39 P. 557 | Idaho | 1895
Lead Opinion
This is an action to remove a cloud from the title of mining property. The facts, concisely stated, are as follows: Appellants brought suit in the district court of the fourth district of Idaho, for Alturas county, against certain parties, including one O. E. Young, the husband of respondent, upon an express contract for the payment of money, and, at the time of commencing said action, caused a writ of attachment to be issued. An alias writ was issued, directed to the sheriff of Shoshone county, under and by virtue of which said sheriff levied upon certain mining property in said Shoshone county, which property appears upon the records of said county in the name of respondent, the wife of said defendant O. B. Young, and, upon the record, purports to have been conveyed to said respondent, Helen L. Young, by one A. P. Horton, “in consideration of friendship and esteem.” The respondent, at the time of said conveyance, was engaged as a teacher in the public schools of Shoshone county, and was the wife of the said O. E. Young, “earning her own living and support.” Said alias writ of attachment was, by the sheriff of said Shoshone county, levied upon the interests of respondent in said mining propertjr, as appears by the following return of the said sheriff, indorsed upon said writ, and recorded in the records of said-Shoshone county, as provided by statute: “To the recorder of Shoshone Corndy, state of Idaho: You will please take notice that under and by virtue of a writ of attachment issued in the within entitled action, out of, and under the seal of, the dis
It is claimed by the appellants that the levy of the attachment and execution created no cloud upon the title of respondent, for the reason that it is alleged that the deed from Horton to the respondent is one of gift, and not of purchase, which, under the statutes of Idaho, would make the property conveyed thereby the separate estate of the respondent. Concede this, and yet this very fact is controverted by the notice of levy of the attachment, and the notice of levy and sale under the execution, both of which are by the statute of Idaho made matters of record in the county where the property is situated. The interest of respondent is levied upon as community property. It is advertised to be sold as community property. “Equity interferes to remove clouds upon the titles, because they embarrass the owner of the property clouded, and tend to impede his free sale and disposition of it.” (2 Am. & Eng. Ency. of Law, 298, note 1, and cases cited therein.) This rule is peculiarly applicable to the kind of property involved in this action, to wit, mining property. All dealings in this kind of property must, of necessity, be, to a great extent, speculative,
It is claimed by appellants that respondent has a clear and adequate remedy under the provisions of section 4538 of the Revised Statutes of Idaho, providing for an action to quiet title. In answer to this contention, counsel for the respondent insists that such an action would be upon the equity side of the court, and that the proceedings in this ease are virtually brought ■ under said section, and that the relief prayed for by injunction is only an incident. We are inclined to accept this theory of counsel for the respondent.
Section 4539 of the Revised Statutes is as follows: “If the defendant in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff cannot recover costs.” No answer was filed in this case. The argument of the demurrer was heard on February 14, 1894, on the part of plaintiff, and submitted, there being no appearance on the part of defendants. On June 13, 1894, demurrer was overruled, and default and decree ordered entered. Assuming this to have been, as is claimed by respondent, an action based upon section 4538 of the Revised Statutes, no costs should have been adjudged against the defendants.
There is evidently a mistake in the decree in this case. By the terms of the decree, the defendants are enjoined from executing their judgments. The respondent was not a party to
We have not discussed the questions raised by the appellants, as to misjoinder of parties, and the question of the jurisdiction of the district court for Shoshone county, as we do not see any merit in the points raised. Even the authorities cited by appellants seem to be conclusive against their position. The order of the district court overruling the demurrer is sustained, and the decree of the district court is directed to be amended, in accordance with this opinion. Costs to appellants.
Rehearing
on rehearing.
We have given the petition for a rehearing, and the authorities cited therein, a careful examination. There is nothing new presented, nor, in our view, aught that should prompt us to change the decision already rendered.
