Bradley v. Johnson

• Decision Date: 18 January 1906
• Citation: 83 P. 927,11 Idaho 689
• Parties: BRADLEY v. JOHNSON
• Court: Idaho Supreme Court

83 P. 927

11 Idaho 689

BRADLEY v. JOHNSON

Supreme Court of Idaho

January 18, 1906

LACHES-WHAT CONSTITUTES-STATUTE OF LIMITATIONS WHEN BAR TO ACTION.

1. Where it is shown that J. executed his promissory note due one year after date to B., and secured the note by mortgage on unpatented mining property; before the note was due J notified B. that he was unable to pay the note, and soon thereafter left the state, the note and the mining deed having been placed in escrow on the day of their execution with the condition that if J. paid the note, it with the deed should be returned to him, otherwise the deed was to be surrendered to B., J. not demanding the deed or offering to pay the note until twelve years after B. had done the annual assessment work on the property, and with his codefendant a large amount of development work, held that he is bound by his laches, and a cross-complaint in an action to remove a cloud attempted to be cast upon the title of B. by J. should be dismissed.

2. Where B. has been in adverse, open and notorious possession of unpatented mining property claiming the right of possession under a deed purporting to convey the title to the property for more than five years, an action to recover such possession from B. is barred by the provisions of section 4036 of the Revised Statutes of Idaho.

3. Under the provisions of section 4036 of the Revised Statutes of Idaho, which provides that "No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seised or possessed of the property in question within five years before the commencement of the action; and this section includes possessory rights to lands and mining claims," open, notorious, adverse possession of an unpatented mining claim for a period of more than five years brings it under the provisions of the above section.

(Syllabus by the court.)

APPEAL from the District Court of Blaine County. Honorable Lyttleton Price, Judge.

Action to quiet title to mining property. Judgment for the plaintiff; from the judgment and an order overruling a motion for new trial, defendant appeals. Affirmed.

Judgment affirmed. Costs to respondents.

N. M Ruick and Sullivan & Sullivan, for Appellant, cite no authorities other than those discussed in the opinion of the court.

R. F. Buller, for Respondent, cites no authorities other than those discussed in the opinion.

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, C. J.

Respondents as plaintiffs commenced their action in the district court of Blaine county against appellant as defendant, to quiet the title to a certain unpatented mining claim in the Muldoon district known as the "Snowslide." Defendant answered denying title in plaintiffs, and in a cross-complaint alleged title in himself. Plaintiffs answered this cross-complaint putting in issue all the material allegations thereof.

Defendant demurred to the first paragraph of plaintiffs' answer to the cross-complaint, but the record does not disclose the ruling of the court, if any, on this demurrer. Contemporaneous with the filing of the demurrer, it is shown that counsel for appellant filed a motion termed "Motion to strike out." It is as follows: "Comes now the defendant by his counsel and moves the court to strike out of the plaintiffs' answer to defendants' cross-complaint on the matters and things set up in the first paragraph of said answer to defendants' cross-complaint, beginning with the words 'The plaintiffs,' in the first line thereof, and ending with the word 'thereon,' at the end of the first line of page 2 of said original answer to defendants' cross-complaint. Said motion is based upon the ground that the facts stated in said paragraph are not responsive to any issue tendered by the answer or cross-complaint of defendant. 2. That the facts stated in said answer to defendant's cross-complaint do not state a defense to the cause of action set up in defendant's cross-complaint. 3. That the allegations contained in the first paragraph of said answer to said cross-complaint are sham, irrelevant and frivolous." The language of the answer sought to be stricken out is as follows "Plaintiffs for answer to the cross-complaint of the defendant deny that on the tenth day of September, 1891, the defendant made and delivered to plaintiff, R. F. Buller, a deed to the property described in the complaint, and deny that the plaintiff, R. F. Buller, required and demanded such deed as additional security for the payment of the promissory note mentioned in the defendant's cross-complaint, and denies that the defendant Bradley had notice of the execution of the said deed as part of the security for the payment of said promissory note, and avers the fact to be that defendant deposited a deed in escrow with the First National Bank of Hailey to be delivered upon his failure to pay to said R. F. Buller the sum of $ 250, and interest thereon." This motion was overruled. Counsel for defendant excepted; a trial was had and the court made and filed findings of fact and conclusions of law. The first finding of fact relates to the execution and delivery of the note and mortgage on the tenth day of September, 1891, and the agreement entered into whereby a deed to the property in controversy was placed in escrow in the First National Bank of Hailey, conditioned that if defendant failed to pay the note at maturity, the deed was to be delivered to said Buller by said Bank in payment of said debt and the debt canceled. That defendant failed to pay said note, and said escrow deed was taken up by plaintiff Buller shortly after the expiration of the said year, and the said debt was thereby fully paid and discharged and the said mortgage extinguished. That in the fall of the year 1892 plaintiff took possession of the property claiming it as his own by virtue of said deed, and remained in undisturbed, open, notorious, adverse possession of the same until the year 1899, when he bargained and sold a one-third interest therein to his coplaintiff, Bradley, and he and the said Bradley have ever since been in exclusive, open and notorious adverse possession of said property, and were in such possession at the time of the commencement of this suit. The second finding is that on the sixteenth day of September, 1904, Buller conveyed to Bradley a one-third interest in said property, who was an innocent, bona fide purchaser without notice of any equity or supposed equity of defendant therein. The third finding is that said property was an unpatented mining claim upon which it was necessary to do $ 100 worth of work annually in order to protect the title; and said Buller has had such assessment work done every year since and including the year 1892 until the year 1898, and he and his coplaintiff have done said work and much more every year from the year 1899, until the year 1904, and have been at great expense improving and developing said property, the value of which greatly exceeds the value of all the ores extracted by them therefrom. The fourth finding is that during all the time from the fall of the year 1892 until the summer of 1904, the defendant abandoned said property and made no claim thereto, nor did any work thereon until a short time before the commencement of this suit, some time in the summer of the year 1904, when he began to assert a claim of title to the said property adverse to the title of plaintiffs and to threaten legal and other proceedings against plaintiffs in disparagement of their title to their great damage and injury. Finding No. 5 is that the defendant is estopped by his laches in not setting up nor asserting any title to the said premises for twelve years and acquiescing for this long period of time in the plaintiffs' claims and operations therein and thereon from now asserting his alleged or any equities that he may have had thereon. Finding No. 6 is that the plaintiffs have been in the actual, open, notorious and continuos adverse possession of the said premises for more than five years next before the commencement of this suit and after default in payment of the debt secured by the mortgage mentioned in defendants' cross-complaint.

The conclusions of law are that the defendant's claims are barred by his laches and by the statute of limitation. That defendant's cross-complaint should be dismissed. That plaintiffs are entitled to a decree quieting their title to the said premises as against the defendant, and perpetually enjoining him from setting up or asserting any claim to the said property.

Judgment was entered in harmony with the findings and conclusions. The appeal is from the judgment and from an order overruling motion for a new trial.

1. Counsel for appellant insists that the execution of the note mortgage and deed of September 10, 1901, constituted one transaction; that the deed was given as additional security for the loan, which fact constituted it a mortgage; 2. That as a mortgage the deed could not convey the legal title, but it was necessary that the same should be foreclosed before title could pass; 3. That plaintiffs are estopped from pleading the statute of limitation by reason of failure to foreclose, and that to permit plaintiffs to plead such statutes would be contrary to equity and would permit plaintiff Buller to take advantage of his own wrong; 4. The evidence fails to show that the possession of the premises by plaintiffs, or either of them, was adverse to defendant; 5. The plaintiff Bradley was put on notice of the nature of the transaction and cannot successfully claim as an innocent purchaser; 6. The defendant is entitled to an...