32 P. 205 | Idaho | 1893
Action to foreclose mortgage on real estate. The facts, as near as we can make them out from the record, which is very incomplete and unsatisfactory, are, in substance, as follows: On the fifteenth day of December, 1886, one Archibald D. Thompson made and executed to one John
Respondents contend that appellants have no standing in this court, because their notice of appeal, as the same appears in the transcript, “is not directed to the clerk of the court below.” We know of nothing in our code requiring such a direction. Section 4808 of the Revised Statutes of Idaho, cited by respondents, is as follows: “An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney.” The notice of appeal, as it appears in the record, is in strict compliance with provisions of said section. .The record shows that the notice of appeal was duly filed with the clerk, and served upon the attorney of the adverse party. The proposition that the appeal must fail because the notice of appeal does not appear to have been “directed” to the clerk of the court below is decidedly attenuated.
Respondents further contend that “this being an appeal from the judgment, and no part of the evidence being before the court to explain any objection or exception taken at the trial,” this court can only look to the complaint to see if the allegations are sufficient to sustain the judgment. The transcript contains what is denominated therein an “agreed stipulation of facts,” “which shall be used upon the trial and hearing of this case as the evidence therein,” and this stipulation is embodied in, and made a part of, appellants’ bill of exceptions; and the following is the closing paragraph of said stipulation: “We agree that the above is all the evidence in this case, except that of Norah Linehan, this day taken” — and is signed by both the attorneys for the plaintiffs and defendants. It is
The answer of defendants to the amended complaint of plaintiffs admits all the material averments therein, and then proceeds to set forth the matters of defense relied upon, to wit: The execution of the mortgage by Thompson to Byrne; the assignment of same to defendant, Norah Linehan, on March 13, 1889; the execution of the deed of the premises covered by the said mortgage, by Thompson to Norah Linehan, on March 30, 1889; the deed from Morrill to Norah Linehan, of same premises, on February 21, 1889; and the deed from the assessor and tax collector of Alturas county to said Norah Linehan, of the same premises, on the ninth day of March, 1891. All of these conveyances were admitted in evidence and considered by the court, upon the hearing of the case, as appears by the “agreed stipulation of facts” above referred to, and the bill of exceptions. TJpon the trial the appellants offered to prove that the writing upon the assignment of the mortgage given by Byrne to Norah Linehan, to wit: “Have received the within money to satisfy the mortgage that this refers to by deed from A. D. Thompson. [Signed] Norah Linehan” — as well as the writing on the face of the note accompanying said mortgage, to wit: “Beceived payment in full. [Signed] Norah Linehan” —were so made by said Norah Linehan for the sole and only purpose of releasing the said A. D. Thompson from any personal liability on said note or mortgage, and not for the purpose of canceling the said note or mortgage, or merging the same in the title to said property acquired by her under the deed from Thompson. This evidence was excluded by the court, on objection of plaintiff, upon the ground “that the writing could not be set aside or varied by parol, and that by said writings said note and mortgage were 'paid,, and ceased to exist, .as against everybody.” It was held in some of the earlier cases “that one purchasing an equity of redemption cannot set up a prior mortgage of his own, nor, consequently, a prior mortgage which he has purchased, against subsequent encumbrancers, of which he had notice, or, in other words, that the mortgage would, in equity, alwa3rs merge. This dictum has been repeatedly disapproved by the ablest judges, and must be
There is nothing in this record which warrants us in assuming that the defendant, Norah Linehan, either took the conveyance of the property in question from Thompson subject to the mortgage of plaintiffs or ever assumed or agreed to pay the same, as a part of the, consideration for said deed, or otherwise. In the absence of any such agreement or assumption of liability on her part, we do not see upon what principle
The second exception of appellants is covered by what we have said in reference to the first, and the same may be said of the third exception. We are not informed by the record what, if any, ruling the district court made upon the deed from C. A. Morrill to Norah - Linehan.
We find no error in the holding of the district court that the tax deed to Norah Linehan should have been made by the assessor and tax collector of Elmore county, he being the successor in office of the assessor of Alturas county, so far as the land in question was concerned.
There appears what purports to be a supplemental complaint, and an answer to supplemental complaint in the record, but we are unable to discover what figure they cut in the consideration or decision of the case. There were no findings by the court upon any of the issues presented by the answer of the defendants; but, as no exception was taken thereto, we are not called upon to consider the matter. The judgment of the district court is reversed, and the cause remanded for a new trial.