« PreviousContinue »
in a similar way he cites the case of Huff-, when an association went into a receiver's hands, man v. Wilhelm, and these two citations are the statute of limitations began to run against
an unmatured mortgage held by it. the only reference made to these cases in the entire brief, and no where is the court Appeal from District Court, Weber Councited to where these cases may be found.
ty; J. A. Howell, Judge. Now it seems to us that common sense and
Action by Edward B. Graves, receiver, reason would convince attorneys that it is not against Flora I. Seifried and others. From the duty of this court to run the gauntlet of the judgment, plaintiff appeals. Affirmed. the entire legal world and examine the Reports Henderson & Macmillan, for appellant. of all the states of the Union, and all of the John E. Bagley, for respondents. courts of the world, to find cases referred to in briefs, where the counsel are too in- STRAUP, J. 1. The appellant, plaintiff dolent to cite the volume and page where the below, brought this action on the 29th day case may be found to the court. It might of April, 1904, to foreclose a real estate mortas well be understood first as last that this gage dated March 1, 1892, and executed court will not use or quote authorities cited and delivered by the defendants Flora 1. in briefs of counsel, where the court, volume, and IIenry F. Seifried to the North American and page is not cited, so the court may ex- Savings, Loan & Building Company. The amine the original authorities and compare mortgage was given to secure the payment them with the quotation and determine its of a promissory note of even date in the correctness. Now, we think, while the writer sum of $100, and payable "in three years of the brief for defendant in error is de- from date and before nine years from date, voting so much time to directing the Legis- and at the time when stock No. 4129 of the lature in their line of duty, that he might North American Savings, Loan & Building put a little attention to his own conduct, and, Company of St. Paul shall mature, and each before seeking to remove the mote from and every share of said stock be of the value his brother's eye, that he cast the beam of $100." There was a provision in the note out of his own eye. We make this remark that "after failure of three months to pay for the benefit of all attorneys practicing be- any installment of interest or monthly payfore this court, that they may understand,
ments due on the stock, the whole note shall when they cite authorities to this court, they become due and payable.” In the mortgage should cite the court, the volume, and page of
it was provided that, in default of such paythe report, and, when they call the attention
ments, the principal sum "shall, at the elecof the court to errors in the record, they
tion" of the mortgagee, become due and should cite the court to the page of the rec
payable. It was further provided by the ord.
mortgage that it was given "to secure a loan Having examined this entire record, and
made on eight shares of stock in said North finding no reversible error therein, the ac- American Savings, Loan & Building Company. tion of the district court is hereby affirmed,
the monthly payments on which amountat the cost of the plaintiff in error. All
ed to $1.80," which the Seifrieds promised Justices concurring, excepting BURFORD, C.
to pay until the stock became fully paid. J., who, having tried the case below, took
It was further provided that if the Seifrieds no part in this decision.
should pay the sum of $400 and interest as evidenced by the promissory note, or should
pay the installments of interest due on th(31 Utah, 203)
note and all fines and monthly payments due GRAVES . SEIFRIED et al.
on the stock until it became fully paid (Supreme Court of Utah. Nov. 10. 1906.) and of the value of $100 per share, and 1. LIMITATION OF ACTIONS-MORTGAGE FORE
should then surrender the stock to the comCLOSURE-AVAILABILITY TO TIIRD PERSONS. pany in payment of the note, then the mortWhere a third person acquired an interest
gage was to be void, otherwise to remain in mortgaged property under a tax deed, she could invoke the statute of limitations as against
in force. the mortgagee, though it may have been waived In an action by the state of Minnesota by, or not available to, the mortgagor.
on relation of the Attorney General of that 2. SAME – RIGHT UNDER DEFECTIVE Tax
state, the plaintiff, on January 8, 1898, was DEED. The fact that the tax deed, under which de
appointed receiver of the North American fendant claimed an interest in mortgaged prop- Savings. Loan & Building Company, and an erty, was so defective as to be inoperative to
adjudication had that it then was, and for convey good title, did not prevent her from pleading limitation against the mortgagee; her
a long time prior thereto had been, insolequitable lien giving her suficient interest in vent; that it had ceased to do business, and the property.
was no longer à going concern, and was 3. BUILDING AND LOAN ASSOCIATION
unable to carry out the purposes for which SOLVENCY-LIMITATION OF ACTIONS--ACCRUAL OF RIGHT-MORTGAGES.
it was organized; and it was thereupon proSince the anpointment of a receiver to wind hibited from doing business. Thereafter the up the affairs of an insolvent building and loan
plaintiff was appointed receiver of the comassociation works a practical dissclution of the
pany in and for the district of Utah. The association, and the mortgage indebtedness of its borrowing members becomes immediately due, sum alleged to be due on the note was
$296.35, with interest due and payable since January 13, 1898. It was alleged that the defendants N. H. and S. L. Ives and Mary B. Crossley claimed an interest in the real estate, and they therefore were made parties defendant. The Seifrieds defaulted, the Iveses filed a disclaimer, and Crossley answered, pleading the statute of limitations, and asserting title to the real estate by virtue of a tax deed. On the trial, after plaintiff had introduced the note and mortgage and rested, the defendants Crossley, over plaintiif's objection, introduced in evidence the tax deed executed and delivered to her on the 16th day of May, 1902, by the county clerk and ex-officio county auditor of Weber county, conveying to her the real estate in question, a lot situate in Ogden city, which theretofore, and on the 28th day of December, 1897, had been soid to pay the sum of $12.57, general taxes and costs assessed und levied against the property for the year 1897, and assessed to Flora I. Seifried, in whose name the title to the property then stood.
The deed, among other things, recited the assessment and levy of taxes by the proper officers; that the treasurer furnished each taxpayer, whose residence or place of business or post-office address was known, a notice of the amount of the tax assessed against him, when and where payable, and that such tax would become delinquent on the 15th day of November next thereafter; that the tax remained unpaid, and became delinquent; that the treasurer thereafter published in a newspaper printed and published in Weber county, state of Utah, and having a general circulation in that county, for the period required by law, a list of delinquent taxes showing the amount of taxes assessed against the land in question, and the party assessed therewith, for the fisial year ending December 31, 1897. The deed further recited that the property assessed, levied upon, and advertised (fully described) was, by the treasurer, on or after the third Monday in December, 1897. to wit, on the 28th day of December, 1897, offered for sale to pay the taxes, with the costs and charges thereon, at public auction in front of the county courthouse in said county, and that M. H. Ives bid the amount of the taxes, and costs, assessed against the property, amounting to $12.57, and that the land was thereupon sold to him, and a certificate of sale issued, which was thereafter assigned by him to the defendant Crossley; and that the real estate was sold subject to redemption, and that no redemption had been made. The deed was executed by the proper officer, and properly acknowledged. In appellant's printed abstract, where a copy of the deed appears, the face of the deed shows that the property was assessed to Flora I. Seifried; in the transcript, where a typewritten copy of the deed appears, it shows Flora J. Sig
fried; and in other portions of the transcript, where the deed is referred to, it shows Flora I. Siegfried. The defense also put in evidence the certificate of sale showing that the property was assessed to Flora I. Seifried. The certificate appears to be regular on its face, and in compliance with the statute. There was also admitted in evidence the delinquent tax list as published, showing the property assessed to Flora I. Sigfried. Evidence was also given that the property was assessed to Flora I. Seifried, and that the tax notice was mailed to her. It was further shown that the defendant Crossley paid the taxes on the property for the years 1898 to 1901, both inclusive, amounting to something like $81. It was also shown that she was in the actual possession of the property. Upon findings made by the trial court, plaintiff's action was held barred by the statute of limitations. It was also held that the tax deed was valid, and that the defendant's title thereunder was superior to plaintiff's mortgage lien. To reverse this judgment, the plaintiff has prosecuted this appeal.
2. It is claimed (1) that the court erred in holding the action barred; (2) in admitting in evidence the tax deed; (3) in admitting in evidence the publication of the delinquent tax list; and (+) in holding the tax title good. IIolding, as we do, that plaintiff's action is barred by the statute of limitations, it is unnecessary to pass on the questions relating to the alleged irregularities of the tax proceedings, or as to whether the tax deed was sufficient to operate as a conveyance of title, and, therefore, such questions are not decided by us.
Section 2855, Rev. St. 1898, provides that civil actions can be commenced only within the periods prescribed after the cause of action shall have accrued. Section 2875 provides that an action upon any contract, obligation, or liability founded upon an instrument of writing shall be brought within six years. Section 3198 provides that there can be but one action on any debt or for the enforcement of any right secured by mortgage upon real estate, which action must be in accordance with the provision for foreclosure of mortgages. The claims made by appellant are (1) that the defendant Crossley is not in position to invoke the aid of the statute; (2) that the tax title, being fatally defective, she cannot take advantage of the running of the statute; (3) that the cause of action did not accrue until the principal sum was due as specified on the face of the note, or until the mortgagee elected to declare the principal sum due because of the default in the monthly or interest payments, which election was not made until the suit was commenced. The first and second propositions may be discussed together under the question: Who may invoke the aid of the statute? The position taken by appellant, that to entitle one to invoke such aid he must be a party to the
written contract, is not tenable. Nor, con- a prior mortgage may invoke the aid of the fining the inquiry to the case before us, is it statute as against the mortgage, notwithessential that the defendant Crossley should standing the mortgagor neglects or refuses show a perfect title under her tax deed. To to plead the statute, or that by reason of so assert, is, in effect, to say that the statute his acknowledgment, or of his absence, the can be interposed only by one who has other- running of the statute as to him may have wise a complete defense to the action. In been suspended. IIill v. Hilliard, 103 N. C. case of foreclosure of mortgage, the statute 34, 9 S. E. 639; Schmucker v. Sibert, 18 Kan. may be invoked by any person who has an 110, 26 Am. Rep. 70.); Coster v. Brown, 23 interest in and to the real estate sought to Cal. 142; Frates v. Sears, 144 Cal. 246, 77 he foreclosed. The argument is made that Pac. 905; Watt v. Wright, 66 Cal. 202, 5 the right to interpose the statute is a personal Pac. 91: Corbey V. Rogers, 1552 Inc. 169. privilege of the Seifriedis, the mortgagors, 52 N. E. 71S. Though it may be assumed that which could have been waived, and was waiv- the tax deed, because of its claimed impered by them by their failure to plead the fections, and because of the alleged irregustatute; and, further, that they could not larities of the tax proceedings, was inoperasuccessfully have interposed the statute, be- tive to convey a good title, nevertheless, the cause of their absence from the state, which deed purporting to convey title and being concaused a suspension of the running of the sistent with good faith to claim title under statute; and that, therefore, the defendant it, the defendant Crossley's possession of Crossley could not invoke the aid of the the property and the equitable lien thereon statute. This argument has often been made acquired by her under the circumstances by before the courts, and has been answered the payment of the t:rxes by her, gave her adversely to appellant's contention. In speak- such an interest in and to the real estate ing of the question, in a case where a judg- sought to be foreclosed by plaintiff as to enment lienor was invoking the aid of the title her to invoke the aid of the statute. statute against a prior mortgage, the Supreme 3. This brings us to the question as to Court of California saiil: “But it is the set- whether the action was barred by the statute. tled doctrine of this court, as will be seen It may be assumed that the action, on the from the authorities above cited, that when face of the note, is not barred. It may furthiril persons have subsequently acquired in- ther be assumedl, without deciding the point, terests in the mortgaged property they may that the provisions in the note and mortgage invoke the aid of the statute as against the giving the right to declare the principal sum mortgagee, even though the mortgagor, as be- due on default of interest or monthly paytween himself and the mortgagee, may have ments were only for the benefit of the cred. Waived this protection; and we see no Ciffer- itor. But the rule seems to be well settled ence in principle between a suspension of that the insolvency of a building and loan the running of the statute, resulting from association and the appointment of a receiver an express waiver, and one caused by his to wind up its affairs works a practical disvoluntary act in absenting himself from the solution of the association and terminates, state." Upon a review of the cases, the court to a certain extent, its contracts with its further observed: "The theory of all the member's. Under such circumstances, the cases above cited is, that while the general mortgage indebtedness of its borrowing memrule is that the plea of tlie statute of limita- bers becomes immediately due and collectible tions is a personal privilege the rule does by the receiver, regardless of the fact that it not extend to subsequent property rights over is, in terms, payable in installments extendwhich he has no control." Brandenstein v. ing over a definite period of time. The auJohnson, 140 Cal. 29, 73 Pac. 74.
thorities generally hold that, in such case, Also, in a case where a judgment lien- the borrowing member is to be charged with holder interposed the plea of the statute of the amount of money actually received by limitations against a prior mortgage, it was him, together with legal interest. They differ held by the Supreme Court of Washington only as to the amount or kind of credits that statute could be invoked by him. DeVoe which are to be allowed him, some holding v. Rundle, 33 Wash. 604, 74 Pac. 836. So, that he is entitled to credit for all money too, it has been helil that one, who, by either paid by him to the society, others holding private or judicial sale, has become the owner that he is entitled to all interest and partial of an interest in real estate belonging to one payments, but not to mere premium or stock or more heirs at law of the mortgagor, may payments. These principles are well illusplead the statute of limitations in bar of trated by the following authorities: Curtis an action to foreclose a mortgage on the real v. Granite State Prov. Ass'n, 69 Conn. 6, estate so acquired, although each and all of 36 Atl. 1023, 61 Am. St. Rep. 17; Johnston such heirs at law are parties to the action, V. Grosvenor, 105 Tenn. 353, 59 S. W. 1028; and neglected or refused to interpose the Weir v. Granite State Prov. Ass'n, 56 X J. plea. IIopkins v. Clydle, 71. Ohio St. 141, 72 Eq. 234, 38 Atl. 613; Strauss 1. Building X. E. 8-16, 104 Am. St. Rep. 737. The fol- Loan Ass'n, 117 N. C. 308, 23 S. E. 450, 30 lowing cases also support the doctrine that L. R. A. 693, 53 Am. St. Rep. 583; Strohen one who has acquired a lien or interest in V. Franklin Svgs. Fund & Loan Ass'n, 115 and to property sought to be foreclosed by Pa. 273, 8 Atl. 843; Windsor & Appelgrath
Application of Mary E. Edminston for writ of prohibition to E. C. Steele, judge. Writ denied.
John (). Bender, for plaintiff. Eugene A. Cox and Edward S. Fowler, for defendant.
v. Bandel, 10 MI. 172; Thompson, Bldg. & L. Ass'n, $ 319; Thornton and Blackledige on Bldg. & L. Ass'n, 16; Endlich on Bld. L. Ass'n, 518–531. The rule, so far as here applicable, is well stated in 5 Am, & Eng. Decisions in Equity, page 278, note 20, in the following language: "The insolvency of a building association, which is that condition of its affairs in which it is unable to pay back to its members the amounts paid in by them, respectively, dollar for dollar. puts an end at once to its operations, and as it thus prevents the stock from maturing and extinguishing the loans, according to the (ontracts between the association and its borrowing members, constitutes a breach of those contracts, and, on the on hand, excuses the borrowers from all further liability for the payment of dues and fines, and, on the other hand, renders the mortgages given to secure the loans due and enforceable at once, without regard to their terms, even though pilyable in installments, and the receiver man proceed to collect them." The question whether the mortgagors were entitled to credits for all money's paid to the society by them, or only for interest and partial payments, is not here involved.
involved. When the association was declared insolvent and a receiver arpointed to wind up its affairs, the mortgage became immediately due and collectible, and the receiver could then have maintained an action for a recovery. The cause of illotion accrued at that time, and the statute then began to run. The association was adjudged insolvent and a receiver appointed January S. 1898. The action was commenced April 29, 1904, a period of time longer than six years.
Our conclusion is that the action was barred, and the judgment of the court below is, therefore, affirmed, with costs.
AILSHITE, J. This is an application for a writ of prohibition. To the plaintiff's petition the defendant has demurred on the ground that the petition does not state facts sufficient to entitle her to the relief demanded. This application grows out of the following state of facts: The plaintiff, Mary E. Edminston, commenced an action in the justice court and obtained a judgment for the total sum of $86.40. The defendant in that action. Martha Smith, served and file her notice of appeal, and gave an undertaking in the following form: “Whereas the above-namel defendant. Martha Smith, desires to give an undertaking for the payment of costs on in appeal to the district court and for a stay of execution against the property of the said Martha Smith in the above entitled case: Now therefore, we, the undersigned sureties, do hereby obligate ourselves jointly and severally to the abova named plaintiff, Mary E. Edminston, under the said statutory obligations and all statutory obligations applicable to such undertaking ini appeal and for a stay of proceedings in the sum of one hundred eighty dollars ($180).” When the case came on in the district court, the plaintiff here, who was respondent there, made a motion to dismiss the appeal on the following grounds: "That no undertaking on appeal for the payment of costs has been executed, or filed by appellant, Martha Smith; and that the undertak: ing executed by her to stay proceedings is not in a sum equal to twice the amount of the judgment rendered in the justice court including costs; that this court has no jurisdiction of this case." After hearing the motion the court overruled the same, and thereupon the respondent, who is plaintiff bere, applied to this court for a writ prohibiting art restraining the district court from preceeiling to a trial of the cause.
It is contended by the plaintiff that the undertaking given on appeal from the justice court to the district court is so indefinite and uncertain that it is neither good as an appeal bond nor as a stay bond. It is conceded by both sides that the undertaking is not in a sufficient amount to stay the proceedings as required by section 4812, Rev. St. 1887. Wilson v. Doyle (Idaho) 3.5 Pac. 9:28. Counsel who appear for the defendant judge contend that the undertaking is in due form for an appeal bond, and is in a sufficient amount, and that, although it is not suflicient to stay proceedings, it is gooil as an appeal bond and that the court cor
rectly overruled the motion. It will be ¡ seen from an examination of this undertak
ing that it contains the language of the
MCCARTY, C. J., and FRICK, J., concur.
(12 Idaho, 613)
EDMINSTON V. STEELE Judge. (Supreme Court of Idaho. Nov. 11, 1906.) 1. JUSTICES OF THE PEACE-APPEAL-BONDSUFFICIENCY.
On appeal from a justice's court to the district where the appellant gives "an undertaking for the payment of costs on the appeal to the district court and for a stay of execution," and the sureties are bound in a sum exceeding $ 100, though not in an amount sufficient to stay the proceedings, and the undert:king contains all the obligations legiuired in appeal bonds, such undertaking will be held sufficient to perfect the appeal, and in such case a motion to dismiss the appeal was properly overruled by the district court. 2. SAME-VALIDITY.
Where there is no uncertainty as to the conditions and obligations of an undertaking on appeal, the bond will be held effectual for the purposes of the appeal, although coupled with an invalid or insufficient stay bond.
(Syllabus by the Court.)
statute required in undertakings on appeal imous approval of that court. As late as from a justice court, namely, that it is “for the case of Douglas v. Badger State Mine the payment of costs on appeal.” On the (Wash.) 83 Pac. 178, Mr. Justice Fullerton other hand, the obligation in the latter repudiated the doctrine that had been preclause is in conformity with the act provid- viously followed and approved by a majoring a form for undertakings, approved Feb- ity of that court, and said: “In my judgruary 14, 1899 (Sess. Law's 1899, p. 235), ment a bond sufficient in condition and and binds the sureties in accordance there- amount as an appeal bond is good as an with, namely, “the sureties bind themselves
appeal bond regardless of any condition under the said statutory obligations and looking to the stay of the judgment it may all statutory obligations applicable to such contain." The view we have taken in this undertaking on appeal." The undertaking
case seems to have been entertained in Caliseems to contain all the obligations and re- fornia under the statutes from which ours quirements necessary for an undertaking
were taken and prior to their adoption in on appeal, and the fact that it was also this state. M. H. C. & M. Co. v. Woodbury, attempted to include therein a bond for
10 Cal. 186; Dobbins v. Dollarhide, 15 Cal. stay of proceedings, and that the amount 37:4; Zoller v. McDonald, 23 Cal. 136; Ward of the obligation was not sufficient for that
v. Superior Court, 58 Cal. 519. There was purpose, does not invalidate or vitiate the
no error in the trial court overruling respondfirst obligation to pay costs of the appeal. ent's motion to dismiss the appeal and setThere can be no doubt, we think, but that ting the case for trial. the bondsinen can be held on this under
Defendant's demurrer to the petition heretaking for the costs of the appeal to the in will be sustained, and the case is dismissextent of $100 under the statutory obliga- ed, with costs in favor of defendant. tions. Such being the case, it would have been error for the district court to have dis
STOCKSLAGER, C. J., and SULLIVAN, missed the appeal. As to the extent, if any,
J., concur. of the obligation entered into by the sureties for stay of proceedings, that is not a matter involved in this case, and we have no oc
(74 Kan. 557) casion to consider it here. It must be as
Appeal of RICHARDSON. sumed that this undertaking was given for (Supreme Court of Kansas. Nov. 10, 1906.) al purpose. The first purpose to be served BOUNDARIES-LOCATING CITY PLATS-RULES. by an undertaking in such case is to perfect The primary rules for locating city plats the appeal, because, if there is no appeal,
upon the ground are, in order of precedence in
application, as follows: First. Find the lines there can be no stay of proceedings—there
actually run and the corners and monuments will be nothing to stay. The bond, whatever actually established by the original survey. its conditions or the amount of the obligation Second. Run lines from known, established, or
acknowledged corners and monuments of the as to stay of proceedings, could serve no pur
original survey. Third. Run lines according purpose if there is no valid appeal. The pri
to courses and distances marked on the plat. mary object of the party appealing from the [Ed. Note.-For cases in point, see Cent. Dig. justice court in giving an undertaking must vol. 8, Boundaries, $ 3.] have been to comply with section 4812, Rev. (Syllabus by the Court.) St. 1887, and make the appeal "effectual."
Error from District Court, Wilson County ; Counsel for plaintiff have placed some re
L. Stillwell, Judge. liance upon the decisions of this court in
In the matter of the appeal of R. N. RichWilson v. Doyle, supra, and Numbers v.
ardson from the George Sipe Survey. ReRocky Mt. Bell Tel. Company, 7 Idaho, 408,
versed and remanded. 63 Pac. 381. Those cases each turned upon
P. C. Young, for appellant. Kennedy & different facts from those involved here, and
Kennedy, for appellee Cedar Oil & Gas Co. neither one of them is decisive of this question. Counsel also cites Duffy v. Greene
BURCII, J. baum (Cal.) 12 Pac. 74, Galloway v. Tjossem
The city of Altoona was sur
veyed and platted in the year 1870. Original (Wash.) 60 Pac. 129, Beezley v. Sessions
corners were marked by walnut pins driven (Wash.) 60 Pac. 130, and Sumner v. Rogers
in the ground. The city hall and other im(Wash.) 58 Pac. 214, in support of plain
provements upon the townsite were aftertiff's contention. Duffy V. Greenebaum is
ward located in conformity with the ground not in point for the reason that the under
marks of the original survey, and other taking there considered by the court was held original corners are definitely known and not to contain the necessary obligations re
After 1870 a public highway quired in an appeal bond, and only amount
known as the “Reed Road” was laid out ed to a stay bond. The other cases cited
along the north side of the townsite. Block by plaintiff are from the state of Washing- 3 is in the north tier of blocks. A survey ton, and appear to support his position. We
was made to establish the line between lots are not, however, inclined to follow those
2 and 3 in this block, which upon appeal was authorities. They do not seem to us well set aside and an order for a new survey was founded and have never met with the unan- made in the following terms: “It is ordered,