Brady v. Linehan

• Decision Date: 10 January 1898
• Citation: 51 P. 761,5 Idaho 732
• Parties: BRADY v. LINEHAN
• Court: Idaho Supreme Court

51 P. 761

5 Idaho 732

BRADY v. LINEHAN

Supreme Court of Idaho

January 10, 1898

PRACTICE ON APPEAL-EVIDENCE, WHEN REVIEWED.-On appeal from a judgment the evidence will not be reviewed or exceptions to findings on the ground that they are not supported by the evidence be considered, unless the appeal is taken within sixty days after the rendition of the judgment.

JOINDER OF ACTIONS.-A complaint in a suit brought to obtain a deed to property, sold under execution, from the sheriff, and to determine the plaintiff's right to such deed as against the sheriff and an adverse claimant, states one cause of action.

MISJOINDER OF PARTIES.-A sheriff who has sold property under execution sale and refused to make deed therefor to the purchaser, the execution defendant whose title was sold, and a third party who claims adversely to the plaintiff, may be joined as defendants in an action by the purchaser to obtain a sheriff's deed to the property purchased by him at such execution sale.

SAME-MULTIPLICITY OF SUITS NOT ALLOWED.-It is the policy of the code, as well as of equity practice proper, to prevent multiplicity of suits about the same subject matter, and to settle complicated controversies in one action, when practical, and to attain such objects any person who has or claims an interest in the subject matter of an action adverse to the plaintiff may be joined as defendant with other persons who are proper parties defendant to the action.

FRAUDULENT TRANSFERS.-The claims of title asserted by one who knowingly enters into an arrangement for the purpose of defrauding a mortgagee of his vendor cannot avail as against the claim of such mortgagee.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

Affirmed, with costs.

W. C Howie, for Appellants.

The court erred in overruling the demurrer. There was a misjoinder of parties and a misjoinder of causes of action there were joined a suit to declare conveyances void, a suit in ejectment, a suit to quiet title, and a suit in mandamus, and a suit to compel a conveyance; nor did the suits affect all the parties alike, nor in fact did some of the suits affect some of the parties at all. The suits in ejectment, to quiet title, and to set aside conveyances in no way affected and could not be maintained against defendant, Oliver, and the suit in mandamus did not affect and could not be maintained against the other defendants. (Tompkins v. Sprout, 55 Cal. 31; 1 Ency. of Pl. & Pr. 209; 7 Lawson's Rights, Remedies and Practice, sec. 3470; 11 Am. & Eng. Ency. of Law, 1004, 1015; Gardner v. Ogden, 22 N.Y. 325, see 341, 342; Idaho Rev. Stats., sec. 4169.) Nora Linehan, when she mortgaged the Elmore hotel to Brady, did not mortgage the note from Thompson, and the mortgage securing the same for a conveyance of property does not convey a mortgage on the property nor the debt secured thereby, the mortgage conveying no title to the property mortgaged, but merely creating a lien on the property for the benefit of the debt of which it is merely an incident. (Peters v. Jamestown Bridge Co., 5 Cal. 335, 63 Am. Dec. 134; McMillan v. Richards, 9 Cal. 365 (see 408-413), 70 Am. Dec. 655, and note; Johnson v. Sherman, 15 Cal. 287 (see 293 et seq.), 76 Am. Dec. 481; Dutton v. Warschauer, 21 Cal. 609 (see 621 et seq.), 82 Am. Dec. 765; Nagle v. Macy, 9 Cal. 426 (see 428-429); Bennett v. Solomon, 6 Cal. 135 (see 138, 139); Phelan v. Ohrey, 6 Cal. 478 (see 473); Grattin v. Wiggins, 23 Cal. 16 (see 26); Willis v. Garris, 24 Cal. 491 (see 498); Bludworth v. Lake, 33 Cal. 255 (see 264); Jackson v. Lodge, 36 Cal. 29 (see 39); Mack v. Wetzlar, 39 Cal. 247 (see 253 et seq.) The Idaho statutes are the same as the California statutes. (Idaho Stats. 1887, sec. 4523; Idaho Stats., sec. 3355.)

E. M. Wolfe, for Respondent.

In support of respondent's motion to take from consideration of this court all that part of the transcript purporting to be evidence taken at the trial, we contend: 1. That the appeal was not taken within sixty days after the rendition of judgment; 2. The transcript, or bill of exceptions, does not purport to contain all the evidence taken at the trial. Appeal must be taken within sixty days after rendition of judgment. (Brooks v. San Francisco etc. Ry., 110 Cal. 173, 42 P. 570; Fatjo v. Swasey, 111 Cal. 628, 44 P. 225; Painter v. Painter, 113 Cal. 371, 45 P. 689.) Counsel for appellant contends that, the demurrer should have been sustained for the reason that there is a misjoinder of parties and causes of action. We maintain that there is but one cause of action, the fraudulent disposition of the property by the Linehans. This is an action to recover specific real property. All of the reasons set forth as defenses are based on the one fraudulent transfer. A suit to cancel a conveyance, in ejectment, and to quiet title, in this action means simply to set aside those fraudulent transfers and to give us possession. All of which the code recommends. (Idaho Rev. Stats., sec. 4103.) In this suit we have but one cause, and we are governed by section 4102 of the Revised Statutes. As to who should be made defendants said section reads: "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein," etc. (Taylor v. School Tp., 79 Ind. 208; Polack v. Gurnee, 66 Cal. 266, 5 P. 229, 610; Pfister v. Dascey, 65 Cal. 403, 4 P. 393; Wilson v. Castro, 31 Cal. 421, 427; Gafford v. Dickinson, 37 Kan. 287, 15 P. 175; Pomeroy's Remedies and Remedial Rights, secs. 372-379, 384; Pomeroy's Equity Jurisprudence, sec. 114; England v. Gardner, 86 N.C. 366.) Counsel contends that Nora Linehan, when she mortgaged the Elmore Hotel to Brady, did not mortgage the Byrne note and mortgage which had been assigned to her. In that strict sense we do not contend that she did. We contend that the note was paid and the mortgage discharged. We do maintain that if she, after mortgaging to Brady, secured any advantage or lien on the property because of that mortgage, it would inure to the benefit of Brady and be subject to his mortgage. (Persons v. Shaeffer, 65 Cal. 79, 3 P. 94; Madaris v. Edwards, 32 Kan. 284, 4 P. 313; Clark v. Baker, 14 Cal. 612, 634, 76 Am. Dec. 449.) When we prove that Mrs. Linehan transferred the judgment to defeat the Brady mortgage, and that Fields knew that Brady had a mortgage to be defeated, we have proven fraud such as will warrant our recovery. (Bump on Fraudulent Conveyances, 200, 202; Bigelow on Fraud, 289; Kansas Moline Plow Co. v. Sherman, 3 Okla. 204, 41 P. 623.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

The trial court made the following findings of fact, the cause having been tried before the court without a jury, to wit "1. That from the fifteenth day of December, 1886, to the thirtieth day of April, 1888, one A. D. Thompson was the owner in fee of the property in litigation in this case, and which is described as follows, to wit: 'Lot No. twelve (12) in block No. two (2) of the town of Mountain Home, in the county of Elmore, and state of Idaho as per plat of said town now on file in the office of the recorder of said Elmore county.' 2. That on the fifteenth day of December, 1886, said A. D. Thompson executed a mortgage on the same to one John E. Byrne to secure the payment of $ 2,000, which said mortgage was a first lien on said property at that time. 3. That thereafter, to wit, on the twenty-fourth day of August, 1887, said A. D. Thompson executed a second mortgage on the said premises to Ferdinand Westheimer & Sons to secure the payment of $ 350. Both of said mortgages were duly recorded. 4. That on the 1st day of June, 1887, one C. A. Morrill & Co. obtained a judgment against said A. D. Thompson, and the property aforementioned was levied on and sold under said judgment, and on the seventeenth day of July, 1887, S. B. Kingsbury secured a sheriff's deed to the same as attorney for said C. A. Morrill & Co., and on the eighth day of October, 1888, said S. B. Kingsbury deeded said property to said C. A. Morrill by quitclaim deed. 5. That on the twenty-first day of February, 1889, said C. A. Morrill deeded said property to Mrs. Nora Linehan, defendant herein, by a special warranty deed. 6. That on the thirtieth day of March, 1889, said John E. Byrne, assigned his said mortgage and debt secured thereby to said Nora Linehan. 7. That on the thirtieth day of March, 1889 said Nora Linehan purchased the equity of redemption in and to said property from said A. D. Thompson by quitclaim deed, and on the same day said Nora Linehan, in consideration of said deed from said A. D. Thompson, canceled and satisfied said mortgage which she had purchased from said John E. Byrne, and entered the satisfaction of the same on the note the payment of which said mortgage was given to secure, and also entered the satisfaction of the note and mortgage on the assignment of the mortgage to her. 8. That on the fifteenth day of December, 1890, said Nora Linehan and Patrick Linehan, her husband, executed and delivered to J. H. Brady, plaintiff herein, a promissory note and mortgage on the property aforementioned to secure the payment of $ 1,300 and interest, borrowed money, which mortgage was duly recorded in book 32 of Mortgages, at page 215, records of Elmore county. 9. That on the fifteenth day of February, 1894, said J. H. Brady brought his action in this court to foreclose his said mortgage, making Nora and Patrick Linehan defendants, and on the same day filed in the recorder's office of said Elmore county his notice of lis pendens, stating and claiming therein that his said mortgage was a first lien on said property; and on the...