Caldwell v. Thiessen

• Decision Date: 11 July 1939
• Docket Number: 6652
• Citation: 60 Idaho 515,92 P.2d 1047
• Parties: SOL CALDWELL and FRED CALDWELL, Executors of the Estate of MARIA CALDWELL, Deceased, Appellants and Cross-respondents, v. HENRY THIESSEN, Respondent and Cross-appellant, and FRANZ WASSEM, Respondent
• Court: Idaho Supreme Court

92 P.2d 1047

60 Idaho 515

SOL CALDWELL and FRED CALDWELL, Executors of the Estate of MARIA CALDWELL, Deceased, Appellants and Cross-respondents, v. HENRY THIESSEN, Respondent and Cross-appellant, and FRANZ WASSEM, Respondent

No. 6652

Supreme Court of Idaho

July 11, 1939

MORTGAGES-FORECLOSURE SALE-RIGHTS OF PARTIES DURING PERIOD OF REDEMPTION-RENTS AND PROFITS-APPEAL-COSTS.

1. After mortgage foreclosure sale, the title to the land is in purchaser and he is entitled to receive compensation for its use.

2. If redemption from mortgage foreclosure sale is made, no new title is created, but the mortgagor's title is merely revived, and in that event he is given all that he is entitled to by statute providing that rents paid shall be applied on redemption. (I. C. A., sec. 8-407.)

3. If no redemption is made from mortgage foreclosure sale, the value of the use and occupation must follow the holder of the legal title, the purchaser. (I. C. A., sec. 8-407.)

4. A statute adopted from another state will be given the construction and meaning given it by the courts of that state prior to its adoption unless such construction is clearly unreasonable.

5. A "tenant" is one who holds or possesses real estate or sometimes personalty by any kind of right, whether in fee simple, in common, in severalty, for life, for years or at will, and also one who has the occupation or temporary possession of lands or tenements the title of which is in another.

6. The word "tenant" as used in statute requiring tenant in possession after mortgage foreclosure sale and during period of redemption to pay for use and occupation of land was used in its generic sense and a mortgagor holding over during the period of redemption is a "tenant in possession" within statute, and liable for value of use and occupation of the land. (I. C. A., sec. 8-407.)

7. Where, after foreclosure of chattel mortgage covering cattle mortgagor and chattel mortgagee entered into cattle feeding contract, evidence in action by purchasers at execution sale on foreclosure of real estate mortgage to recover rent for use and occupation of premises during redemption period was insufficient to sustain finding that contract had been terminated prior to redemption period and that chattel mortgagee had no interest in the cattle. (I. C. A., sec 8-407.)

8. In action by purchaser at execution sale on foreclosure of real estate mortgage to recover rent for use and occupation of premises during redemption period, evidence established that chattel mortgagee, who foreclosed chattel mortgage covering cattle, had an interest in some 15 head of bulls which were kept on land approximately two months during redemption period. (I. C. A., sec. 8-407.)

9. Where chattel mortgagee, who had foreclosed mortgage covering cattle, had an interest in 15 head of bulls which were kept on land involved approximately two months during period of redemption after foreclosure of mortgage on the land, the chattel mortgagee was liable for proportionate value of use of land during the redemption period. (I. C. A., sec. 8-407.)

10. Where it was necessary for appellants to prosecute their appeal to obtain relief, appellants were entitled to entire costs on appeal.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Albert H. Featherstone, Presiding Judge.

Action by appellants, purchasers at execution sale on foreclosure of real estate mortgage, to recover rent for the use and occupation of said premises during the period of redemption by Thiessen, mortgagor, and Wassem. The trial court dismissed the action against Wassem, and gave judgment against Thiessen. Appellants appeal from the entire judgment and Thiessen cross-appeals from the judgment against him. Judgment against cross-appellant is affirmed, and the judgment of dismissal as to respondent Wassem is reversed and remanded with directions.

Judgment affirmed. Five-sixths of the costs to appellants Caldwell.

Cox Ware & Stellmon and Leo McCarty, for Appellants and Cross-respondents.

The purchaser at foreclosure sale, from the time of sale until a redemption, is entitled to receive from the tenant in possession the rents of the property sold or the value of the use and occupation thereof, and redemptions in such cases may be made as in the case of sales under execution. (Secs. 8-407, 9-101, I. C. A.; Ferguson v. Sullivan (1937), 58 Idaho 428, 74 P.2d 183, 113 A. L. R. 1349; Sherwood v. Daly (1938), 58 Idaho 744, 78 P.2d 357.)

The word "tenant" contained in section 8-407, I. C. A., is used in its generic sense and includes not only a mortgagor in possession but also anyone holding by, through or under him. (Ferguson v. Sullivan (1937), supra; Sherwood v. Daly (1938), supra; Citizens' Nat. Bank v. Western Loan & Bldg. Co. (1922), 64 Mont. 40, 208 P. 893 at 894; Walker v. McCusker (1887), 71 Cal. 594, 12 P. 723; Geo. B. Clifford & Co. v. Henry (1928), 40 N.D. 604, 169 N.W. 508; Harris v. Reynolds (1859), 13 Cal. 514, 515, 73 Am. Dec. 600.)

One who pastures cattle on land after foreclosure of trust deed or mortgage with notice that purchaser will hold him accountable for rent is liable to such purchaser therefor as tenant in possession. (Phillips v. Pacific Land & Cattle Co. (1931), 116 Cal.App. 290, 2 P.2d 566.)

A person who uses property of another during period of redemption in an effort to protect or benefit other property upon which he has a lien, or if, being a creditor of the mortgagor in possession, he uses such property, he is liable for use and occupation under the statute as a tenant in possession. (Knight v. Truett (1861), 18 Cal. 113; Talley v. James Everard's Breweries (N. Y.), 116 N.Y.S. 657, 66 C. J. 101, par. 40.)

Butler & Madden, for Respondents and Cross-appellant.

A mortgagor in possession is not liable for rents and profits during the period of redemption. (Secs. 8-407, 8-406, 6-601, 9-101, 70-102, 8-204, I. C. A.; Walling v. Bown, 9 Idaho 740-745, 76 P. 318; Model Laundry Co. v. Barnett, 180 Iowa 55, 162 N.W. 830; Healy v. Taylor, 37 Idaho 749, 218 P. 190; Lemp v. Lemp, 32 Idaho 397-401, 184 P. 222; Jones on Mortgages, 8th ed., sec. 2070; 3 Words and Phrases Judicially Defined, 2567.)

GIVENS, J. Ailshie, C. J., Budge and Holden, JJ., concur. Morgan, J., did not participate in the decision of this case.

OPINION

GIVENS, J.

--October 23, 1934, Wassem, mortgagee of a chattel mortgage given by Thiessen, his brother-in-law, as mortgagor, purchased at foreclosure sale thereof the cattle covered thereby. October 24, 1934, Thiessen and Wassem entered into a contract whereby Thiessen was to feed and care for said cattle, the net return derived therefrom to be divided 20 per cent to Wassem and 80 per cent to Thiessen, an accounting to be made from time to time, termination to be upon 90 days notice in writing from one to the other at the end of any year.

June 11, 1935, appellants were issued a sheriff's certificate of sale under a foreclosure of a real estate mortgage against Thiessen, and June 10, 1936, appellants sued cross-appellant Thiessen as "tenant" and respondent Wassem as owner of the cattle fed upon the land, under section 8-407, I. C. A., for $ 1,919.52 alleged to be the value of the use and occupation of the real estate foreclosed in the proceedings above mentioned.

Wassem denied he was owner of the cattle during the period of redemption, contending the joint written contract had been terminated and a subsequent oral agreement entered into prior to June 11, 1935, under which the cattle were sold by Wassem to Thiessen for $ 7,500, and that July 17, 1935, Thiessen made final payment thereon.

The trial court dismissed the action against Wassem and gave judgment for $ 1,554.81 against Thiessen. The Caldwells appeal from the entire judgment and Thiessen cross-appeals from the judgment against him.

The two points at issue are: First, whether a mortgagor remaining in possession after foreclosure sale and issuance of sheriff's certificate thereof during the period of redemption is liable to pay for the use and occupation of the land; appellants contending the word "tenant" in section 8-407, I. C. A., supra, so covers the mortgagor in possession, respondents urging the contrary.

California in 1859 (Harris v. Reynolds, 13 Cal. 514, 73 Am. Dec. 600) under a statute identical with ours, held that during the year's period of redemption the mortgagor must pay the purchaser as owner of the land for the use and occupancy thereof. The only case squarely to the contrary is Local Realty Co. v. Lindquist, 96 Utah 297, 85 P.2d 770. The California holding is the only logical one for this reason: After the sale the title to the land is in the purchaser (Northwestern & Pacific Hypotheekbank v. Nord, 56 Idaho 86, 50 P.2d 4; Sherwood v. Daly, 58 Idaho 744, 78 P.2d 357) and he is entitled, therefore, to receive compensation for its use. If redemption is made no new title is created but the mortgagor's title is merely revived (Northwestern & Pacific Hypotheekbank v. Nord, supra) and in that event the statute gives him all that he is entitled to by providing that rents paid shall be applied on the redemption. (Sec. 8-407, I. C. A., supra; Smith v. Howell, 91 Ore. 279, 176 P. 805; Reichert v. Sooy-Smith, 85 Ore. 251, 165 P. 1174; Fields v. Crowley, 71 Ore. 141, 142 P. 360; Citizens' Nat. Bank v. Western Loan & Building Co., 64 Mont. 40, 208 P. 893; Mortgage Investment Co. v. Taylor, 49 Ariz. 558, 68 P.2d 340; Great Northern State Bank v. Lindvold, 57 N.D. 610, 223 N.W. 345.)

If no redemption is made the value of the use and occupation must follow the holder of the legal title, namely, the purchaser. It is axiomatic that a statute adopted from another state will be given the construction and meaning given...