Bruce v. Frame

• Decision Date: 03 May 1924
• Citation: 225 P. 1024,39 Idaho 29
• Parties: SUSAN BRUCE, H. F. RAMSEYER and JACK LEMON, Appellants, v. H. S. FRAME, ELMER E. HAAG and DAVID LITVIN, Intervenor, Respondents
• Court: Idaho Supreme Court

225 P. 1024

39 Idaho 29

SUSAN BRUCE, H. F. RAMSEYER and JACK LEMON, Appellants, v. H. S. FRAME, ELMER E. HAAG and DAVID LITVIN, Intervenor, Respondents

Supreme Court of Idaho

May 3, 1924

FINDINGS - CONFLICT OF EVIDENCE - MORTGAGE - ACKNOWLEDGMENT-AFFIDAVIT-JURAT-PRESUMPTION OF VERITY-MORTGAGE OF PROPERTY EXEMPT IN PART.

1. Findings of fact made by the trial judge based on conflicting evidence will not be disturbed if the evidence in support of such findings, if uncontradicted, is sufficient to sustain them.

2. The uncorroborated testimony of the mortgagor is not sufficient to overcome the certificate of acknowledgment, regular on its face.

3. The presumption of verity arising from the jurat attached to an affidavit, regular on its face, is sufficient to sustain a finding that the affidavit was duly made.

4. The inclusion in a mortgage of property exempt from execution does not invalidate the mortgage as to the other property described therein, although the mortgage was not signed by the wife of the mortgagor.

5. Errors assigned in respect to the apportionment between parties, of the expenses of receivership, will not be reviewed where the record does not contain the receiver's report upon which the apportionment is based.

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

Action by creditors against their judgment debtor and against claimant of property sought to be reached. Judgment for defendant claimant. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent.

Turner K. Hackman, for Appellants.

"No personal property of either husband or wife that is exempt by law from execution shall be mortgaged by either husband or wife, without the joint concurrence of both." (C. S sec. 7374.)

"The law requiring that the wife should join in the execution of a mortgage creating a lien upon exempt property, she must do so, else no lien is created." (Kindall v. Lincoln Hardware etc. Co., 8 Idaho 664, 1 Ann. Cas. 310, 70 P 1056.)

H. C. Hazel, for Respondent Haag.

As to the testimony of the mortgagor Frame, to the effect that he did not acknowledge the mortgage, the instrument itself is presumed to state the facts. (La Societe Francaise etc. v. Beard, 54 Cal. 480; Baldwin v. Bornheimer, 48 Cal. 433.)

The burden of impeaching a certificate rests upon the parties claiming that it is false, fraudulent or not in accordance with the truth. (Langenbeck v. Louis, 140 Cal. 406, 73 P. 1086; People v. Cogswell, 113 Cal. 129, 45 P. 270, 35 L. R. A. 269.)

BRINCK, District Judge. McCarthy, C. J., and Budge and Wm. E. Lee, JJ., concur.

OPINION

BRINCK, District Judge.

--This is an action in the nature of a creditors' bill brought by appellants against their judgment debtor Frame, and against the respondent Haag, who claims to be the owner as to part and mortgagee as to part of the assets sought to be reached.

In their amended complaint, after setting up their respective judgments, appellants alleged that executions issued thereon were returned unsatisfied after being levied upon 48 bucks and 425 ewes branded "E," owned in fact by Frame, but which Haag, by affidavit filed with the sheriff levying the executions, claimed to own; that the respondent Frame is the owner of 1,400 other ewes upon which Haag claims to hold a mortgage of either twelve or eighteen thousand dollars, which mortgage it is claimed is invalid as to plaintiffs, because, as is alleged, the mortgagor never appeared before a notary public and acknowledged its execution, nor swore to the affidavit of good faith attached thereto, and because of uncertainty in the description of the property; and that therefore the mortgage is a hindrance and delay to the creditors of Frame. It is further alleged in the complaint that there should be credited upon the notes secured by the mortgage certain sums which have not been credited; also that the notes secured by the mortgage were assigned to the Livestock Exchange National Bank of Chicago, and are now held by said bank and claimed as its property; that Frame has no other property than said sheep.

The complaint prays that the bucks and "E" ewes be decreed to be the property of Frame, subject to plaintiffs' judgments, and that they be sold to satisfy same; that the said mortgage be adjudged invalid as to plaintiffs; and that if the proceeds of the bucks and "E" ewes be insufficient, the ewes covered by the mortgage be sold to satisfy plaintiffs' judgments.

Respondent Haag in his answer denies the validity of plaintiffs' judgments; asserts his own ownership of the bucks and "E" ewes, denies that the notes secured by the mortgage are entitled to more credits than he has allowed, and denies the allegations as to the invalidity of the mortgage. He does not deny the alleged transfer to the Chicago bank of the notes secured by the mortgage.

Defendant Frame had answered the original complaint admitting its allegations, and by cross-complaint alleges that the sheep described in the mortgage are in the possession of the sheriff under foreclosure proceedings by notice and sale, instituted by Haag, alleges the invalidity of the foreclosure proceedings on various grounds, alleges that he never acknowledged the execution of the mortgage or made the affidavit attached thereto, and that the mortgage was altered after signing by including therein certain exempt and other property not described in it when he executed it; also that he is entitled to certain credits on the notes secured by the mortgage, and also that Haag is not the owner of the notes. By agreement at the trial, the allegations of this cross-complaint were deemed denied by Haag.

By stipulation, a portion of the bucks were sold and the proceeds, $ 525, were deposited with the sheriff, to be held in the place and stead of the bucks until the final settlement of the suit; this money was later deposited with the clerk.

Upon the issues framed as above, trial was had and the trial court found that the chattel mortgage was in all respects valid and had been properly recorded and that Haag was entitled to foreclose it; that Haag was the owner of the "E" ewes; that the bucks remaining unsold, and the proceeds of the bucks sold were the property of Frame, subject to certain charges; and decree was entered accordingly, from which the plaintiffs appeal, the defendant Frame not appealing.

In the errors assigned, appellants attack the findings that the defendant Frame made, executed and delivered his chattel mortgage on the property secured therein and that it was properly acknowledged, verified and filed with the recorder and the conclusion that the mortgage is in all respects valid and legal, upon the grounds, as contended, that the evidence shows that the mortgage was altered after it was signed by including additional property, and that Frame did not acknowledge or make affidavit to the mortgage. On these points the evidence is conflicting. That there was no alteration finds...