Binder v. Blair

• Decision Date: 30 December 1929
• Docket Number: 5255
• Citation: 48 Idaho 580,283 P. 613
• Parties: ALBERT BINDER, Respondent, v. CHRISTIAN BLAIR and SOPHUS BLAIR, Appellants
• Court: Idaho Supreme Court

283 P. 613

48 Idaho 580

ALBERT BINDER, Respondent, v. CHRISTIAN BLAIR and SOPHUS BLAIR, Appellants

No. 5255

Supreme Court of Idaho

December 30, 1929

HUSBAND AND WIFE - CONTRACT OF SALE OF COMMUNITY PROPERTY-SUPPLEMENTAL CONTRACT FOR EXTENSION OF TIME FOR PAYMENT-CONSIDERATION-INSTRUCTED VERDICT-WHEN NOT DISTURBED ON APPEAL-CHATTEL MORTGAGES-FORECLOSURE OF.

1. Supplemental contract, extending time of payment fixed by earlier contract for sale of realty by husband and wife, did not involve sale, incumbrance or transfer of community realty, and hence did not require acknowledgment by wife under C. S., sec. 4666.

2. Where both sides asked for instructed verdicts, instruction of verdict for plaintiff will not be disturbed on appeal, if supported by competent evidence.

3. Evidence that mortgagee and sheriff went to mortgagors' home and served on them a notice, signed by mortgagee demanding possession of mortgaged chattels, held to justify instructed verdict for mortgagee, in action for deficiency on foreclosure sale, as against contention that no opportunity was given mortgagors to surrender mortgaged property before service of affidavit and notice of sale by sheriff.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. Wm. A. Babcock, Judge.

Action on a note. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

Bothwell & Chapman, for Appellants.

Where both parties respectively move for an instructed verdict and do no more, they thereby assume the facts to be undisputed, and, in effect, submit to the trial court the determination of the inferences to be drawn from them. (Oregon Short Line R. R. Co. v. Mountain States Tel. Co., 41 Idaho 4, 237 P. 281.)

In proceedings to foreclose a chattel mortgage summarily by notice and sale it is incumbent upon the mortgagee to first make a demand upon the mortgagor for peaceable possession, if the mortgagor is to be found within the county where the mortgage is being foreclosed, prior to and before placing the affidavit and notice, requiring the officer to take the mortgaged property into his possession and sell the same in the hands of the sheriff of the county or constable of the precinct where the property is located. (C. S., sec. 6379, 6380; Tappin v. McCabe, 27 Idaho 402, 149 P. 460; Gandiago v. Finch, 46 Idaho 657, 270 P. 621 at 624; Hudson v. Carlson, 31 Idaho 196, 170 P. 100.)

A mortgagee who has not followed the statutory methods provided for the foreclosure of chattel mortgages is precluded from maintaining an action to recover a deficiency in a suit on the note secured by the chattel mortgage. (Rein v. Callaway, 7 Idaho 634, 65 P. 63; First Nat. Bank of Pocatello v. Poling, 42 Idaho 636, 248 P. 19; Berg v. Carey, 40 Idaho 278, 281, 232 P. 904; Portland Cattle Loan Co., v. Biehl, 42 Idaho 39, 45, 245 P. 88.)

A contract to convey community property which is not acknowledged by the wife is absolutely void. (McKinney v. Merritt, 35 Idaho 600, 208 P. 244; Elliott v. Craig, 45 Idaho 15, 260 P. 433; Hart v. Turner, 39 Idaho 50, 55, 226 P. 282; Fargo v. Bennett, 35 Idaho 359, 206 P. 692; Weiser Loan & Trust Co. v. Comerford, 41 Idaho 172, 238 P. 515; Hughes v. Latour Creek R. Co., 30 Idaho 475, 166 P. 219; C. S., sec. 4666.)

S. T. Lowe, for Respondent.

Upon the failure of the mortgagors to turn over and deliver possession of the personal property described in said affidavit and mortgage to the mortgagee, under and by virtue of said affidavit, the sheriff was authorized to take the mortgaged property and sell the same. (C. S., sec. 6380; Hudson v. Carlson, 31 Idaho 196, 170 P. 100; First Nat. Bank of Pocatello v. Poling, 42 Idaho 636, 248 P. 19.)

The contract was a valid contract, because:

(a) It was signed by all of the parties to the former contract for the sale of real estate.

(b) It was not a contract for the sale of real estate and there is no statutory provision requiring the same to be recorded.

(c) If the contract were a contract for the sale of real estate, which it was not, it would not be within the letter of C. S., sec. 4666. (Childs v. Reed, 34 Idaho 450, 202 P. 685.)

GIVENS, J. Budge, C. J., and T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

GIVENS, J.

This is an action on a note to recover a deficiency resulting from the foreclosure of a chattel mortgage which secured said note. The note and mortgage were given under the following circumstances:

Plaintiff and his wife agreed by a duly executed and acknowledged contract to sell on instalment payments certain real estate to defendants. Default was made in the payment of the purchase price but the purchasers remained in possession. Later the parties entered into a supplemental contract, recognizing a forefeiture by reason of the defendants' default, but among other provisions extending the time of payment and providing that contemporaneously with the execution of the second agreement defendants would execute a note for $ 2,000 secured by the chattel mortgage involved herein. It was also provided that if the balance of the agreed purchase price was not paid by January 1, 1924, defendants' possession of the premises would be considered unlawful, and possession surrendered, etc.

This supplemental contract was signed but not acknowledged by the parties.

Defendants defaulted in their payments and the note secured by the chattel mortgage being past due and unpaid, demand was made by the...