*1 793P.2d206 BANK,
TREASURE VALLEY
Plaintiff-Counterdefendant-Respondent,
Donald P. BUTCHER and Helen
Butcher, Wife, Husband and
Defendants,
Harmon H. Johnson and Elizabeth
Johnson, Wife, Husband and
Defendants-Counterclaimants-Appellants.
Harmon H. JOHNSON and Elizabeth
Johnson, Wife, Husband and
Third-Party Plaintiffs-Appellants,
David L. DYKSTRA and Jackie K. Wife, Husband and
Third-Party Defendants.
No. 17763.
Supreme Court of Idaho.
Hamilton, Clark, Drescher, Michaelson & Idаho, Nampa, for defendants-counter- claimants-appellants. Clark, Mark L. ar- gued. *2 and Boise, Idaho, trust notarized ship. deed of was Uranga Uranga, The & 26, Canyon County on June plaintiff-counterdefendant-respondent. recorded the Uranga, argued. Chicago Company Title was L. 1981.
Louis named trustee. McDEVITT, Justice. 1981, of 26, Dykstra, on behalf On June buy partnership This case arose out of a agree- entered a loan partnership, into the buying partner the a issued out which (“T.V. Valley Bank Treasure ment with of to promissory note with a deed trust $45,- B.”). the loaned T.V.B. by held The is- the of by a deed loan was secured 697.62. The pertain partner’s to a sues involved Holly in favor on Street trust proper- in real of an ance by David deed was executed of T.V.B. effect ty partnership, owned nota- of the Dykstra behalf on mortgagee such has on a 26, Pio- on rized recorded June and knowledge effect actual County of was Company Canyon neer Title subsequent on a of a interest has executing the Prior to trustee. named court The trial held encumbrancer. personally advised proper- of certain plaintiff the owner of about the existence an officer of T.V.B. that, simple the defendants ty in fee and trust of prior deed of favor title, interest in right, lien or or have and parcel told them on same the real a necessary for to obtain T.V.B. 30, 1975, and November Richard On agreemеnt from subordination wife; Butler, Joyce and David and husband Beckley’s deed priority over order to have wife; and and Jackie husband warning, Notwithstanding this of trust. and Merle and Laura husband agreement with the loan T.V.B. went ahead wife, partnership of general formed the Beckley. did contаct and not Enterprises (“the partnership”). DB2 15, 1983, Merle W. August On 1976, 11, partners exe- On November of of trust assigned his interest the deed warranty transferring the real cuted 2,1981, and to Donald P. Butcher February Idaho, Nampa, Holly on Street Othello, Washington. Helen Butcher of L. subject litigation, partner- to thе this and record- assignment This was notarized original ship. 1986, 15, 1983. In after August ed on (6) partners that all all required six execute promissory partnership defaulted on its con-, deeds, securities, promissory notes and T.V.B., statu- T.V.B. commenced note to partnership. The tracts on behalf of the against on tory foreclosure general subsequently all executed wives prop- to the the deed of trust powers attorney respective so that their pending mailed notice T.V.B. sign their On husbands on behalf. Butcher and to Donald T. trustee’s sale 15, 1976, partners exe- January all of the Helen L. Butcher. to the cuted an amendment 15,1987, trust- T.V.B. On obtained agreement which authorized execution property at ee’s deed to partners only. the male documents $40,000. price sale. trustee’s partner- from the The Butlers withdrew 1987, December, November 2, 1981, February David shiр in 1980. On prop- negotiated for sale T.V.B. Beckleys’ acquired partner- L. action, the erty to defendants in this $15,000, plus price was ship interest. The Johnsons. $20,000 promisso- promissory note. its February filed On by a deed trust to ry note was secured against the Butchers. prop- quiet title action partnership’s part of the assigned the the Butchers Beckley. March granted by Dykstra erty promissory Dykstra had executed note the note Dykstra executed Beckley, along the deed identifying delivered in his own name without April Johnsons. On of trust to the being the land 1988, the joined Johnsons were defen- duties of the in relation to the dants in quiet T.V.B.’s action. A determined, hear- shall be ing was any agreement them, held on T.V.B.’s motion for sum- between rules____ mary judgment following added.) September (Emphasis 1988. Af- consideration, ter granted trial court provision We read this any to mean that the motion. appeal. The Johnsons agreements partners, made between pertaining rights parties Both duties of the raise numerous issues on *3 partners in relation to the appeal, are pertain all of which to the ultimate controlling partners part- as to the and the question, which is whether the trial court nership. ruling, erred in summary judgment, on T.V.B. was vested with title to Holly the undisputed evidence is that as of property. Street question This ultimate 15, 1976, January partnership agree- the by determining resolved Dykstra’s whether ment in proceedings provid- involved these grant Holly property’s of the Street only ed that partners the male re- were of Beckley conveyed trust to a valid inter- quired conveying to execute in- documents est that partnership’s encumbered the in- terest of the partnership.
terest in the
If the
1980,
part-
the Butlers withdrew as
convey
deed of trust did not
a valid inter- ners.
est,
title;
did,
then
if
T.V.B. has
then we
Dykstra
spouse
This left David
and his
question.
must address a second
That
Beckleys
partners
and the
part-
as
question is whether the bank had actual
nership
partnership prop-
which owned the
notice of the
encumbrance on the
and the effect of that
February
Dykstra acquired
notice.
only
the
other
interest remain-
matter,
preliminary
As a
we note
ing,
Beckleys.
that of the
Concurrent with
in summary judgment proceedings
purchase,
closing
at the
of the
liberally
facts are to be
construed in favor
Beckley partnership
ance of the
motion,
party opposing
of the
who is Dykstra
pur-
consideration of that
given
also to be
of all
benefit
favorable
chase, Dykstra executed and delivered the
might
reasonably
inferences which
trust,
promissory notе and deed of
the sub-
drawn from the evidence. Doe v. Durts
ject of this action.
chi,
110 Idaho
execute and encumber A. THE PARTNERSHIP AGREE- property.” MENT question act can be no that this introductory clause to I.C. agree- was authorized provides: 53-318 § question ment. There can be no Determining Rights delivery 53-318. Rules execution and of the note and rights proceed- and Duties of Partners. —The and of of these real lien conveying ment or interest by the ings, was authorized that it is on its face partners therein at estate must evidence is in a property the record to which delivery the time execution partnership name. those instruments. course, is, that sec elemеntal It REQUIREMENTS B. STATUTORY con statute must be tions of a common THAT THE PARTNERSHIP BE meaning give together so as to them strued NAMED IN THE CONVEYING Sampson Layton, possible. whenever DOCUMENT P.2d 883 Norton 86 Idaho The note and deed of trust executed Idaho Employment, 94 Department by Dykstra purchase connection 928, 500 P.2d interest, Beckley рartnership was reason behind and the rationale by Dykstra in his own particular adoption Uniform identifying described
without
provision
I.C.
Partnership Act
being
53-308(3)
response
in direct
asserts, as it did to the
partnership. T.V.B.
*4
title
required
which
that
common law view
court, that
of the deed of
trial
the fаilure
legal
by recognized
held
to real estate be
comply
requirements
with the
trust
necessitating
holding by the
persons,
a
53-308(3)
I.C.
invalidates
instrument.
§
not take
partnership could
courts that a
53-308(3)
Code
states:
Idaho
§
firm
realty
title to
in the
name.1
Partnership property.—
53-308.
Bromberg
As
and
On
noted
Crane
******
(1968),
Bromberg
Allen R.
Partnership, by
Any
property may
3.
estate in real
be
page
at
223:
acquired in
Title
partnership
name.
law
The
solution to the common
obvious
conveyed
acquired
only
so
can be
in the
partner-
non-entity view was
authorize
partnership name.
(оr any other
ships
legal title
to take
53-310(2)
argue
The Johnsons
that I.C. §
name,
estate)
this is what
in the firm
conveyance
prop-
of the real
authorized
little
done.
can be
the U.P.A. has
provides
That
that:
section
says,
doubt
the Act means what
that
property
real
in the
is
profound
оne of the more
[W]here
or that this is
the partnership,
conveyance
(Foot-
name of
a
changes it has made.
theoretical
by
name,
partner, in his own
executed
a
omitted.)
*5
parcel
same
in
taking
which the
bank was
partnership. Such
probably
title would
interest,
sеcurity
deprived the bank of its
against
be bad
a later B.F.P. [bona fide
right
rely solely
to
on the record title con-
purchaser] taking
cerning
At a
firm
recording
unless the local
minimum,
put
T.V.B. was
on notice to in-
acts caused the
deed to be indexed
quire further. The actual notice rеceived
in the firm name.
It
similarly
security
T.V.B.
this case renders its
against
if,
bad
an execution
creditor
granted
instrument
inferior
to that
acts,
recording
position
he is in the
Powlus,
Beckley. Fajen v.
96 Idaho
regards
a B.F.P. as
unrecorded
record before us is that at the time deed of trust was a lien on tra, partnership, on behalf partnership property entered executed on behalf of financing agreemеnt T.V.B., attempt vary with he is an personally informed an officer at T.V.B. terms of the deed of trust to and is overruling it. Hall, effectively in- if not finding absent a precluded, event, I concur. either ambiguous, on the au- based strument Evidence and thority of the Idaho Rules of Hall, holding of this Court in Hall v.
by the
483,
116 Idaho applicable is not parol rule evidence
here, question as title to was, by Dykstra act-
'lie, enсumbered ing authority P.2d 211 attempt vary the terms of is no ROBERTSON, Deborah issue question. The sole the instrument Plaintiff-Appellant, Dykstra complied with I.C. is if the acts of 53-310(2). they hold that We .did. MEDI- REGIONAL MAGIC VALLEY impact of Hall need not address the We CENTER, CAL with the resolution v. Hall connection Defendant-Respondent. this case.
No. 17924. ON APPEAL II. ATTORNEY FEES Idaho. Supreme Court of pursued frivolously not This matter was parties genu- did raise by either of the resolved-by this questions of to be ine law Therefore, attorney fees are
Court.
granted appeal. this
Summary judgment is reversed and con- proceedings is remanded for
matter
sistent herewith. Costs are awarded
appellants.
BISTLINE, BOYLE, JOHNSON
JJ., concur.
BAKES, Justice, concurring Chief
specially: opinion except
I concur in the Court’s distinguishing difficulty I some have Hаll, 116 Idaho
our recent case of Hall v. difficulty I have 777 P.2d
understanding why parol is admis- evidence vary the terms of the
sible parol in this case when evidence
of trust vary the terms of the not admissible to testify permit To
deed Hall. summary judgment pro-
(by affidavit of trust executed
ceeding) that the deed actuality a deed by him was
personally is as
of trust executed of the terms of written
much a variation parol as was the evidence
document warranty
attempt vary the terms of to show that the
deed in Hall v. Hall
was, gift decision part, deed. Our certainly limits the decision Hall
today
notes
equitable
passes
part-
Partnership
The rationale of
Uniform
provided
is
nershiр,
the act
one within
clearly depart
that which
Act was to
from
authority
partner
under the
by
common law.
had
held
been
1
provisions
paragraph
of section 53-
however,
authors,
Partnership Act
Uniform
309.
partnership interest
recognize that a
did
is
not the
The issue whether or
note
part-
in the
conveyed
other than
be
by Dykstra
trust
Beck-
deed of
executed
name,
in I.C.
nership
as
reflected
a valid lien on the real
ley created
convey-
53-310(2),
long
partner
§
trust.
described
that deed of
so.
authority
to do
ing the interest had
did
held
In this
we have
that
urges
only рossible
inter-
case
53-310(2)
authority pursuant to the
is
have the
pretation of
I.C. §
sections,
I.C.
ship agreement.
two
only
effective where the
deed would
be
53-310(2),
53-308(3)
permit the
I.C.
conveyance
initial
had been made
§
§
legal
conveyance
title under
only by partnership name but еxecuted
53-308(3),
equitable
individual;
words,
and the
that the instru-
terms of I.C.
other
§
Knee,
(Iowa
v.
Bankers Trust Co.
really
property.
N.W. 549
263
A
can
own
1.
Crane,
1935).
cases are cited in
property of
mem-
Earlier
the firm is owned
Criticism,
Blumenshine,
Partnership Act—A
Harv.
28
thereof. Adams 27 N.M.
bers
Uniform
(1922);
and Brom
Woodward
L.Rev.
770 n. 65
Crane
204 P.