Brinton v. Johnson

• Decision Date: 27 October 1925
• Citation: 240 P. 859,41 Idaho 583
• Parties: CALEB BRINTON, Appellant, v. AUGUSTE JOHNSON, J. A. JOHNSON, Her Husband, O. C. CARSSOW, A. E. CARSSOW, MARY E. CARSSOW, His Wife, and PAUL W. JOHNSON and LAURA B. JOHNSON, His Wife, Respondents
• Court: Idaho Supreme Court

240 P. 859

41 Idaho 583

CALEB BRINTON, Appellant, v. AUGUSTE JOHNSON, J. A. JOHNSON, Her Husband, O. C. CARSSOW, A. E. CARSSOW, MARY E. CARSSOW, His Wife, and PAUL W. JOHNSON and LAURA B. JOHNSON, His Wife, Respondents

Supreme Court of Idaho

October 27, 1925

APPEAL AND ERROR - SECOND APPEAL-LAW OF THE CASE-TRIAL BY COURT - EVIDENCE - EFFECT OF ADMISSION OF INCOMPETENT TESTIMONY - DEEDS - REFORMATION OF - MISTAKE OF LAW NOT GROUNDS FOR REFORMATION - CONTRACTS - PREMATURE FORECLOSURE-TENDER-EFFECT OF WAIVER OF TENDER-RECOVERY.

1. A decision by the appellate court upon a point distinctly made and essential to its determination upon a previous appeal is in all subsequent proceedings in the same case a final adjudication.

2. Where a cause is tried by the court without the intervention of a jury and incompetent evidence is conditionally received this court will presume that the trial court did not consider such evidence in making up its findings unless the contrary is made to appear.

3. Where the parties to a deed and mortgage used the precise language they intended to use and this language is held to create a liability against one of them, a court of equity will not reform the same by permitting a new agreement to be substituted instead of the one made, because of a mistake of law with regard to the true meaning of the contract made.

4. Where a contract is entered into in the form intended and is not ambiguous or uncertain in its terms, neither party will be permitted to have the same changed because such party did not understand it to mean, when made, what it in fact does mean.

5. Where a mortgagee attempts to accelerate the due date of a note and mortgage and immediately commences an action of foreclosure of the same and it appears that the debtor has prior to its maturity offered to pay all that was due thereon at maturity, and before judgment tenders to the mortgagee such amount, and upon his refusal to receive the same pays the money into court, recovery will be limited to the principal sum due and will not be allowed for interest, costs or attorney's fees claimed to have accrued after such offer was made and rejected.

6. Where a purchase-money mortgage provides for semiannual payment of interest, and that the mortgagee at his option may consider the entire amount due upon a failure to pay any instalment of interest, the grantor and mortgagee having covenanted that the premises are free from encumbrances, he must, where a tax lien on the premises exceeds the amount of the instalment of interest due, which lien is paid by the mortgagor, credit the amount of the encumbrance upon the purchase price, and will not be permitted to take advantage of his own failure to remove the encumbrances so as to accelerate the maturity of the mortgage and add the additional burden of costs and attorney's fees upon the mortgagor.

7. Where a debtor offers to pay the amount of principal and interest that will be due at the maturity of a mortgage and the mortgagee, who had prematurely commenced an action for its foreclosure, refuses to accept the offer and waives an actual tender, such waiver obviates the necessity of a tender at maturity.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action to reform deed and foreclose mortgage. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

Benjamin F. Tweedy, for Appellant.

Our statute does not require deposit in court or plea in bar, but absolutely forbids any plea in bar on a deposit with the clerk on order of court and forbids introducing the tender whatever may be its language or form, in evidence. A tender under this character of statute is only an offer to compromise the litigation. (C. S., sec. 7192; Young v Stickney, 46 Ore. 101, 79 P. 345.)

The attorney for appellant waived an insufficient tender, and left rights of parties to be settled by the pending litigation, as provided in C. S., sec. 7192. A conditional tender is never good, either before or after suit. ( Elderkin v. Fellows, 60 Wis. 339, 19 N.W. 101; McCoy v. Buckley, 11 Cal.App. 241, 104 P. 705; McDaniel v. Upton, 45 Ill.App. 151; Barnes v Greene, 30 Iowa 114; Emerson v. White, 76 Mass. (10 Gray) 351; Burt v. Dodge, 13 Ohio 131; McDowell v. Glass, 4 Watts (Pa.), 389; Smith v. Anders, 21 Ala. 782; Hinchy v. Foster, 3 McCord (S. C.), 428; O'Meara v. Cardiff Coal Co., 154 Ill.App. 321; Kelsay v. Taylor, 56 Ore. 13, 107 P. 609; Lasoya Oil Co. v. Zulkey, 40 Okla. 690, 140 P. 160; Smith v. School District, 89 Kan. 225, Ann. Cas. 1914D, 139, 131 P. 557; Union Esperanza Min. Co. v. Shandon Min. Co., 18 N.M. 153, 135 P. 78; Purdin v. Hancock, 67 Ore. 164, 135 P. 515; Wilson v. Doran, 110 N.Y. 101, 17 N.E. 688; Snyder v. Quarton, 47 Mich. 211, 10 N.W. 204; Thompkins v. Batie, 11 Neb. 147, 38 Am. Rep. 361, 7 N.W. 747; Bagnell Timber Co. v. Brooks, 72 Ark. 210, 79 S.W. 764; Rogers Grain Co. v. Jansen, 117 Ill.App. 137; Samuels v. Simmons, 22 Ky. Law, 1586, 60 S.W. 937; Rouyer v. Miller, 16 Ind.App. 519, 44 N.E. 51, 45 N.E. 674.)

"If a tender is made after suit has been commenced the debtor must include interest and costs in the amount tendered, and also a reasonable attorney's fee if such is allowed by law, or is provided for in the contract." (12 Ency. of Evidence, 490.)

An answer of a defendant that attempts to put a sufficient tender in writing, wherein the "precise" amount of the tender "in dollars and cents" is not stated, fails to plead a sufficient tender. (Harrison v. Beale, 111 Ore. 563, 222 P. 728; Proebstel v. Trout, 60 Ore. 145, 118 P. 551.)

Since Dr. Carssow had the use of his money, it was serious error for the court to refuse recovery of interest from maturity of the mortgage; nor can Dr. Carssow discharge the lien of the mortgage otherwise than by actual payment, since he is only a purchaser of the equity of redemption. (Nelson v. Loder, 132 N.Y. 288, 30 N.E. 369; Brunswick Realty Co. v. University Inv. Co., 43 Utah 75, 134 P. 608; Tuthill v. Morris, 81 N.Y. 94, Thayer v. Meeker, 86 Ill. 470; Aulger v. Clay, 109 Ill. 487.)

He not only had the use and benefit of all his money but he had the use and possession of the real estate that is the consideration of the mortgage, and, for that reason, must pay the interest on the mortgage from its maturity to date of judgment. (Rankin v. Rankin, 216 Ill. 132, 74 N.E. 763.)

The deposit and the informal plea in bar cannot cut off the right to recover the interest and attorney fees on the terms and conditions of the mortgage; the statutes give the appellant all costs when he recovers an affirmative judgment against the defendants, or respondents, and also attorney fees on the contract. (Rinker v. Lauer, 13 Idaho 163, 88 P. 1057; C. S., secs. 7207, 7209; 11 Cyc. 28; Brunzell v. Stevenson, 30 Idaho 202, 164 P. 89; Printz v. Brown, 31 Idaho 443, 174 P. 1012; Rhodenbaugh v. Stingel, 31 Idaho 594, 174 P. 604; McArthur v. John McArthur Co., 39 Cal.App. 704, 179 P. 700; Nowogroski v. Southworth, 100 Wash. 336, 170 P. 1011; Northern California Power Co. v. Waller, 174 Cal. 377, 163 P. 214; Empire State Surety Co. v. Moran Bros. Co., 71 Wash. 171, 127 P. 1104; Nation v. Littler, 59 Kan. 773, 52 P. 96; Rand v. Wiley, 70 Iowa 110, 29 N.W. 814; Phipps v. Taylor, 15 Ore. 484, 16 P. 171.)

The mortgage, before final judgment, became due without acceleration, and therefore the appellant now has absolute right to a judgment against the respondents for the principal of the mortgage, all interest up to date, and attorney fees. (Chinn v. Penn, 179 Cal. 153, 175 P. 687; C. S., sec. 6951.)

Pleas in abatement (and plea of premature suit is in abatement) are waived by pleas in bar or to the merits. (31 Cyc. 150, 156, 170, 185; Duncan Lumber Co. v. Willapa Lumber Co., 93 Ore. 386, 182 P. 172, 183 P. 476; Devlin v. Moore, 64 Ore. 433, 130 P. 35; La Grande v. Portland etc. Co., 58 Ore. 126, 113 P. 25; Hooker v. Green, 50 Wis. 271, 6 N.W. 816; Wells v. Patton, 50 Kan. 732, 33 P. 15.)

Cox & Martin, for Respondents.

Appellant cannot while in default on his own covenant accelerate the maturity of the purchase-price mortgage indebtedness and penalize the respondents in attorney's fees and costs. ( Brinton v. Johnson, 35 Idaho 656, 208 P. 1028; Warren v. Stoddart, 6 Idaho 692, 59 P. 540; C. S., secs. 5384, 5385; Polak v. Mattson, 22 Idaho 727, 128 P. 89; Bullitt v. Coryell, 38 Tex. Civ. App. 42, 85 S.W. 482; Schuchmann v. Knoebel, 27 Ill. 175; Stiger v. Bacon, 29 N.J. Eq. 442; Stephens v. Weldon, 151 Pa. 520, 25 A. 28; Broderick v. Smith, 26 Barb. (N. Y.) 539, 157 How. Pr. 434; Ingram v. Golden Tunnel Min. Co., 25 Wash. 318, 65 P. 549; Fairchild-Gilmore-Wilton Co. v. Southern Refining Co., 158 Cal. 264, 110 P. 951.)

Equity will not permit an acceleration of the maturity of a purchase-price mortgage where there exists a good faith controversy over the removal of an encumbrance which attached while the vendor was the owner of the land. ( Schurger v. Moorman, 20 Idaho 97, Ann. Cas. 1912D, 1114, 117 P. 122, 36 L. R. A., N. S., 313; Brinton v. Johnson, supra; Carssow v. Brinton, 35 Idaho 667, 208 P. 1031; Warren v. Stoddart, supra.)

Prior to the maturity of the purchase-price mortgage an offer was made in writing to pay appellant all that was legally due him. This was not accepted, but was refused and tender was waived. This is equivalent to the actual production and tender of the money. (C. S., sec. 8049; Machold v. Farnan, 20 Idaho 80, 117 P. 408; McCalley v. Otey, 99 Ala. 584, 42 Am. St. 87, 12 So. 406; Boise Lumber Co. v. Independent School Dist., 36 Idaho 778, 214 P. 143.)

Tender of the indebtedness having been made prior to the maturity of the purchase-price mortgage, the same having been...