American Mutual Building And Loan Co. v. Kesler

• Decision Date: 22 May 1943
• Docket Number: 7078
• Citation: 64 Idaho 799,137 P.2d 960
• Parties: AMERICAN MUTUAL BUILDING AND LOAN COMPANY, a corporation, Appellant, v. F. CLARK KESLER and NETTIE W. KESLER, his wife, Respondents
• Court: Idaho Supreme Court

137 P.2d 960

64 Idaho 799

AMERICAN MUTUAL BUILDING AND LOAN COMPANY, a corporation, Appellant, v. F. CLARK KESLER and NETTIE W. KESLER, his wife, Respondents

No. 7078

Supreme Court of Idaho

May 22, 1943

Rehearing Denied June 15, 1943.

MORTGAGES-ACTION FOR DEFICIENCY-LIMITATION OF ACTIONS-APPEAL AND ERROR-TRANSCRIPT ON APPEAL-JUDGMENT ROLL-PRESUMPTIONS.

1. Where appeal is taken on judgment roll alone, Supreme Court must decide case upon assumption that evidence supports findings made by trial court. (I.C.A., sec. 7-1107.)

2. In action to recover deficiency judgment, where realty given as security is located in another state, statute providing that there can be but one action for recovery of any debt secured by mortgage has no application. (I.C.A., sec. 9-101.)

3. Where mortgagors residing in Idaho made no appearance in Utah foreclosure, and Utah court did not provide for application of funds received from foreclosure sale, Idaho court, in deficiency proceeding, could apply foreclosure receipts as equity dictated.

4. In Idaho deficiency judgment action after Utah foreclosure Idaho court could determine if any installments which matured prior to commencement of foreclosure were barred by Idaho statute of limitations, but could not defer maturity of installments already matured by election under acceleration clause of contract. (I.C.A., sec. 5-216.)

5. The application of receipts from foreclosure sale of mortgage securities does not toll statute of limitations. (I.C.A sec. 5-216.)

6. Where mortgagee availed itself of benefits of acceleration clause in mortgage, future installments were immediately matured for all purposes, and statute of limitations then began to run against unmatured installments and continued to run against past due installments. (I.C.A., sec. 5-216.)

7. Where mortgagee in Utah foreclosure elected to declare all installments due, in Idaho action for deficiency judgment such installments in relation to statute of limitations could not be considered as separate causes of action. (I.C.A., sec 5-216.)

8. Where mortgagors had removed from Utah to Idaho prior to commencement of Utah foreclosure and resided in Idaho more than five years immediately preceding commencement of deficiency judgment action, action was barred by statute of limitations. (I.C.A., sec. 5-216.)

9. Where it appeared on plaintiff's appeal from alleged inadequate judgment that plaintiff was not entitled to judgment for any sum, but there was no appeal by defendants defendants could not complain and judgment was affirmed.

Rehearing Denied June 15, 1943.

Appeal from the District Court of the Sixth Judicial District, for Bingham County. Hon. Guy Stevens, Judge.

Action to recover balance due on note after mortgage foreclosure proceedings. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondents.

E. H. Casterlin for appellant.

Conclusions of law are not binding on the Appellate Court. The judgment is the real conclusion of law and supersedes any conclusion embraced in the decision. (Jorgensen v. Sterling, 35 Idaho 785, 791.)

In foreclosure proceedings the court must ascertain the amount of the obligations secured in order to determine (1) if the security should be ordered sold; (2) how much of the security should be sold; (3) how the proceeds from the sale are to be applied; (4) the balance due if the proceeds are insufficient to satisfy the obligations. This is true although the court may not have jurisdiction to enter a personal judgment. (Blumberg v. Buch (Cal.), 34 P. 102; Bank of America, etc. v. Kelsey (Cal.), 44 P.2d 617; Neely v. Miller (Ariz.), 251 P. 445; Houdek v. Brick (Kan.), 257 P. 753; Randerson v. McKay (Okla.), 188 P. 323.)

L. H. Thomas and John W. Jones for respondents.

The action here could only be upon the obligation signed by the defendants, the note, for the unpaid part thereof, and must be determined thereby regardless of the terms of the mortgage upon Utah property, and the foreclosure decree thereof in Utah, had upon substituted service upon these defendants, and such decree did not give the plaintiff therein any better standing than that afforded it by the original obligation. The decree can be used for no purpose whatever in this action. (Canadian Brikbeck etc. Co. v. Williamson, 32 Idaho 624.)

AILSHIE, J. Holden, C.J., and Budge, Givens, and Dunlap, JJ., concur.

OPINION

AILSHIE, J.

September 4, 1928, Nettie W. Kesler and F. Clark Kesler, her husband, then residents of Utah, executed and delivered to the Mutual Savings and Loan Association their promissory note for $ 1500 and secured the same by a mortgage on Utah real estate belonging to Mrs. Kesler. Thereafter, and on April 14, 1937, the Mutual Savings and Loan Association sold and assigned the note and mortgage to appellant, a Utah corporation. The Keslers paid their regular monthly installments until June 1, 1932, which was the last payment they made, at that time leaving a balance of 81 unmatured installments. The Keslers also failed to pay taxes, assessments, insurance, and other incidental expenses, which were covered and secured by the mortgage. Respondents breached the terms and conditions of the mortgage by failing to pay further installments, taxes, assessments, insurance premiums, and incidental expenses. October 21, 1935, appellants brought action in the Utah court for foreclosure of the mortgage and, at the same time, elected to declare the entire indebtedness due, under the provisions of an acceleration clause contained in the mortgage. Decree of foreclosure was entered in the Utah court, on constructive service, December 9, 1935; and foreclosure sale was made January 6, 1936, from which purchase price of $ 1500 was realized.

Long prior to the institution of the foreclosure action, the Keslers moved to Idaho. The present action for a personal judgment against Keslers for balance due was instituted July 20, 1940, and resulted in a judgment in favor of the appellants against the respondents, for the sum of $ 180.58, principal, interest, and costs. This appeal is taken by the plaintiff upon the judgment roll alone (Sec. 7-1107, I.C.A.) and does not furnish us with any of the evidence introduced in the case. We must, therefore, decide the case upon the assumption, that the evidence supports the findings made by the trial court. (Needham v. Needham, 34 Idaho 193, 198, 200 P. 346; McCornick v. Brown, 22 Idaho 52, 60, 125 P. 197; Reid v. Keator, 55 Idaho 172, 176, 39 P.2d 926; Morton v. Fuller, 48 Idaho 203, 205, 281 P. 377.)

The findings of the trial court and conclusions, material for our consideration here, are as follows:

"6. That the makers of said note have paid on account thereof a total sum of $ 856.45, without directions or restrictions respecting the application thereof, which said total sum was applied as follows, to-wit: to principal $ 279.21, to interest $ 577.24. That the legal rate of interest in the State of Utah on the date of said note could not exceed 12% per annum or its equivalent of 1% per month.

"7. That the last payment on said note was made by the defendants on June 1, 1932, and that these payments were so made at such times and in such manner that after the application of the last payment there was a balance due on said note for principal in the sum of $ 1,220.79.

"8. That the defendants Kesler breached the terms and conditions of said mortgage by failing to pay general taxes, special assessments and insurance premiums, at the time and in the manner provided by said mortgage, and the same were paid by this plaintiff. That by the terms of said mortgage the repayment of those items to the plaintiff was secured by the said mortgage and the amount of said items became a lien on the mortgaged property and a part of the mortgage debt.

"9. That by reason of the default in the payment of said note according to its terms and conditions, and the breach of said mortgage, the plaintiff brought an action to foreclose the said mortgage, on October 21, 1935, in the District Court of Beaver County, Utah.

"10. That on October 21, 1935, the collection of none of the installments of said note was barred by the six year statute of the State of Utah.

"11. That long prior to October 21, 1935, the defendants Kesler who were named as parties defendant in the foreclosure action in Utah, had removed from the State of Utah to Bingham County, Idaho, where said defendants have since continuously maintained their residence.

"12. That the summons issued out of the court having jurisdiction of the foreclosure action was duly and regularly served on these defendants Kesler in Bingham County, Idaho, and that neither of the defendants Kesler appeared in the foreclosure action and their default was duly and regularly entered therein for failure to appear and plead, on December 4, 1935.

"13. That on December 9, 1935, a decree was duly and regularly entered in the foreclosure action by the terms of which the said mortgage was foreclosed and the property therein described was ordered sold to satisfy the various amounts found by the court to be due the plaintiff and secured by the said mortgage.

"14. That the various amounts found to be due and secured are Principal and interest, $ 1,733.52; Special Assessments, $ 36.28; General Taxes, $ 492.53; Insurance Premiums, $ 59.52; Abstract of Title, $ 8.25; Attorneys' Fees, $ 250.00; Costs and Disbursements, $ 21.00, all as of December 9th, 1935. That the total amount of the items recovered under the terms of the mortgage only is $ 867.58. That the grand total of all amounts secured by the mortgage is $ 2,601.10.

"15. That on January 6th, 1936, the mortgaged property was duly and regularly sold for the gross sum of $ 1,500.00. That after deducting the...