed mortgage might uitable have arisen. The $59,000. outstanding mortgage of This prerequisites equitable four of an mort $71,000. purchase price made the effective (1) gage are: intent court to create a appraised While the land had been at the (2) debt, amount, mortgage; definite in $680,000, time order at mortgagee; from the mortgagor due evidence the value at the time of sale (3) parcel a definite of real put $300,090. the value at about Several (4) attach; which the can explain factors could purchase the low mortgagor has an interest in the (1) price: irrigation permit allowing water mortgaged. capable being Pulp Orono (though 480 acres 494 were acres States, Paper Co. v. 34 F.2d & United fact); (2) in irrigated depressed market (D.C.Me.1929); Waddell, 717 Barnett v. land; (3) prices farm rock outcroppings (1946); Ala. 1 248 27 So.2d Dick See land; (4) on attorney the fact Carmen’s Heston, ens 53 Idaho 21 P.2d 90 v. prior parcel announced to sale of each (1933). A.L.R. being subject that it was sold to Carmen’s lien; continuing (5) language the fact forced We look to commonly produce sales prices. partition gather issuing low In order court’s to light of these factors relevant to the ade- intent. The order instructed quacy price, and Carmen’s failure to “The balance after the initial Carmen [due prove any sale, irregularity $100,000 payment] we can- shall be reduced to a

HI remaining judgment amount of by a real Carmen’s secured note ... promissory $273,739.40 any realty in awarded property mortgage on all the estate remaining after the partition [George].” the Defendant awarded sale, right redemp- such as his execution certainly intended that issuing court tion, according to Carmen. future mortgage at some George create a $100,000 time, payment. after the such as transferable, it is property is then If real However, language of the order neither the (1982); 45-1001 Ev mortgageable. I.C. § existing the time nor the circumstances Humphrey, 51 Idaho v. ans preparation support the conclusion of its (1931). Carmen concludes that P.2d 545 par magistrate court intended the that the redemption, transfer George’s right of mortgage. itself to create a tition order right, subject to her able exe directed Instead the order However, previously as dis interest. mortgage instrument which would cute a cussed, right re George transferred his mortgage. We therefore itself create executing any mortgage prior demption magistrate and decisions of the affirm the longer no had an in of Carmen. He favor finding not entitled courts Carmen district mort give Carmen a mortgage. equitable to an Furthermore, is not entitled gage. Carmen previ equitable mortgage for reasons

to an Therefore, Carmen had ously discussed. INTEREST IN IV. MORTGAGE right of re mortgage interest GEORGE’S STATUTORY RIGHT George conveyed away. demption which REDEMPTION OF brought In district court Carmen suit REDEMPTION V. CARMEN’S RIGHTS George fraudulently conveyed his alleging right redemption in statutory the real redemp asserts she has Carmen sold at execution. con- sold at rights in the real tion brother, Frank, right veyed that to his applicable The statute to this execution. mother, Myra, days within two after says: issue response the execution sale. to Car- Redemption 11-401. entitled —Persons suit, George summary men’s moved Property subject sold to re- to make.— judgment. 11-310, demption, provided in section any part separately, may sold be re- le- The district court reviewed Carmen’s provid- deemed in the manner hereinafter right gal rights she had no and determined ed, following persons, or their levy upon George’s right redemption. in interest: successors Absent an interest Carmen right, conclud- redemption the district court allege standing

ed had no fraud- Carmen judg- having a lien 2. A creditor right conveyance redemption ulent sold, mortgage on the ment or granted George’s summary motion for thereof, part subse- or some share or judgment. quent to that on which sec- persons mentioned sold. The Supreme Court No. On are, in this of this section ond subdivision decided the district court Carmen asserts chapter, redemptioners. termed argues legal wrong issue. right may had a although she not have order’s dis- argues George’s redemption right, pay- levy initial tinction between trial, $273,739.40 had a she nevertheless decided ment and the amount by a mortgage twenty years in it. reasons and secured paid over sepa- levy upon mortgage constituted two sale involved a note and that the execution award of judgments. She asserts the only for the initial rate land $273,739.40 subse- judgment was a payment plus still had an interest. $100,000. securing quent the award of obligation to execute a $100,- sale, order identifies the 000.00 realized from the sheriff’s $273,- $300,000.00 payment” judgment 000 as a “down and the a her ex-hus- terms 739.40 as the “balance.” These are probably judgment proof. band who is generally identify parts used to different application Such is far from an ideal of our single identify judgment, judg- not to two system justice. Furthermore, proceedings ments. be- hindsight, With the benefit of 20/20 it is consistently low refer to Carmen’s interest my judge, belief that the trial when it be- money judgment. as “a” lien or “the” came obvious that disaster was about to lien, Therefore Carmen had one strike and make a shambles of his intended one which she executed. She had no liens results, should have seized control of the separate subsequent from or to the liens situation on his own volition and revised upon. she executed She is therefore not a judgment and amended the in such a man- 11-401(2). redemptioner under I.C. § adequately implement ner as more respondents. Affirmed. Costs to No at- hopes parties of the intention torney fees awarded. the court. If the could not in fact approaching

be sold for a sum even valuation, original then an amended decree DONALDSON, C.J., SHEPARD, judgment should have so modified BISTLINE, JJ„ BAKES and concur. money payable. amounts of The court SHEPARD, Justice, concurring. might in an amended re- specially have quired through to be sold opinion majority I concur in the of the process other than a sheriff’s sale where parties since the attitudes of the and the price undoubtedly severely further interposition property rights now might depressed. At the least the court have, view, parties my made third possibility have considered the of division disposition impossible. suggest, I other kind, the real much as the however, day in that this is a black equipment the farm in kind court divided history justice the state of Idaho. aforesaid, parties. between the While as seeking parties came to the courts this Court has the benefit of 20/20 hind- valued in divorce and a division sight, I cannot but that a believe better vicinity It was of one million dollars. justice result reflective of could have been parties, clearly the intent of the and the obtained. equal object of the to obtain an divi- community property. The court sion of the REHEARING ON intended that the defendant husband be property so he could awarded the real I business, farming continue in the pay should the defendant husband Rehearing Appellant’s hav- Petition the real plaintiff wife half the value of argument hav- ing granted, and oral circumstance, probably property. Froward held, continues to ad- ing been the Court parties, compounded by the attitudes expressed in the Court’s here to the views attempt justice. to do defeated the court’s opinion issued March record, hus- As I view the the defendant is left with none of the erstwhile band II community property, and has an outstand- is aware that the The Court against him in amount of ing judgment procedural into a have themselves $300,000.00 worked of his approximately favor which, coupled with the col morass when The former wife is left with ex-wife. agricultural as lapse in market value farming equipment, one-half share of result sets, brought an end has about approx- of the divorce at valued at the time $60,- detrimental many respects was $60,000.00, which in imately approximately achieving equitable end of a more dis- period the the parties. Given substantial both original Given elapsed position assets. that broad which since the of time has the trial can power, in court undo what has magistrate judgment court’s entry of the aptly day as “a black matter, been described may well there have which, history justice in the state circumstances, of Idaho.” change in substantial agreed, agree IWhile have and continue to were able to re-evaluate if the trial court agreed I have portrayal, with that never might impel court to judgment, the the that the was with the intimation trial court origi- modify disposition the of assets in its fault, solely at and “should 'seized have a more judgment nal in order achieve of the situation on his volition control own in this equitable disposition assets in judgment amended the and revised and matter. adequately more such a manner as would cir- Accordingly, in view of the unusual the the implement hopes case, equity upon is- cumstances in this If property court. the intention in these suance this Court’s remittitur in even could not fact be sold a sum magistrate have appeals, the court shall valuation, original then an approaching the any days to jurisdiction for ten entertain judgment should have amended decree and judgment to alter or amend the motion money payable. the amounts of so modified herein, 59(e). pursuant I.R.C.P. In the might judgment in an The court amended or amend event that such a motion alter required sold have filed, timely magis- judgment is and the process than through a other a sheriff’s same, deny court shall such trate undoubtedly price se- sale where non-appealable and the of denial shall be At verely depressed. further the least final. judgment this matter shall become might possibility considered the court have However, in a motion the event such kind, of the real of division judgment timely alter or amend equip- as the court divided farm much filed, rehearing court on such the trial parties.” If kind ment in between herein, then judgment alters amends clearly is to be it should placed, blame any judgment appeal- entered shall be new be, evenly each and spread it should be on 83(a). provided in I.R.C.P. able as parts judicial component all of the also, rehearing respondents; part, on on system, Costs but smaller attorneys although they have to attorney fees allowed. who exists, enti- system as it are still take system cry appears out tled to when DONALDSON, BAKES and malfunctioning. HUNTLEY, JJ., concur. echelon, here, top Starting at the Su C.J., SHEPARD, only in concurs (1984), 654, I, P.2d 607 106 Idaho chan Part I. taken appeal we heard was which 1982, 10, December George Suchan on Justice, BISTLINE, dissenting. appellate decision from a district court fully though Even I am convinced affirmed the di August which doubt, Suchan, is still beyond by Judge Don entered decree earlier vorce Workman, August of the one-half undivided the owner of all ald Robert 1982), (modified dividing property of all of the real April one-half interest holding decree certain proceeding, was awarded in a divorce (other un I, community property than a divorce entered her one-half transmutation. in which she transferred der the doctrine of tract Co.), court to district magistrate I com- Amalgamated Sugar That conferring May majority for court was filed on mend those in the supple decisionwas appellate trial court to entertain district jurisdiction upon the opinion by an written toward mented additional its motions to re-evaluate 29,1982. appeal October this Court personal real and property, and was filed December 1982. The Notice was and of itself a final decree when Appeal purportedly appealed directly appealed it was to the district court. In from decree, the trial court supple divorce us, that record before observed, had it been findings mental trial court page conclusions very was the Order of Partition 14, 1982, April Supplemental and a Or which we eventually review in Su- granting execution, der to Order stay II, case, chan order, and it was that 30, 1982, July dated alone, and the district court’s and it causing which was and would appellate decision. continue procedural to cause “the morass” into which this Court now states that the The briefs in appeal that first to this parties brought have gave themselves. We Order, Court discussed the Partition but it. consideration whatsoever. thereon, raised no issue and the Partition Order appealed had not been to the district Even absent a by George motion court, might thought have been order, in this stay Court for a there was prerequisite Court, a appeal to an to this enough extraneous matter in the clerk’s unless we considered the apprise Partition Order as order to us that there were motions appendage of the divorce decree and and orders both the trial court and the judgment proposition never raised appellate time, district court all at the same —a discussed. and that the likely happen- same was still ing jurisdiction when and after was vested short, page there was in the 207 in this Court. The just Partition Order had appeal, great record on a amount of fur- days been entered three filing before the proceedings ther which were taken in the appeal magistrate district court from court, appellate trial and then in the district court, and hence was on file when the nothing which had to do with the jurisdiction of the district in- court was single presented issue to us in Suchan I. by voked appeal. the notice of That largely voluminous volume of extra- matter, together neous Judge comments After Bruce resumed or assumed by parties, the briefs counsel for jurisdiction appellate both was of the case as an dis- apprise sufficient to judge, this Court that trict rather than as a trial district reviewing decree divorce which we were judge,1 pending and while the him, had not actually distributed July what had been before under date who, Judge responsive 1. It was Bruce pleading quickly when Carmen’s com- was filed. A plaint magis- August was filed in district court and not filed Carmen on 21st. thereof, later, Temporary trate division issued a Re- Over three months on November straining prohibited George by Judge Order which an order Bruce was entered interfering Workman, parties’ assigning Judge magis- with Carmen’s control of the the case to children, home, trate, previous three ordered out of the who had had no connection with entering loitering Judge presented and restrained him from it or Bruce the case was entered. Judge near it. Bruce also issued the usual Or- a case no reason for his decision duck out of der to Show Cause in connection with the Tem- presided which he had over from its commence- porary Restraining ensuing Order. At a November 5th ment for the 13 months. It is surmised hearing Judge Temporary before Bruce the Re- do that he did so because he was asked to so effect, straining Order was continued to be in judge, the senior district as the order intimates. pay support. was ordered to child Why, goes unanswered. separate ways, went their but had Judge Workman met with counsel on Decem- reconciliation, attempt mutual desire to 23rd, ber and a trial date was set for mid-Febru- agreed engage counselling. ary days 1982. Evidence was taken over three hotly custody, and on contested issues of child sought sup- Nine months later Carmen child Workman, Judge days prepared six later port per $600 over and above the month earlier findings, ordered, own conclusions and agreed to and it was inade- because visitation, custody, support. child quate employment child after she lost her at Sinclair children, Shutters, custody Carmen was awarded and had been unable to find other Bruce, order, findings Judge hearing Workman’s and conclusions work. early set a hearing fully explained why. August, following in- $1,000. Shortly prepared and support Less than two weeks later he creased the child thereafter, George’s complaint findings filed his extensive and conclusions rela- answer to the

H5 to, Judge did, attorney an order from was directed and write Carmen obtained George Judge signed. required to the order Workman Workman which show which punished Again language by why he should not be for similar was selected cause having George’s attorney: contempt complied in not court which had not with the Partition Order having A Judgment duly granted been appealed specifically, from but which been and entered the above entitled action parcel of di- necessarily part was and the on and March an Order of judgment decree and order that it vorce having duly granted been Partition appeal pur- could be considered final pursuant Judg- and to entered said considered, poses. Unless it was so the day of May, ment on the 10th ... jur- did not appellate acquire district court added.) (Emphasis Only if Partition isdiction. the Order was proceedings all It was “Ordered that appellate so considered did the court have Judg- part plaintiff the under said court, so, jurisdiction, but if then the trial by ment for payment money the defend- Workman, Judge jurisdiction did not have plaintiff community ant to in the divisionof than to issue a other writ execution for property stayed pending appeal.” such $100,000 monetary award of the motion, however, had incorporated in the which was Partition sought the payment of which Order. Counsel who had taken over pay required to under the Par- was George’s representation so understood. Order, simply attempting tition was to but retaliating against the issuance of June the gain possession machinery and order, contempt a stay he moved for equipment had been to which awarded using language: this Order, by the and Partition which defendant COMES NOW the use, allowing his continuing was and Suchan, A. the and moves court for an own sons use. She wanted to sell it to proceedings staying upon Order the payment meet a on home she had down Judgment appeal- and Partition Order agreed buy. by pursuant ed defendant to Rule 62(d) 83(i), us and Rule Idaho Rules of Civil There was before sufficient reason This Ap- Procedure and Rule 13 of the Idaho take some affirmative action. Rules, thought by pellate relating to the dis- fortified the additional fact sale or is position I was on first level separate and that when its court, property Judgment appeal to the district counsel said and Order apply obtain a pertain plaintiff to the real Suchan did and grounds stay the execution. In turn and defendant on the and for order of stay expired appel- court reasons in re- after the district that substantial issues further gard said late entered. On the character of decision was appeal court from the district the ultimate division of the taken to this therefore affirmance, stay requested, was parties the divorce continuing proceedings below irrep- have been raised interpret magistrate required to done to was arable harm could be defendant Order, plunge into disposition or the Partition involuntary sale way. during pendency morass well under the said was appeal. of said Moreover, beyond of concern on and case, excuse particular there no valid Both motions were heard the same for, which time, granted, tolerating system allows only George’s and for but divorce, judgment and decree of presented property, bodied in a as to tive to issues separate parcels, It was prepared of all its status as com- Workman. value also machinery, equip- munity, ment, many assigned items of monumental task including personalty numerous other him. policies em- insurance. All of this was life here, a divorce action partly to be handled The trial court may well consider that by a judge, partly district in magistrate counsel represented who had court, partly and then appellate throughout dis- the divorce after the decree trict entered, and also in this mag- Court. If had both proposi- submitted given jurisdiction istrates are try tions to the con- court which were based on an cases, equal tested appeal Many one level of division. should be of this Court’s cases with, say done, away done that it except the first should be should where Here, directly be to feasible. this Court. Pause will be to consid- mentioned again entered, that after the er decree was that had I assigned Suchan been first George counsel, had substituted and it was Appeals, the Court of and on a review new speaking counsel per- who being granted here there would have been suaded the court to the dispar- view that a appeal. three levels Judge Had either ate award of real compen- with a Judge Bruce or Workman been in sole con- sating monetary award was the way better case, trol of this and not each been influ- go. And so the deeper went into perceived enced what each to be the morass. At the same ap- time Order, other’s views on the Partition parently ran high-interest head-on into the likely morass would not have come into rates crunch likely which was not envi- existence. sioned when the Partition Order was I agreement am in with the Court’s di- agreed upon by counsel and submitted for rective to the trial court on I remand. will signature. the court’s per- was the days mention that ten in regroup which to son requested who should have that the and file motions overly magnanimous is not Instead, Partition Order be rescinded. lapse view of the time since the attor- order, when contempt faced with a al- neys have contact with this case. though he would have himself been ex- However, filed, once motions are allegedly cused because he could not come trial charge court will be full as to the $100,000 up payment, with the down he did filed, procedures to be thereafter and the nothing, sought judicial intervention to type hearing which will had. This Instead, alleviate the situation. when his jurisdiction Court has had of the case since attorney opinion somehow became of the March standing of 1984. That alone should that gave Partition Order Carmen’s imbue the thought trial court with the that one-half co-tenancy ownership undivided thorough re-examination of the whole George, over to the execution sale took case, including primary interpreta- its own place, George happy, undoubtedly Order, tion of the looking Partition toward family happy, they his that could now own equitable resolution any- that will be property, prompted George all of the thing other than an uneven award of real convey to his and mother his brother saddling party and the of one right redemption. valuable recognizing, the other with debt— Judge Workman should have been well course, parties only pursued that the that buoyed up pride opin- when our first judge route in this case after trial had affirming opinion ion was released. That persuaded by been so new attor- shows a considerable concern for the fact ney replacing attorney. his trial language that the of the Partition Order give The trial court should favorable con- transferring ownership in the re- Shepard’s to, sideration to Justice view alty subject is conditioned March that “at the least the court upon, George’s making the first might possibility have considered payment executing the note kind, mightily division of the much mortgage. opinion Our labored equipment plain meaning as the court the farm of those divided work around the art, doing parties.” kind between the The directions and in so manufactured words which, basi- a rationale on remand allow the court to do so. out of whole cloth deference, support complying to the three-acre residence cally out of Workman, requirement holding Judge Partition Order's who not with the $273,739.40 execute a note and up any ratio decidendi for own worked portion conclusion. At That 107 and to secure Carmen. March P.2d at 1294 and 1295. Partition Order reads: of the opinion. It was a tribute Work payment IT ORDERED the down IS lengths. opinion man that our went such $100,000.00,hereinabove-ordered, But, At 741 P.2d careless. we were $30,000.00 the home include the shall opinion spoke twice at 1292 our Plaintiff as and awarded [Carmen] community: being lien thereon. magis- shall, court affirmed the district accordingly, ex- Plaintiff [Carmen] ruling partition trate that the order quitclaim deed con- ecute and deliver immediately conveyed Carmen’s undivid- upon property which veying separate the community property real in- ed one-half is the Defendant the home situated to George money terest to and awarded the [George], receipt the down judgment to Carmen. delivery the executed payment and and doc- mortgage and related sales

note added.) (Emphasis uments. prior ruling The held district court the conveyed partition that the order Car- provision expressly conditions This community property inter- men’s one-half George’s receipt of interest Carmen George dispositive of this is- est to was might George’s separate real have had in George. sue in favor George’s property upon execution the or- mortgage. note Nowhere does and P.2d at 1292 this same miscon- At 741 George’s receipt of expressly der condition ception repeated: was community the real interest in Carmen’s magistrate The all the real found that upon George’s property execution George parti- property awarded to the mortgage. suggests the note and This tion had sold. Since omit the execution of drafter intended to George by to property real awarded to mortgage a condition the note and partition order one-half was Carmen’s community receipt George’s of Carmen’s interest, community real The drafter was real interest. magistrate necessarily determined Workman, not but Carmen’s attor- partition conveyed proper- that order had ney. to sur- reasonably We were entitled George____ ty to mised, however, neither of attor- fallacy The of those statements neys drafted the order without would have property. any community there not was advice, or direction guidance, some Following realty-was sepa- all divorce itself. the court rately owned. Most of was farm But, carelessly, acting and out what parcels, George and each deference, our thought justified was only separate The owned as co-tenants. say: opinion on to went parcel three-acre decree on it the divorce residence shows one foregoing discussion $60,- George’s, subject to a declared to be interpret reasonably could obligation 000 of reimbursement George to execute requiring order as $30,- also community, which was awarded of Carmen mortgage favor note George Carmen. 000 to George’s receipt of either a condition fallacy. That was the in- community terest, merely as a condition fallacy was the Worse than the involved interest, after of that attempt retention page use of it at 9 our made conveyed it to immediately order had fortify the lan- impossible conclusion on order, being reasonably sub- guage clear title him. would receive 118

ject conflicting interpretations, is am already encumbrances it, and biguous. McLaughlin, Rutter v. 101 subject also the note and 292, 293, (1980) Idaho 612 P.2d give which he was to payment. A (contract case). On we review must separate paragraph Order, of the Partition accept therefore magistrate court’s did order “to assume pay interpretation erroneous, clearly unless outstanding indebtedness of the particularly interpreting where he is community as found the Court in the 52(a) (1983); own order. I.R.C.P. Rueth divorce, decree of and to hold the Plaintiff State, 74, 77, v. 103 Idaho 644 P.2d 1333 decree, harmless therefrom.” The divorce (1982); Smith, Javemick v. Idaho awarding real property in undivided one- (Em (1980). 609 P.2d interests, half and in awarding per- certain added.) phasis sonalty equipment, placed equal responsibility on both and Carmen Carmen, course, had no outstanding for the indebtedness. interest, ambigu- instrument was ous, and over-indulged saying we what insight gained Additional by resort- ambiguity, did. Even were we there an ing to the briefs filed in Suchan I. Both minds, of us with legally-trained five the briefs made and could should a have reached solution Order, the reference to Partition in- which independent of Workman’s. strument —filed in the record after the di- vorce decree been entered —went unno- uphold In furtherance of our to attempt ticed and unmentioned in our I Suchan that which we magis- believed was the opinion. George’s brief, appellant’s filed interpretation handiwork, trate’s of his own 1983, 25, April provides this account: even we went so far as our to draw own 29, April Roger Ling On the D. of supporting by inference magistrate the lik- Ling, firm of Nielsen and Robinson ening George’s obligations pay to place and of substituted stead $100,000 and execute the note and mort- Burley, H. Duffin of as Lawrence Idaho gage being as subject similar to his title to attorney and of response husband’s a payment outstanding the of all encum- husband to wife’s Motion of for Order thereon” (mortgages totaling brances over Partition was filed with the court. On creditors). to Obviously, various day May, the 11th 1982 the lower see, I now as with those encumbrances in of hearing, its Order place at the time of decree the divorce and filed 10, 1982, of after May dated granting Partition place still at the time of Partition portion community to a of the husband Order, interpreted the latter could not be personal property the commu- requiring George pay to forthwith of nity property ordering real off. same equal pay husband a sum to wife was, order, by partition property her interest in said value of required convey sepa- turn title her I, Case to husband. Suchan awarded George, property George. rate real Brief, (empha- 14890,Appellant’s p. 2 No. might convey her in- anyone to whom she added). sis property, necessarily in real terest would Brief, Respondent’s May filed subject it of record. take to encumbrances (and differently de-. put with more And, review, on this second I observe that accuracy): tail and purport require order did not even par- encumbrances; The decree awarded to each payment immediate ties an undivided receive a simply entitled to one-half community property, both real of Carmen’s inter- deed undivided one-half mis- undertook divide some personal, had been est in qui- decree, personal property, and cellaneous awarded the divorce sepa- subject the Defendant to acquire her interest eted title Suchan’s (a H. Duffin tract of real es- Lawrence 3-acre rate attorney. tate) subject to a lien favor $60,000.00.

community in the sum 29, 1982, George April Suchan’s On motion for an response to the Plaintiff’s ordered the fol- In the Court addition partition was filed with the order of lowing: Court. EXPRESSLY ORDERED “IT IS partition motion for community Carmen Suchan’s hereto, desig- day April, 1982. specifically on the 30th

parties was heard herein, parties either of the nated for day May, the 3rd On and sold at the placed for sale shall be agreed was advised terms date, in manner calculat- earliest the division upon by the derive the maximum available ed to pur- included the property, which their proceeds for distribution between Carmen Su- chase Suchan parties hereto. equity in the real estate and chan’s paid first from the “There shall be machinery. physical division proceeds of the sale of the Thereafter, re- upon the terms based payment of all property, after counsel, the Court lated to the Court sale, costs of the indebtedness on the 11th filed its Order of Partition community, with the balance I, No. May, 1982. Case day of equally between Plaintiff divided (em- Brief, pp. 3-5 Respondent’s Defendant. added). phasis “IT FURTHER ORDERED IS reply brief dated June appears if of George contended: necessary to more and effect feasible hus- pointed first out that It should be com- the distribution efficient sought to have has never band of parties, the munity property between lower court by the the found parti- will undertake Court property to be divided community to be proper- personal tion the real and of en- of Divorce otherwise or the Decree upon and ty of Plaintiff Defendant 23, April 1982 file did on forced. Wife parties here- motion either of of of Partition with her Motion for an Order to.” Motionfor Partition After the the court. 1982, day April, on the 30th of was heard Suchan, through attorney, of Partition court entered its Order Duffin, the Court Lawrence moved 1982, whereby day May, 11th of on the amending Find- altering and an order was award- community property certain of Law ings of Fact and Conclusions judg- and a and to wife ed to husband 5th hearing on for on the which came in values was ment for the difference day April, of 1982. The order of husband, allow- to wife awarded motion denying George Suchan’s Court un- money judgment ing payment of the of Fact Findings to alter or amend At provided therein. terms der certain on the Law was and Conclusions of filed states that Brief, page 5 wife wife’s of 1982, day April, together with 14th of pur- to the agreed husband and wife Supplemental Opinion the Court’s Su- Carmen by chase Suchan of Findings and Conclusions. This is real estate. equity in the chan’s 1982, day April, of On the 23rd not and is statement not an accurate an order moved the Court for Suchan this case. record in supported by the partition. apparent may become For reasons date, objects to husband Ling, Roger D. at a April On future wife, by facts Robinson, characterization Ling, the firm of Nielsen & is not though characterization even such stead of place was substituted relevant issues in this case.2 I very issues, on those same Su- and affirmed. I, 14890, Appellant’s chan Case No. Although Re- the Partition Order had been en Brief, p. ply added). 1 (emphasis days tered three appeal Judge before the Bruce, was taken from it and truly It was irrelevant and received no Judge gave Bruce also it no attention in his opinion.3 mention our Although appellate decision. Our I opinion Suchan George’s Notice of Appeal filed in this only was concerned we I what were led purported include the Order, believe judg Partition had was the final appealed case, magistrate making that order from ment hence appeal- court to George appealed district court. Only the dis able. when Suchan II surfaced in only Judgment trict court “from final this Court we apprised did become that the day March, on the entered ... 22nd controversial Partition Order was entered 1982, Supplemental Findings of pursuant paragraph to a in the trial court’s Fact and April Conclusions of Law dated Workman’s) (Judge final stating 1982____” 14, issues, The stated court, upon that the motion of either presented Judge Bruce were four in parties, would “undertake the number: personal plaintiff the real

(a) Whether there is substantial and Judgment Decree, R., and defendant.” competent support evidence to the Find- p. 87. ings Fact of the court. having With the case been removed from (b) erred Whether the court in conclud- Workman, Judge and while it was before ing “Agreement as to status of appeal, judge having Bruce on community property after death of one briefing order of June set spouses” which is revoked law argument July schedule oral parties, divorce of the constitutes a filed an affidavit the case appellant’s separate conveyance prop- (at case, all times one and the same No. erty respondent, thereby transmuting 7934) which affidavit stated that property. said into comply not and would not with the (c) Whether lower erred ap- Partition No Order. reason therefore

adopting the sepa- value of defendant’s Workman, pearing, Judge Judge it was not property by expenditure rate of com- Bruce, signed who an order show cause 10, munity funds as of March 1982. George. contempt re directed to On the (d) Whether the Conclusions of Law July 9, following day, George filed a mo- Findings supported by are Fact. proceedings appeal stay tion to until R., p. 122. Judge Judge Not by was decided Bruce. Bruce, Judge both the Judge but Workman heard It was from Bruce’s decision affirm- ing motion Judge contempt stay Workman that we heard motion and the George appears may infra, granted 2. As "the reasons that be Order Partition which Judge apparent” were come not disclosed that disproportionate the com- award a amount of Bruce, Judge prior to the Workman date of subject obligation pay munity property, to his brief, taking apparently each his cue from that value, money judg- by Carmen its secured a half George the other after counsel for language, initiated the by approved award has ment. Such an 121, 1308, n. infra, n. 741 P.2d at Supreme on numerous other occasions.” Court referring parti sponte had sua started Brief, 15460, Respondent’s p. 27. Case No. money judgment. tion as Carmen’s As order guilty George’s respect of at- brief in this was Suchan, through appears infra, also first George tempting believing that we us into to lead Ling, through Mr. Mr. and then Duffin sub done, something and to done which we had not partition proposals mitted two different gave whatever in which we no consideration separately the then owned Suchan I. parties. George’s attempt to raise brief did George’s Respondent’s filed in the 3. Brief Order; concerning nor issue the Partition appeal July it is stated: “The instant did Carmen’s 1983 brief. Supreme approved and Idaho affirmed made, $273,739.40 day, July minutes the sum of bear the same 15. The court would percent. ruling statutory interest at the rate of 18 of that date show the court’s oral comprehension, This is difficult of as stay until the granted that a would be decided, exceedingly Partition Order was clear that appeal be was that would $273,739.40 paid would in annual $150,000 be post bond in the sum of ordered payments, and ac- interest thereon would supersedeas —apparently stay for the percent per uqpaid crue at 12 annum on the order, Ling pre- Mr. was directed Moreover, it not a balance. was R., pare p. the orders. 137. money, for that but as such amount of prepared Ling, by The order Mr. provisions prom- stated the terms and aof attorney, July contained dated required to issory note which was long recital an order. The a sentence and execute, security practical- with which was stayed obtaining order Carmen’s efforts at ly all of the real which after the Order, compliance Partition “on separately divorce became owned undivided $150,- that” furnish the condition one-half interests —vested Carmen undertaking. But 16-line one-sen- best, George. vested At it was entered, tence recital of the which order, judgment, per partition court’s Ling captioned Mr. “ORDER GRANTING conveying separate- would be that Carmen EXECUTION,” also STAY OF ly undivided inter- owned one-half language George having ap- couched George in est to return a sum of pealed the Partition Order —which $273,- paid by money George per It correctly he had not done. did recite the $100,000 mortgage, note and 739.40 requirement partition order’s down. June, paid day on or before 14th Judge next scene in Enters Bruce on the It recited the terms which same case but him as a now before $273,739.40— pay appellate oral one-judge and hears made no mention Partition but argument appeal. August on the he On required done Order this would be affirming Judge renders his decision amount, of a note execution in that provisions Workman’s divorce decree property mortgage security, real both had declared the status of the conveyances appropriate be escrowed with it,” “dividing speak, by involved and so to from Carmen.4 making George and co-tenants. Eight days Judge later entered Workman Bruce of No mention was made supplement foregoing understandably order which be- order— $100,000payment appealed. stated that until the it had not been On Octo- cause Stay support K. of said and Richard 4. The recital of Order is in full: in Motion Smith, opposition plaintiff, counsel for Judgment having duly granted A and been thereto, attorney on and motion of entered in the above 22, 1982, action on March entitled defendant, is____R., p. 138. having and an Order of Partition of the contents This was a serious misstatement granted duly pursuant been and entered Order, at this but harmless of the Partition 1982, Judgment May, day said on the 10th of seen, completely foregoing point. As is Suchan, plain- in favor of Carmen Estelle requirement of a mention of the named, omitted against Su- tiff above chan, A. executory provi- mortgage, named, note and and other for the the defendant above order, without in the order. This same sions by payment plaintiff sum defendant to executory provisions, would $100,000.00 to the reference day or of of on before the 14th by court June, $273,739.40 the district sometime later observed payment 1982 and the of it, installments, appeal it to and would influence bearing on the twenty interest annual money judgment for a annum, had belief that Carmen per defend- rate of 12% and the at the $373,739.40, money judg- of whereas having appealed District total to the ant therefrom $100,000. by was the State ment was of the Fifth District of Court Judicial Minidoka, Idaho, judicial entitled note and County decree to the in and for of of escrowed, Stay it was but having in that amount —to be and defendant filed his Motion a se- money judgment nor Proceedings pending appeal, after hear- neither a collectible defendant, ing Roger Ling, D. cured note. counsel for by opinion, Judge ber 29 written notes, Bruce mortgages, execution of George’s petition denied rehearing. security in protection instruments of R., Plaintiff’s lifetime p. accumulation. appeal While pending before 171. Bruce, Judge post did not the re- quired supersedeas bond, authority No was filed but Carmen Carmen which suggest any legal princi- nevertheless awaited out the decision the least 6, appeal. 1982, ples precedent Not until or December did would authorize attempt she renew her earlier completely to obtain Court to alter the Partition George’s compliance with the Partition Or- Order—which that time was final and pursuing der. unappealable. Instead of Judge with an- Neither Bruce nor contempt process, sought other Judge she an or- Workman acted it. der of the court which would allow her to Notwithstanding George’s filing of an proceed ongoing against with an execution appeal 10, 1982, to this Court on December $100,000money judgment incorporated Judge hearing “upon Bruce conducted a Anticipating Partition Order. seeking the order to show cause” George’s appeal Supreme to the Court approval proceed pending with the exe- Judge affirming from Bruce’s decision $100,000,plus cution on the interest there- Workman, Judge sought she to be relieved Judge and, on. Bruce heard from counsel seven-day stay of the automatic period on on December entered the follow- filing appeal.5 pro- of an The execution ing Allowing Order Execution Sale to Pro- ceedings already proceeded to the ceed: stage posting publishing. appearing It Court a writ of supporting affidavit is abso- day execution issued on the 8th of No lutely purpose clear as to the of the execu- vember, 1982, seeking enforcement of proceedings: tion thereby seeks “Plaintiff the Order of Partition entered in the $100,000.00,plus to execute on the initial above-entitled action and dated the 10th interest and costs which has been due and 1982; day May, appearing it further owing under the Court’s Order Parti- the Court that notice of June, R., since the day tion 24th 1982.” affirming District Court Order the De p. signed Bruce the order to cree of Divorce filed on December George. show cause directed to 1982; appearing it further to the Court sought the sum in such execution

By yet another affidavit of December $100,000.00plus is the sum sought entirely different per at the rate annum on the 18% order that: $373,739.j0 in the sum full execution issue the Defendant day May, the 10th full for the sum of Plaintiff’s ] costs;[6 interest, over and above the execution informed, in having The Court presently progress, by reason of the failure, open the Defendant could not any way, obey Defendant’s bond, post deposit supersedeas a cash Order of Partition issued that the requiring payment money, appearing and it to the Court satisfy Judge rehearing sought only to 5. Bruce denied the on October the execution $100,000. days appeal in which to 29. this Court. As of the date of Carmen’s had 42 on and the interest which had accrued affidavit, Bruce, Judge appellate Strangely, decision days appeal. had three left in which to magistrate, subsequent affirming a appeal was filed on December 10—the last later, February months on would write fourteen day. argument rehearing in Suchan At oral on execution, relative to the II, Ling Mr. informed us that Carmen and her $100,- the initial had the writ issued "so that appeal counsel had been advised that the would R., 1, p. might payment made.” Vol. 000.00 be filed. 179. patently 6. The recitation was incorrect. read, correctly papers, execution showed Ling the Court sought to is a mon- Mr. then addressed and be enforced

judgment alternative, argu- he and hearing after states has no ey judgment, and counsel, testify. being fully like to the Court have Mr. Suchan ment of informed, good appearing cause and again addressed the Court. Mr. Smith therefore, R., p. 178. that the execution IT IS ORDERED mentioned, appeal from the district As published proceed, as and should sale court, Judge Bruce, Supreme Court December, noticed, day the 15th on Judge days filed before Bruce was three 1982; R., (augmented Case No. argument and ordered that execution heard 15460) add- pp. (emphasis 176-77 into No. to show cause proceed, could the order but ed). signed by Judge was never Workman absolutely make minutes also considered, The Court presumably because heard or Judge Bruce was consider- clear that appeal Judge Workman’s court from why pend- show cause ing the order to appeal and also the Bruce’s court satisfy the posted execution sale to ing and Judge Bruce’s court. to this Court from $100,000 money judgment not take should And, appeal to this Court although the place, considering not the other and was appeal from the or- purported to by Judge issued order to show cause Work- der, regarding it was raised issue minutes The court are: man. briefs, wholly and the Partition Order went I. EXE- unmentioned Suchan TO SHOW CAUSE WHY

ORDER SHOULD NOT PROCEED CUTION execution, The writ which was not OF APPEAL IS EVEN IF NOTICE go stayed specifically but allowed for- FILED order, exactly was by Judge ward Bruce’s that he on Mr. Smith stated will stand referred portrayed in Carmen’s affidavit pending proof. the affidavit to above: prelimi- Ling Mr. addressed Court on WHEREAS, roll un- nary they remarks. States are Judgment and De- action said supersedeas able to obtain bond cree, Partition, Supplemen- Order of money, they waive that amount Granting Stay of Exe- tal Order to Order additional time to obtain bond at cution, in the Office are all filed Clerk’s Minidoka, time. Court, County of of said in the Idaho, Judgment and said State again Mr. Smith addressed the Court. Decree, of Partition were and Order that one To States Order Show Cause Office, in the Clerk’s docketed in said scheduled District Court was year in the days and County, said on the Mag- one scheduled the other before written, the sum first above issue Also addressed the istrate Court. May $100,000.00with interest stated on the bond and that there from per annum is at rate 18% posted on the never a bond writ, now, actually of this the date Magistrate Division to the District Court. Decree, Judgment and on due said go that the execution should He feels Sup- together with Order of Partition forward. the Court thereto.7 plemental Order of it hasn’t stated that considered 14890, R., p. I, No. Case trial to Show Cause before the Order the Partition never claimedthat It has counsel determine and that can $100,000money did amount to Order hear this. who should execute, secure, Ling, Mr. notwith- rehearing, put and escrow. question re-argument 7. At record, ascertaining standing re- Ling concerned with the documentation Mr. attempt- process finally included firmly the execution committed whether and mained anything ing $100,000 above the of over and satisfaction satisfaction of included view that the execution thereon, i.e., did or did and interest $273,739.40: 18% on the satisfying accrued interest not include $273,739.40 required to note which was judgment. No one has contended that in- On the same date that the writ issued and money terest on judgment does not ac- Levy recorded, Notice of the sheriff crue interest percent at the rate of 18 per signed also a Notice of Sale which con- annum—which has been so since 1981 Ida- tained the same recitations as the Notice of Sess.Laws, 157, p. ho ch. 269. The di- Levy, and added also that Levy rection to the sheriff set forth in the writ gave public been made and notice as fol- was in provisions conformance with the of lows: 11-102, I.C. and instructed as follows: § hereby given I, PUBLIC NOTICE is NOW, YOU, Sheriff, the said are here- undersigned as the Sheriff of the by required satisfy judgment and County Minidoka,will, of day on the 15th the Court with interest as December, 1982, AM, at 10:00 o’clock aforesaid, costs, accruing and costs and day, of such at 413 West 100 South of personal property out of the of said Paul, Idaho, at the A. Suchan SUCHAN, A. GEORGE debt- residence, Minodoka, County or, if personal sufficient property of Idaho, public auction, State of sell at found, said debtor cannot be then out of bidder, highest cash, for your the real County belong- right, title and interest of Defendant ing day to said debtor on the when said the .above-described real estate judgment and decree was docketed in (following personal property the sale of County, Minidoka or at time there- noticed) separately or so much thereof after, and make return of this writ with- may necessary to raise sufficient (60) hereof, sixty days receipt after the execution, money satisfy togeth- such you with what have done endorsed there- (Em- er with interest and costs thereon. I, 14890, R., on. p. Suchan Case No. added.) phasis 191. handwriting on the Notice is the state- Upon receipt of pursuant the writ and “Subject property.” ment to liens on county thereto the sheriff filed with the place The sale took as scheduled. Per Levy correctly recorder a Notice of upon sonal which had been levied May recited that the writ had issued on the sold, was first all to Dan Suchan or Frank order, was, and that “there Suchan, $22,500. Thereafter, $100,- owing now is due and the sum of utilizing right Suchan to direct plus per 000.00 interest at annum from 18% sale, parcels day May, order of the various 10th 1982.” Case No. 14890, R., p. perform- realty previously 192. levied were offered The sheriff’s duty clearly portrayed bought ance of his is in the quarter- and sold. Frank language: usual time-honored $5,000, quarter-section for section for one $2,500, quarter-sections two I HAVE HEREBY LEVIED on all the each, finally a tract known as right, title Defendant $1,500. Amalgamated Property Burton following and to the Minidoka, Idaho, Sugar Company bought the final tract for a County State added.) $25,000bid, given (Emphasis wit: and all were certificates was done on the basis not MR. LING: But we know that the did and obtained? It $100,000, say, buy but also to collect “You can from Carmen or Car- buy you per thousand $370 if annum on the odd men can neither one of 18% you buy then we’ll sell it or dollars? something." say say, And the execu- MR. LING: That’s correct. It didn’t that. It did selling; George buying. papers, execution shows the is X tion the writ of “Carmen plus the money judgment is 18% on 373 number of dollars is a total amount due $100,000, property." were due at the time has the That's what we all of which prepared very clearly. "George you get Car- says, the writ of execution think it $373,000.” attorney to the clerk and property. men’s and submitted You owe her Counsel, argu- signed, proceeded. Oral sale do I under- and the JUSTICE SHEPARD: rehearing, Sept. correctly sought ment on stand that an execution was of The not NO. I sale. sheriff returned writ FINDING $75,439.13. fully by satisfied the amount of May, 1982, day On the 10th of this controversy The ensued which thereafter court entered an Order of Partition right, on centered a determination of what provided, things, among which other title, property and interest real sold property previously by the real owned George owned on execution community plaintiff of and defendant requires of the in turn a date sale —which conveyed was to vested in and defend of of proper determination the construction George ant A. Suchan as his sole and 10, May partition Judge order. separate property, subject to a lien in judge the first to be called Workman was plaintiff Estelle Su favor of le- determine the construction and $373,739.40.9 chan in the sum Case of 10, gal May effect of the 1982 order. Oth- 15460, R., pp. (emphasis No. 61-62 add Court, turn, as including er in this courts ed). opinion, at the outset there- stated Judge of Workman’s first conclusion law ruling.8 to his The issue after deferred of the same vein: affidavits, was testimony, on was submitted by argument, and decided written find- oral of The Partition of this court Order ings and conclusions under date of Febru- 10, plaintiff 1982 granted May dated 4, 1983. ary judgment right, all her money a of community title interest real finding Judge provides The first of fact par- property previously by owned legal Workman's view effect conveyed vested in ties and May order of and would flavor defend- subject property, ant all said real appellate determinations: future of later, being Judge operative at the time it was 8. Bruce on an to district Partition as Judge denying signed; court Workman’s order awarded to the real was requiring Carmen’s motion for an order George’s money judg- a and Carmen received executory compliance terms $373,739.40 with the to be ment the amount of se- Order, pointed of the Partition clarity out some mortgage by promissory cured a note and a ' right that: to be a "Carmen’s secured (Conclusion property. of real Law mortgage significant a on the real was 4) partition p. # was not conditional Partition; portion of the Order R., effect George. dependent upon any acts of [denying relief] the trial court’s order her that 1, p. 183. Case No. Vol. was, practical, purposes destroy for all proceeded to the Partition Order He declare R., security right to a interest.” Case No. Judge ambiguous (something Workman However, p. Judge 182. Bruce was in Vol. done) and ruled that: "The trial court had respects analysis. The error in two vital only in his given to Order of Partition construction by the Par- recoverable awarded ...," going on to the trial court is reasonable $100,000, and tition Order was for the sum of Judge Workman’s con- his view that add own have lien on on that amount Carmen would a (own) all of to receive struction allowed real separate realty property, with sole as his assuming might acquire, rec- own or thereafter settlement____” receiving a Id. at cash "Carmen Partition The Partition ordation Order. Judge demonstrates no Bruce’s decision give a Order did not order mortgage Order came to how the Partition awareness as $100,000. re- on that existence, that it was drafted other than into money quired given was not to secure attorney he blamed for the whom Carmen’s ambiguity thought, judgment, Judge erroneously Bruce ambiguity he isolated note, never note secure and the amount of that but to —which $273,739.40. for critical examination. un- He was would be the sum of right doubtedly seeing that the correct at one time had indeed 9. The real significant portion of the Partition secured property, but deference, previously Evidencing his the next order. page, entered, party each the divorce decree was provides reading after Work- he Order, in- undivided one-half owned his and own Partition man’s construction terests, disposed acknowledges requirement both could have he and each and wherein also mortgage, erroneously sees of a note and but But at the time of the same. money security judgment: cotenancy, being proceedings both as for a owned doubt, Ling as Mr. can be no Findings which there and Conclusions In its Law, of Fact agreed. has so the Order trial construed 126 Id., Judgment p. emphasis

said 64 Bruce May lien. had characterized the entire added).10 money judgment 1982 order as —with he, Judge Workman, which did not want to Judge Finding Workman’s No. I and quarrel: or did not point I ConclusionNo. are the main focal The District Court’s Order December inquiry, proper interpretation because a provided part, as follows: governs of the Partition Order or affects decisions, applicability ensuing of all informed, having “7. The Court Judge court, determinations and orders. Work- in open that the Defendant could provide man did not either the intermediate post deposit supersedeas a cash Judge appellate District Ronald D. bond, appearing and it Bruce, any or this memorandum Court with judgment sought to be en- explain decision he so which would how money judgment, is and af- forced Judge All that we have are (cid:127)reasoned. counsel, hearing argument ter above-quoted legal bare conclu- Workman’s informed, being fully the court as of the document of sions effect therefore, good appearing cause affixing which his sole involvement was the IT IS ORDERED that execution signature, previously we but which proceed, published sale should thought was a document which he had au- noticed, December, day on the 15th thored, or, least, at the embodied a decision 1982....” passed he had made and on to coun- added). (Files herein; emphasis Case drafting sel for the for the thereof. 15460, R., p. No. 80.11 proceedings shortly thereafter shed Later very finding, Judge In the next Workman apparently some illumination on what influ- seemingly accepts gospel proposition Judge enced Workman to characterize the property advertised for sale that the real Partition Order. by George and sold was all owned —not- Following January hearing withstanding only George’s it was decision, hearing before there was another title, which Sher- right, and interest therein him on a motion to set aside the iff had levied and advertised Jarvis Workman, Judge on March execution sale. sale. and, 9, 1983, findings of fact filed his 15,1982 December an Execution “8. On 1, 1983, opinion conclu- April filed his conducted, physical location Sale findings disclose that some- sions. The portion being upon a of the sale forgot- along judge line the where awarded to the Defend- Order, by now the ten how the Partition in this Judgment pursuant ant to the controversy, into cause of all had come R., (em- p. 80 matter.” Case No. seventy sepa- By his second of existence. added). phasis findings, he attributed the rately stated questionable be- finding which Another entry to Carmen: “Subse- of that order complete, but which it is less than cause matter, and on quent of this to the trial court’s deci- clearly shows the flavor its Order May this court entered sions, is: Motion pursuant to Plaintiff’s of Partition offering 15460, R., Prior to the Sheriff p. 14. ... for Partition.” Case No. K. Smith an- Richard No. from recital Parcel finding quoted he In another bidders prospective nounced be sought to that “the enforced “subject to the offered No. 1 was being Parcel money judgment” apparently as a — Estelle Su- continuing lien willing therefrom that to deduce was aimed execution doubt the entirely 11. Without devoid of Order is 10. The Partition money judgment, language purporting impress collecting a lien in favor formerly time at one of Carmen exact. community property. 15460, R., (em- parcel, he p. 81 each that would announce that chan.” Case No. continuing added). Es-

phasis there —the lien of Carmen proper- apply telle Suchan would subsequent finding equally ques- A was Then, liens, other ty. if there was some as viewed relative to the evidence: tionable he would announce those. parcel, 21. each Mr. Prior the sale of Now, Q. Okay. did he announce that prospective announced to the bid- Smith sold, parcel as to last was also that being sold parcels that were ders applied Mrs. lien to that? that Suchan’s continuing to the lien Plaintiff. subject it, A. I he announced on believe Smith also announced that certain Mr. was men- plus there was Strasser’s name parcels subject affected were to Federal somebody— There tioned there. was Bank, Land Small Business Administra- one, talking last When we’re about the tion, Drilling mort- Strasser and A.S.C.S. talking sugar one the we’re about the 15460, R., gages. p. Case No. 82. factory bought. 37, 38, 41, Finding and 42 Nos. enumerated yes. Q. Sugar factory bought, The encumbrances, and did bear out various against A. There was some lien some that Mr. Smith did caution the bidders set off big grain way that back over bins liens. about those various And I in the corner. don’t recall—I an finding Another laid somewhat of any of didn’t write that down. onus, “guilt trip,” on Carmen for the situation: whole Q. you what Mr. Smith From heard Sale, 52. Prior to the Execution announce, those you do think that who en- subsequent the Partition Order there were there understood that herein, gave tered never to De- Plaintiff prop- some sort as to this some claim of an which alternate method fendant erty by Suchanl par- to satisfy interest in the Plaintiffs Oh, They A. I’m sure. I’m sure. 15460,R., p. 86 ties’property. Case No. helped to. He couldn’t have made added).12 (emphasis very plain that she still had an interest testimony some- Sheriff Jarvis was Proceedings, Tr. of property. in that Judge findings, what like but Workman’s added). (emphasis March enough conformity not in close therewith given by foregoing testimony was pass findings so to allow the muster. by Mr. Mr. Jarvis when called as a witness The sheriff was uncertain as to what was Duff, representing Frank Suchan. Larry statements, espe- said Mr. Smith’s about Parsons, lien,” attorney who had cially very Mr. W. an claiming as to “a but sale, repre- he present at the where specific poten- Mr. been advised the Smith bidders, Amalgamated one sented present ownership buyers tial of Carmen’s called a witness Mr. Sugar Company, of an undivided one-half interest Duff, the sheriff: corroborated being sold, of which owned the other undivided one-half interest Q. any comments made Where there upon: any you which had levied at time by Mr. heard Smith proper- liens concerning Q. say prior he Okay. What did ty? parcel for each sale? A. Yes. And I say I can’t for word. A. word said, who, Q. to the best other what was remember for sure And don’t even he, prior your sale of recollection? than the fact that to the any reasoning would re- finding record reveals is the closest Workman This recognizing provide George an quire owned alter- ever came to Carmen to in all real undivided one-half interest per nate method. Nothing his own divorce decree. Smith, A. Q. Suchan, Mr. after Mr. Jarvis read Mrs. you did believe that notice, and as parcel, he sold each you still had a—an actual interest Mr. people Smith advised those at land at the time of sale? —or apparently (inaudible) condition, least— Honor, MR. LING: Your going I’m that the being subject sold object plaintiff’s to the belief. It’s imma- Carmen Suchan. Id. terial and irrelevant. 13-14. And, also, going I’m object to the Ling, On cross-examination Mr. Mr. Par- leading question. It’s been most liberal. change sons did the word “interests” to improper But I think it’s constantly judgment concerning was, which it lien— put mouth, words the witness’s as all both, he wasn’t much concerned: questions have. Q. you You indicated your heard THE I objec- COURT: will sustain the partner indicate that the tion on leading. the basis that it’s sold, being subject to the interests of well, Very MR. SMITH: Your Honor. my— Carmen Suchan. Is that Q. Smith) (By Mr. At the time of the judgment AA. lien of Carmen Su- sale, Suchan, execution Mrs. what did chan. you your think the land was? Q. judgment You Oh. said a lien? A. Well— A. Yes. Objection, MR. DUFF: Your Honor. Q. Okay. you And did know that— speculation. It’s She’s— Well, lien, judgment that was the Well, object. MR. LING: we also course, being that was by the enforced hardly specula- MR. SMITH: She—It’s sheriff, Writ Execution wasn’t thought. tive what she Her interest if! was of record. that.[13]

A. I don’t know MR. I think—I think it’s a DUFF: Well, Q. you You didn’t know that. matter of what the witness thinks her investigated Amalgamat- had this for the course, legal position may be. Of it real- Sugar Company? ed ly isn’t material to the case what the A. I had. is, question legal position her what was. Q. you And what did it mean to when interesting, MR. SMITH: That’s Your' stated, your partner “The Honor, bidding sale. since she was at the being subject judgment sold lien of normally opinion She would have Carmen Suchan?” selling. was formed as to what she was me, Ling, A. What it meant to Mr. very germane It’s to this. County, that it was recorded Minidoka Well, gentlemen, THE COURT: making provisions. a court order certain fully legal court is aware issues I provisions you. can’t recite all those relating to counsel—various counsel’s added). (emphasis 18-19 Id. at interpretations the court order. stand, allowed to Carmen took very well aware The court is also explain what interest she believed that her opinion regarding that or- the court’s execution was directed —with der, ulti- since the court is the one who process Workman acknowl- mately signed it. edging only participation that his with re- going I’m Mrs. to an- gard to allow to the Partition Order been Obviously signing question. swer that the doc- of it: law, judgment properly recorded would estab- As a matter of if the Partition Order had of a recorded, $100,000 (plus given priority it did constitute a to Carmen’s lish the date of interest) accrued lien on judgment. to sell real by George. property interest owned Such execution, required properly the sheriff is obligation would not affect the of the sheriff to it, levy upon advertise the sale. levy upon the same interest. The lien speak predicament envisions. contained within uments Defendant file themselves, can also understand to the certain extent Defendant’s land, he own the Smith, regarding position cannot you inquiring Mr. are if 15460, R., No. is not his brother should. Case which Mrs. Suchan legal opinion, added). p. (emphasis give point. How- at this authorized ever— again thrust Judge Workman

MR. SMITH: Oh— responsibility for the situation the entire Or- of the Partition which his construction However, I allow will THE COURT: had occasioned: der question. to answer argument convincing Plaintiff’s most you, Your Honor. Thank MR. SMITH: is that Plaintiff for vacation of sale Yes. THE COURT: misinterpreted the Court’s Order of Par WITNESS: At the time THE judg gave money rise to her tition which sale, executing we were I believed that argu ment and the ultimate sale. That proper- in on the half ment is watered inasmuch somewhat agree- on get to started the ty, trying (1) about as a the Partition Order came agree- had made—the ment that Parti result Motion of Plaintiffs earlier, get down trying to ment tion; (2) prepared counsel Plaintiffs get could on with payment so that we sig the Court’s the Partition Order for (emphasis at 39-41 agreement. Id. nature; (3) proceeded to Exe Plaintiff added). cution Sale face of Defendant’s testi- notwithstanding and Nevertheless Court; (If)the objection Court’s Judge mony, findings, based those Motion which denies Defendant’s opinion in his and conclusions Workman Stay, submitted prepared to excerpts: following wrote the counsel, to Plaintiffs refers Plaintiffs aside, De- this does not view That Court (emphasis add money judgment.14 Id. present position unjustifi- fendant’s be ed). granted able. The Partition Order Sale) Execution At time of the money judgment. a collectable

Plaintiff had a substantial Plaintiff machinery farm Defendant was awarded Although opted she Defendant. Obviously and farmland. the intent sale, complains now not to bid at the she intact a keep the Partition Order was to low, too So she others bid low. that farm, emo- family for the economical and bid should argues, the amounts parties their tional benefit conscience of Court. shock the As is con- children. far as record, eq- now Plaintiff asks Upon that cerned, that was a reasonable solution be that which she caused to uity to undo Then Exe- a difficult situation. came the Case No. first instance. done ma- lost his farm cution Sale. Defendant added). 15460, R., (emphasis p. 90 sale, farm- chinery at the as well as his Judge Workman’s Putting for now aside in Defend- land. The record is clear that all-important Partition of the construction land, if opinion, ant’s he redeemed the his involvement Order where merely cause another Plaintiff unburdened, it, can, proceed so sign we property. his The record reveals sale of made have which we would review attempts to refinance Defendant’s did. initially not deferred we we farming operation, to forestall such importance, Carmen Su singular sale, This Of which efforts were fruitless. listing complaint, after hopeless chan’s divorce sympathize with the Court can language recitation is critically of the 14. This is attor- order. The erroneous. Carmen’s George’s opening language stay. ney denying As much the same draw did not the order brief in supra, Suchan I. See p. Judge discussion at 121 supra, Workman stated himself, stay Ling prepare 741 at 1308 n. 4. n. P.2d directed Mr. personal real community property, Responsive to no corresponding prayer alleged appraised, party, that it “should be either evalu and with Workman’s ated, giving directions, parties guiding $800,- and divided decree between the here outstanding property, equally____ Any was ordered to be indebted “placed for sale retired, at the community ness of the be sold earliest should date, and in a manner calculated assets, to derive community prior from the to divi proceeds the maximum available for distri- sion community property between parties bution between the hereto.” R. such, too, Plaintiff Defendant.” And (Sup.Ct. 14890), p. No. prayer complaint. was a The an swer requested BUT, Judge Workman’s decree also con- being granted the event of a divorce provision tained the which would lead to there “an equitable division made of the litigation the involved now before us for community property under such terms and resolution: preserve conditions as will the defendant’s IT FURTHER IS ORDERED that if ability 15, provide for himself and his children.”partition of property appears more necessary feasible and to effect the effi cient magistrate, Judge prop distribution trial Work- erty man, parties, notwithstanding between the that both re- Court will mately an quested equal an division decree equitable worth of (Carmen), divorce as to division realty, (George), approxi- left the March or fendant parties hereto. personal property undertake the motion Id. of Plaintiff ^[17] the real either and De parties them, in exactly almost as he found affairs, state Under that it was foreseea situation, a co-tenancy as owning each now parties pursue ble that both would a more his or separate property, her sole and an final resolution of their affairs than the in undivided one-half interest what before provided. divorce decree While Carmen signature community- the judge’s had been again equal was the first to ask for an property. Although prayer owned real division, property which did immedi she parties property of both was for a division ately April George’s post- on after completely which would free each from the motions amendment other, simply the divorce decree removed findings and conclusions had been heard community-owned proper- status of the denied, in George’s proposal was ty and left them still as tenants-in-common later, days seeking court’s hands two also property of the real had which both asked equal proposals an division. Both on their important have divided—the most issue eminently fair, being face were based controversy, in disregarding child cus- prior by the divorce decree. evaluations set tody, separate George’s issue which was also Approval proposition, con- of either Carmen’s, completely tested. freed would have alleged money judgment 15. Suchan also his claim to some rise to and the ultimate separate being as his argument real estate sole and sale. watered That is somewhat property. It this which was (1) issue one inasmuch Partition Order came ultimately those decided in Suchan I. about as a result Motion Parti- of Plaintiff's tion; R., p. (emphasis No. 93 Case for, sought, fought 16. Suchan also added). custody parties’ two minor sons. any Judge not at time Workman did offer explanation having parties any "upon for his not divid- supra, 17. As mentioned this motion” lan- instance, guage significance proceed- property had in ed the real in the first as had later further ings Judge requested parties. by where Workman would write in de- both nying a motion to set aside the execution sale: not misin- Carmen’s counsel had time Order, terpreted pro- convincing the Partition but in later argument Plaintiffs most for va- ceedings proceed upon misinterpret- that he is had to basis cation the sale that Plaintiff gave by Judge interpretation. ed the which Court’s Order of Partition was bound Workman’s By paid. the court to be Mr. Rich- ordered from each other. After allowing to be awarded the proposal defendant presented ard Smith land, he be to make presented Section will free Mr. Laurence Duffin had Rog- regard days arrangements Mr. his brother in George’s proposal, two later with the first Ling appeared in the case for located on this er to the well pro- George18 and now attorney drilled his brother but is not time property. division of the posed unequal an used. very here for the first time It was machinery is of farm division propositioned, and was so Workman farming upon the needs of defend- based unequal division of real where ma- proposed division of farm ant. off- George’s an favor would necessitate represents equitable chinery division exchange compensating monetary setting plaintiff machinery and will allow of that equation. balance the order to portion proceed to of machin- sell proposal ery her in such manner as

Under submitted awarded to point- real Ling, may less It should be Mr. Carmen would receive she desire. also machinery either of first two property than under ed out the values $185,537.76— by plaintiff receive proposals, but would were the values established thusly: com- paid she should therefore have no regard of that plaint value (e) plaintiff, Payment by defendant to course, if property awarded to her. Of nor year, than payable not less one awarded sufficient defendant years equal annual more than ten ten justify farming oper- installments, at the thereon ations, he to retain would have reason annum, by a per rate of secured 12% machinery that has the farm defendant on Section requested be awarded him. No. awarded to defendant. Case R., added). p. (emphasis Any segregate irrigated attempt to 4. located same ground dry land in the Ling, submitting George’s second Mr. in quarter-section create a section or would proposal, accompanied it with a written of the reduction value substantial why equitable of it statement reasons was addition, In devel- dry land. the costs of just. apparently argument It and was an opment dry of land without the con- the convincing, which was in and of itself irrigated tiguous land would substantial- not, by if then Mr. was further buttressed development. of this ly increase the cost argument Ling’s hearing the on the at held proposal, No. second Case 30, April partition proposals on 1982. 14890, R., p. 104. Judge Workman took the under ad matter visement, stating will that “Mrs. Suchan exist- Partition Order came into After the get her fair share and Mr. will be then, Suchan May 10, July 12th on when on ence 111, R., p. farming,” allowed to continue sought to cause an order show by oral the is found which statement George’s compliance require would which might incorporated into what called the 10,1982, May she of with the court’s order 10, partition May to preamble Order of (never it con- supported with an affidavit 1982, 132, set infra, out at P.2d at by testimony, but tradicted affidavit portion Mr. argument of Judge supported by the remarks of fact Ling’s of proposal written on behalf himself), paragraph of which Workman George, he that it proposition advanced the explanation genesis of the contains the George: would enable Judge Workman the Partition Order which sign, although not at his own livelihood, all proceed his and there- would pay support product: allow him to the child work in, out, George’s attorney. Ling day April, Mr. 18. On the Notice 30th formal filed; Substitution was Mr. Duffin of Counsel 6. The motion partition on was heard Defendant desired to a farming continue day operation, on of April. the 30th On the 3rd day and that the Court was in- 1982, clined to May, prior entry so of a real estate to Parti- continue, allow Court, the Defendant to subject tion Order the Plaintiff to the undertaking and agreed to an by the made Defendant’s offer Defend- carrying appropriate arrange- out ant conveyed which the Court as acquisition ments agreed incorporated settled and and was Plaintiffs f/¡) undivided interest Partition, by agreement into the Order of one-half community property of parties, which parties, and the entered Order provide appropriate financial day May, the 10th 1982. Case No. flexibility security therefore. Case 14890, R., p. 129. R., p. No. 111-12 (emphasis add- foregoing should the purpose serve ed). putting proper perspective the deci- Paragraph May provides 4 of that 10 order sion of Workman when he would a summary of what order would accom- opinion sometime thereafter his render plish,19 paragraph, clarity which legal effect of of May the Order easier comprehension, sentence sen- sign where function tence, is as follows: being represented on its himto that it was 1. The Court determines that net agreement reached, community interest of party, each freeing thereby arriving him from at his through partition, divided this is the sum partitioning own solution issue. $445,844.40. parties contemplated Of that and the Court, 2. The juncture, has provided Order Suchan had to distributed in kind to the Plaintiff ma- comply provisions creating with the chinery goods totalling and household documented well-secured indebtedness $72,105.00 (excluding repre- the home in order obtain title to lien). senting realty her undivided one-half Defendant, hand, 3. The on the other personalty there can be doubt. It is received, provisions has under the of this well opening illustrated remarks of partition, estate, all of the farm real one- where, May 1982 order after refer- (V2) half machinery, ring 30,1982, hearing April to the of is this commodities, Qh) cattle and one-half of language: goods, (V2) the household and one-half of community Court announced at time that sepa- the lien on [T]he Defendant’s impression property. was the Court’s the rate itself, decree, By incorporated property rights parties 19. a note in the order divorce the the of following page, and the was set out separate, which on the one-half became sole and undivided allowing George made it Court clear that ownerships. The confusion is understandable. acquire property by purchas- Suchan to ing the real The its undertake trial court offered services to Carmen’s share would allow Suchan ordinarily partition proceeding, operations during to farm as he had continue 6, provisions be ch. done under the of Title marriage, any party the and free each from kind However, where, infra, appears Idaho Code. as ownership: of common through Carmen Suchan Plaintiff, payment by NOTE—The to the De- agreement their own for an counsel reached fendant, interest, community of the balance of unequal partition of estates, then vested in cash, in in is effected order to allow cotenancy each I deem no conse- as of operation the to the Defendant continue of quence counsel for that neither the court nor during the farm established the course of the chapter patties 6 the awareness of showed predicated upon marriage. purpose It is the agreement of Title do note that the 5. We place parties of the to of the each parties displayed reached themselves the possession respective sole of their interests at provisions regard some I.C. 6-541 and its § protection the earliest date for the parties. of both adjust- compensatory unequal partition and R., p. May 10 Order. ment. The and sometimes the themselves turn, inadvertently to referred the "communi- ty parties. signing of the the of interest" On the Plaintiff, together the securi- The takes communi- 4. Defendant subject ty to him instruments and interest distributed ty of satisfaction be until outstanding thereby held indebtedness full note, principal both community. payment of (Emphasis interest, has been made. Plaintiffs com- 5. balance added.) ma- deducting the munity after interest goods chinery household is equally clear body of the order was $373,739.40 paid which shall be sum of and unmistakable: by the Plaintiff Defendant (b) DEFENDANT: TO THE R., of p. Partition Order follows: (1) is as his The Defendant awarded May 1982. separate property the follow- sole and Immediately following foregoing para- estate, ing payment subject paragraph the Order which graph is of outstanding of there- encumbrances monetary judgment, con- constitute a does on, security payment and the (nor cerning be no doubt which there can required be provisions hereinafter any): “DEFEND- there seem be does by him and on made behalf PAY THE ORDERED TO TO ANT IS Plaintiff. $100,000.00 cash sum of PLAINTIFF the —1 Parcel No. (45) forty-five days of the date within SOUTH, RANGE TOWNSHIP order.” MERIDIAN, THE MI EAST OF BOISE proceeded to The Order then outline COUNTY, NIDOKA IDAHO $273,739.40 by which the terms and manner 16: W k Section paid for purchase price balance descriptions proper- of other [Balance community be interest was to (Sup.Ct. 14890), p. No. ties R. omitted.] secured, and documentarily evidenced and H7. payment: the terms paragraph of that order reads: The final the Plaintiff’s The balance of 7. IT that each IS ORDERED $273,739.40 sum shall parties shall execute and deliver the paid to the Plaintiff the Defendant title, necessary instruments installments, (20) twenty annual bear- each to personal property, real and ing interest at the rate of TWELVE other, carry necessary fully out (12%) annum, per PERCENT and amor- distribution as here- 20-year period. The first tized over said provided. Id. at (1) payment fall due one annual shall pay- year date that the down to,” course, phraseology is a “Subject $100,000.00 paid, ment of or as art, can here used and in the context may agree. be parties The balance shall on, or contingent upon, conditioned mean to restrict- promissory reduced note Legal The See Barton’s provided that. in first ing payment advance saurus, p. “con Deluxe Edition (3) thereof, years right full to three with 624; Law Dictio tingent” p. Black’s at thereafter, by a prepay to be secured the same nary, Edition for 5th real mortgage estate on all words, 290, respectively. The pp. 1278 and in Defendant, property awarded to counsel, drawn question, in as Order security on the addition instruments by Judge to, signed agreed thereafter and irri- irrigation located on the equipment in immediately continue would Workman security ground, other gated and such practical George possession protection of the measures for Plaintiff’s originally been the ly all that which appear appropriate. interest that then co- community property, and entire estate, George in return had tenancy and es- mortgage note shall be and against him crowed, money holder selected an immediate with an escrow $100,000, for days pay with which to tion to set George over to the farm real parties it. The were both under or- estate as he had direct so announced at the hear- ing placed der of the where there had necessary execute all before just him—not Carmen’s partition proposi- documents and instruments to effectuate division, tion for even an George’s but also agreement whereby Carmen would first proposition division, for an even George deed cotenancy ownership George also a second proposition where realty, George would simultaneous- be buying he would out Carmen's undi- purchase ly from her means of a note vided interest in most the real mortgage one-half upon ownership in the property. proposition The second ad- realty. by George through Ling, vanced Mr. By analysis, way while Carmen and modifications, would serve as the basis of married, George remained neither individu pattern buyout for the later submitted ally separate had a marketable interest signature. to the court for George’s propo- any community property. their All that sition was that net property value was either of them had was interest which $891,688.80, and the interests of Carmen has been as moiety. Kohny described v. $445,844.40. were each Under Dunbar, (1912). 21 Idaho 121 P. 544 it, Carmen would have received moiety separate of each becomes a quarter-section, in a certain there- estate of either on a divorce by solely owning a property $184,- worth spouse. the death one pay 000. would then her another $185,537.76. paid, This would as

Upon divorce, be stated entry the decree of proposal: property ownership the Suchan changed separate into two Payment by plaintiff, pay- defendant undivided one-half interests.20 Each was year, able in not than less one nor more free to sell that undivided one-half interest years equal than ten in ten annual in- which, however, stallments, is ordinarily there with interest at the thereon Moreover, annum, standing market. rate per of 12% secured way, the terms of the divorce decree Section 16 R., strangely awarded defendant. Case No. ordered now (augmented 15460),p. to No. co-tenancy forthrightly owned in would be cash, If sold sold. both Carmen and Workman, having signed after If expect would to suffer losses. Order, later, Partition as observed contract, George sold on a would be de- supra, appear part to infer that Carmen work, prived of what had been lifetime having responded fault for to his and, yet, defaulted, buyer worse if the partitioner invitation act as —notwith- couple again divorced would once so, standing parties that both did and not- together co-tenancy thrown owners of a withstanding that it was his own definite large farm. intimation to the was in- he keep George, clined to farm intact for affairs, being existing That state of argued by George, brought readily why understood and his preparation about the Partition order attorney proposition would make the signature. and its submission to him for why they her attorney, Carmen and having accepted everyone sum, been well-ad- absolutely In is the Partition Order — Judge vised by predisposi- unequivocal. Contrary Workman his to what clear argument difficulty rehearing, 20. At oral on as of the was that we counsel that —and George agreement right Suchan was in that after en- agree be didn’t that she had the tenant decree, try George of the divorce Carmen and property that and so we common on all were cotenants: straightened appeal trying get were that on original ... It’s true the that divorce decree rehearing, Sept. argument out. Oral on common, parties did make the tenants in any 1986. question I don’t think about that there’s later, was done this manner—the most Judge read into it it con- not Workman being language capable ordinary con- of real estate transactions —was tained no awarding money argument judg- a not until re- strued as Carmen understood oral at $100,- Ling explained: and above Mr. hearing, ment for amount over where in the language 000. There is no Order the MR. LING: ... I’ll remind being judicially as im- capable of construed got judg- that I into case after the lien in favor. The pressing a Carmen’s and decree of divorce had been ment is not to found.21 word “lien” be becoming purpose my The entered. was to that be- involved decision obviously was in a trial questioned was whether or not cause it George position to award the undivided property designated had been the that in the one-half interest community. as was in fact cotenancy recording upon he the owned Court, know, you ultimately This de- then, Clearly, of the divorce decree. where there a termined that transmutation Order that the de- the Partition states agreement by community property a scribed real was “awarded as his upon conveyance death. The separate property” sole was Carmen’s Court determined that that was suffi- that flowed to undivided one-half interest transmute to com- cient to by That is her the decree divorce. clear. munity property. quoted clear equally What is is that language freestanding, specifi- was not but During the time that that matter was cally by language prescrib- conditioned an appeal, on the motion for obligation ing George’s furnish by Mrs. was filed Suchan. $273,739.40note, by with a “to be secured a in all stipulation, There was not defer- mortgage a real all of the real estate said, ence what Mr. has as to Smith property awarded the Defendant.” partition. order of terms agreements pro- several There were purely simply transaction was posals submitted to the court. The acquisition by for the sale Carmen and the court, hearing proposals, on those by George cotenancy real of Carmen’s own- made a determination at conclusion ership. easily It could have been of a hearing that it did not have—it parties involving transaction without disposition up a to break was not of all, parties the court at and the could have property, going to and felt that so advised and dismissed prop- continue to have the should partition proceeding. George would have erty suggested that there be to farm notes, signed 45-day one note two unse- whereby way provision for a some cured, larger other and the note for the would, fact, purchase Car- mortgage balance secured the same men’s interest. prop- called for in the Partition Order—all escrowed, Ling, Mr. erly BISTLINE: mortgage JUSTICE transcript reporter’s there a what and Carmen’s deed to being simultaneously. Why you’ve just recorded it recited? mortgage discussing “Although equitable may an be one Carmen's claims made gave Judge parties give predicated agreement after Workman con- mort- an struction of the Partition Order which divested gage, general is that an instrument rule urged ownership, Carmen of mortgage operate equitable if it as an cannot equitable mortgage. she had an Bruce merely has been or will be assumes a lien wrote: created; through purport it must its own does an [T]he Order not evidence intent efficiency to create lien." terms mortgage to create a Order purport, does not the Order of Partition Because by itself. It directs that be executed terms, mortgage, but directs its to create a future, point payment at some after the executed, independent instruments $100,000. equitable mortgage. cannot create 2d, general rule is Am stated in 55 Jur Mortgages, § 12: Yes, MR. judge LING: you JUSTICE BISTLINE: But knew it —I’m judge’s

sure the remarks— going? was I JUSTICE BISTLINE: found them MR. I LING: had not seen it until it minutes, the court Ibut didn’t find them was sent me judge to and taken to the reporter’s a anywhere in transcript. simultaneously, but did object. we not I’ll admit did object. we not not in We’re Well, Honor, MR. your LING: I’m not position a object because we were on positive about that I because haven’t appeal. was I How to come back and up, looked it but it was made Honor, say, your it, change we want to case, gave conclusion of the and he his that, hey, because were saying you we inclination not was to—and I think that’s coming you don’t have that much stated in both briefs—that he did not can’t come into court and offer some- really want to divest prop- different, thing way or offer to resolve erty farming. which he’d been He want- something you when don’t we’re believe give opportunity ed him an to continue premise right begin on the And with. farming suggested that be there guess I difficulty that’s the in these by purchasing method to resolve it it. things taking place continuing while And, result, as a there were some com- you’re appeal on original on the issue. But, munications and I discussion. argument rehearing, Sept. 2, Oral on Court, posi- would advise I was in a appeal tion that we were on we $373,- didn’t believe that there was explanation, plau- That it while seems 000 or some odd dollars due. enough, ques- sible nevertheless leaves the took position hey, We not that’s — why tion could not doc- have and, Carmen, community property you umented that it transaction would be way don’t have an There’s interest. subject to rescission or de- modification going I that was to come into court and pending upon George’s ap- the outcome of stipulate that she have a could peal challenging to this Court the trial x Something for number of dollars. was holding George’s separate court’s that going place, though, to take and were we property had been transmuted into commu- appeal. on The Order did of Partition nity property of both and Carmen. object come in. We did not to the terms subject When the same arisen Partition, and, frankly, I the Order of argument by George’s trial coun- on, believe it’s in the later that record largely sel had of the same vein as to George attempted complete and abide said, what was but did not mention by that Order of Partition when we could being conceding for not reason get stayed. agreed stipulated it was that go you JUSTICE BISTLINE: Before presented would for the Court's that, I’d ahead with like a little bit more signature. With Suchan on the clarity your participation. on doc- This by stand under examination Carmen’s at- ument was drawn Smith—no ar- Mr. torney: gument about that —it was laid on the Q. Now, agreed how we remember judge’s You Mr. desk. saw it. Smith’s acquire you that be able Car- would says this brief document was drawn men Suchan’s interest? you hearing in after had the front of (inaudible) A. I believe I don’t was offer,

judge, suggestion, or agreement. it, you approach whatever want to call Q. Well, you, you conjunction didn’t was made us your attorney stipulate tak- with lawyers worked out then and, judge you you acquire— en I how to the assume—did go judge when it taken? Honor, going I MR. Your am LING: No, object “stipulated.” There

MR. I did not. to the word LING: regard. partition I then received a order. which was submitted proposal awas Court, objec- that. I did see I reviewed not given proceeded be to to counsel, any, tions I did not receive stipulation. a not in the form of signed and then that. question no between counsel— There’s suggestion possi- as a made a to we had So, know, probably, “stipu- word I getting That was bility of a settlement. law, late,” that is a term art that we had advised Court it. We term; it a right that was was—is not But never in the agreed to it was that. by the proposal to the Court submitted stipulation. form of And, frankly, if I don’t know attorneys. just I have is stipulated

it is or not. All came as a result of— what stipula- was no written there ... [B]ut me counsel di- Let ask MR. SMITH: open It tion, stipulation court. rep- rectly. agreed, it whether a Wasn’t that we—the Court was a situation (inaudible)? resentative the Court was done you what felt would be indicated that, it, and then we discussed MR. LING: Yes. we felt the Court what then advised long it—as MR. SMITH: Wasn’t parti- method of be reasonable testifying— you are tioning property. testifying, Mr. I am not MR. LING: Smith, your Mr. what’s THE COURT: Smith, you understand that? position on that? I do realize that. MR. SMITH: Honor, I am Your MR. SMITH: Okay. LING: MR. is, partition was to trying establish your offer of a MR. Wasn’t SMITH: partition. agreed order Counsel $100,- pay way acquire interest to that— denies proper- of all the 000 and secure the rest Absolutely. MR. LING: ty, your that offer? wasn’t agreed —there was an MR. SMITH: proposal, yes. LING: That was MR. partition. order you accepted it— And MR. SMITH: it, I denied Mr. Smith. MR. LING: right. LING: That’s MR. SMITH: Well— MR. buying a method of MR. —as SMITH: right. All Let me— THE COURT: Suchan? out Carmen testifying, your He’s not MR. SMITH: method, no. As a LING: As a MR. Honor. present as a the Court method yes. THE COURT: order, with what the partition consistent do; it wanted to had indicated Court talking I am what MR. SMITH: about Transcript of Pro- right. that’s Partial Mr. Suchan understood. (em- 17,1983, pp. 6-10 January ceedings, way right. All THE COURT: added). phasis order—if Court understood argument will the semantical up settle that parties must face What the we "stipulation,” was, appealed over the word Order was never the Partition — Court challenged. show cause. The It has been had an from and never wholly de- years suggested to counsel that one-half over four and con- the trial Enough allowed to stated sired that Mr. Suchan be has been final. its farming under- that operation, counsel establish tinue his court and to, under- and it was plaintiff agreed would have standing were that terms presented to farming opera- in that it would monetary stood attorney, signature by tion, equity representing one-half attorney, knowledge of And the Court with the community property. object to he did mat- concession suggested to then counsel Undoubtedly, it. it, object he nor does in that proposed to the Court ter be 138 there was a during time frame George’s which either involvement in those farming op- parties might have moved erations, the benefits which have accrued relieved Undoubtedly, of it. had the him, paid the taxes on those bene- gone I differently, George fits.

would have done so. party Had either

sought stay of further proceedings be- APPENDIX low, while this Court deliberated Table of cases where the Court made a I, decided Suchan there is no reason to disparate award of assets compensating stay believe that a would not have been recipient smaller award with a granted, provided mone- protect- that Carmen was tary against award the other—none of ed resulting loss which cases had to do participation George’s continuing occupancy and use of property owned in cotenancy. farming equip- and Carmen’s ment. Lawson, 1. 444, Lawson v. 87 Idaho 394 (1964);

P.2d 1008 Jackson, 2. 330, Jackson v. 87 Idaho 393 CONCLUSION (1964); P.2d 18 sum, In it is clear from foregoing 3. Pipatti Ripatti, v. 94 Idaho 494 that the Partition Order was executory in (1972); P.2d 1025 nature, contemplating the transfer of Car- men’s interest in the real estate to 4. Hooker, Hooker v. 95 Idaho 511 only upon providing her with security (1973); and, P.2d 800 by way of mortgage. Thus, note and 5. McBride, McBride v. Idaho sale, the time of the execution those events (1987). 739 P.2d 258 having yet occurred, Carmen’s one-half In Lawson where the husband received yet passed interest had not George, the lion’s share of property the the writ of levy execution and notice of compensating monetary award to the wife only operated “right as to the title and judgment: interest of the defendant in to the above-de- plaintiff, Lawson, estate,” i.e., “The Richard scribed real is direct- George’s one-half pay ed to interest. the sum of [the wife] $25,000, payable thirty within Following rehearing, our course days decree, after date of this of action was to thorough make a more $2,500, per year eight years for without review of the record compare it to our interest.” opinion. so, first Having done I find it appeal, Supreme judgment On inconceivable majority that a of the Court judgment was: “The is modified in the prefers to adhere to the views and conclu- respect interest at the rate of six sions expressed, earlier but nevertheless percent per annum is allowed on the de- extend allowing credit to the Court for payments ferred ... from the date of the Workman to light reconsider judgment, March just equitable. of what is Clearly, monetary judgment there was a my For part, appears infra, I would $25,000, requirement and there was not reverse, based inescapable on the conclu- giving by mortgage. a note secured owner, sion that Carmen is still half and is Suchan, however, monetary there was a entitled to accounting years’ for the five $100,000. Assuming a defini- use of her property present which the own- “money tion had, judgment” necessary, ers meaning one-half have Ed., p. Dictionary, his mother and Black’s Law 5th brother. The trial provides Judgment. equitable powers, “Money exercise of its one: One quest justice adjudges remiss in its payment which which of a sum of erases this dark if day money, distinguished directing it did not ascertain from one ORDERED,

“IT AD- IS FURTHER AND DECREED that none of JUDGED to be restored act be done or an except upon those payments, said part judgment, or or transferred. A insuring the life of the defendant policies thereof, directing money or for a sum of upon his death but shall shall terminate money.” payment of a sum of capital upon said continue to be a lien Jackson, the district court In v. Jackson estate, against his a claim stock and “property of the defendant’s wife awarded Paragraph of the as set forth in XVIII fair one-third the net a value less than provision for Findings of Fact and with community as- all of the market value of voting to have all the the defendant Supreme Court sets.” On the long corporate so as rights of said stock receive at least one- held so that the wife he is....” half, directions accord- and remanded with Ripatti Ripatti, Supreme In v. provide compensating for a mon- ingly, but disparate property disposition: upheld a etary award: error, assignment appel- In his last findings court made of fact trial argues re- lant that he should not be par that the interests of both the effect month, purchase, per quired to at $225 by lump a sum ties would not be served half-interest in the ranch and his wife’s that re This course considers award. Appellant’s fixed income is $400 cattle. spondent has no means method of or month, disability pension from per a total making adjustment. a Were he re cash crip- Administration for the Veteran’s quired Paper Sup to sell the Union addition, appellant pling In arthritis. virtually destroy ply Company, it would customarily approximately earns asset; is, community respondent cattle each autumn. per year for sale of company forced sell the would be expenses support include His other present much less than its value. While mortgage payment of a two children ordinarily dispose the court should so aggre- month. In per at the rate of $100 give spouse community as to each terms, gate yearly usual income is of his her sole and immediate control $7,800, and court de- while share, Largilliere Largil determined v. $3,900,leaving a like amount cree absorb liere, (1931), 50 Idaho P. 362 children. support of himself and the hardship such a settlement would work a decree, in this case. The trial court’s provides trial court I.C. 32-712 § therefore, may provide respondent disposing com- of the wide discretion pay appellant share in upon property and homestead dis- munity otherwise, monthly installments or Ordinarily, marriage. solution of a trial secured whatever means the spouses sole and court should award proper. court deems 87 Idaho determined control of their immediate P.2d at 23. shares; may award all com- but the court subject to spouse one munity property to Jackson, as shows in the record on opposing spouse obligation pay appeal which is available in the State Law monthly installments its value half Library and in the Office Clerk here, where, best interests of Court, Supreme the district court also require that the the children impressed payments which a lien on future The trial family remain intact. home wife, and the the husband owed to the ordering of discretion excuse court’s Hyatt, who had Hon. Paul W. has not per month payments $225 Supreme justice earlier as a served statute or cause shown to violate a been Court, impressing of a understood that the not be dis- inequity,” and will a “serious lien, against general lien specific appeal. turbed against properly record- real Dar The Honorable specific judge, The district monetary judgment, required ed necessity of Cogswell, understood the language: also tion Order agreed which counsel having told by the Court that it after specific language entry money of a give intended to the bulk prop- of the farm judgment, and specific the creation of a George, erties to who would have to com- lien: pensate Carmen. ORDERED, IT IS FURTHER AD- agreement provided McBride JUDGED and for all Joy Shirly DECREED that husband’s, Ripatti to become shall cer- money judgment have personal tain items of each Ripatti way, Herman Wilford $20,305.00 and make the wife sum whole: plus of interest thereon from the date of this below Decree here $48,154.00 The sum of to make an even at per written the rate of 6% annum. division of payable the assets This a against shall be lien the as follows: following property, described to-wit: $15,000.00 The sum of within cash one [Property Description.] year of Agreement, the date of this said sum bear prepay- no interest Hooker, In dispar- Hooker v. there was a penalty. $33,154.00 ment The balance of ate An award. 80-acre tract was awarded paid will be per at the rate of $406.78 husband, to the separately who owned ad- including month percent interest at ten joining land: (10%) per annum. Interest to com- The testimony district court heard mence on the date of the separation with purportedly two appraisal disinterested payment first the due on date the as to witnesses the value of the acre separation. payment The next is due on witness, tract. One Gridley, Mr. as- 10th of following the the month. Hus- cribed per a value of to the $100 acre right prepay band will any have the at other, Lee, property, while the Mr. esti- time; provided, however, will there be a acre, mated the value per a $200 prepayment penalty any prepayment for price at Mr. Lee said would he as follows: purchase addition, the In property. both During year $6,846.00, the the 1st sum of parties value proper- estimated the of the ty. Respondent, initially claiming after During year the 2nd sum the property acre, per was worth $200 $5,621.00, retracted initial estimate and attached During year sum 3rd per property. $100 value acre to the $4,360.63, Appellant pur- testified that she should During year sum 4th per chase the $175 at acre. The $3,067.85, disposition trial court its proper- During year sum the 5th ty respon- awarded entire tract $1,746.54, and dent, per valued the at $150 During $401.40, year the sum of 6th acre, gave appellant a lien on the $6,000, being half years commencing one the value of from the the property.1 separation, date and thereafter prepayment penalty. will there be no McBride, In ap- McBride v. the Court proved Property Agreement Suchan, readily Settlement As here in under- parties previ- whereunder the any language, standable the husband was to —without ous property, subject intimation the trial court as to what have the real indebted- it, ownership it intended to own do—worked out their ness the entire common, language mortgaged solution in the real would be run-of-the-mill as that which he owe was used secure the debt Mrs. attorney drafting the Protec- McBride. willing reputable ready, 1. Mrs. has Hooker never understood how the broker witness Supreme being purchase per uphold $200.00 her could made an able to 80 acres at acre, unwilling per $150.00 seller at when acre. expressed in dertakings Agreement. give wife a husband shall PERFORMANCE: SPECIFIC mortgage on the above described real Agree- any of this the event of breach securing purpose of property for the thereof, by ment or term or condition This will above indebtedness. party Agreement, the other either to this existing of Trust at junior to the Deed pr right, Idaho, party shall have the at his Troy, Troy, Bank of the First a suit option, Deed of Trust to institute and maintain anticipated Second $6,000.00 jurisdiction spe- approximate competent amount of a court of Troy, Idaho. Troy, Bank of Agreement, the First performance cific of this mortgage and note on above and condition there- every each and term default____” property shall be held described real of, by party in Troy, Bank of collection at the First agreement there At the conclusion of fees, Idaho, any, if Troy, and collection incorporation and provision was the equally par- between the will be divided in the event of a merging of its terms further, ties; hus- provided, that after divorce. $15,000.00 within paid has cash band agreed Par- than that the Suchans Other (1) Agree- year of the date of this one monetary judg- tition Order itself was a aforesaid, agrees wife ment as $100,000, agreed upon down ment for the property ex- the above described release payment, days, in 45 and the due following de- cepting therefrom the note payment down McBride parcel: scribed year, not one payment due in one there is IN A PARCEL OF LAND LOCATED In neither difference. whit of discernible THE THE NW Vi AND SW 'A SE Vt any ambiguity whatev- instrument is there NE Vi OF SECTION TOWNSHIP er. NORTH, 3, W.B.M., RANGE MORE AS

PARTICULARLY DESCRIBED

FOLLOWS:

[Description omitted.] was, Suchan, provision for

There as in necessary delivery

execution and

instruments, provision for the reme- and a

dy specific performance: OF INSTRU-

10. EXECUTION agree covenant and

MENTS: execute, acknowledge such and deliver proper and neces-

instruments as shall be carry the un-

sary to out and effectuate

Case Details

Case Name: Suchan v. Suchan

Court Name: Idaho Supreme Court

Date Published: Jul 14, 1987

Citation: 741 P.2d 1289

Docket Number: 15460, 15512 and 15143

Court Abbreviation: Idaho