Civils v. First National Bank of Pocatello

• Decision Date: 30 November 1925
• Citation: 241 P. 1023,41 Idaho 690
• Parties: MRS. R. M. CIVILS, Administratrix of the Estate of OLIVER K. EXUM, Deceased, Appellant, v. THE FIRST NATIONAL BANK OF POCATELLO, a Banking Corporation, and H. W. HENDERSON, Sheriff of Bannock County, Respondents
• Court: Idaho Supreme Court

241 P. 1023

41 Idaho 690

MRS. R. M. CIVILS, Administratrix of the Estate of OLIVER K. EXUM, Deceased, Appellant, v. THE FIRST NATIONAL BANK OF POCATELLO, a Banking Corporation, and H. W. HENDERSON, Sheriff of Bannock County, Respondents

Supreme Court of Idaho

November 30, 1925

COMMUNITY PROPERTY-FORECLOSURE OF MORTGAGE-CANCELATION OF INSTRUMENTS-RIGHTS OF WIFE-ADMINISTRATRIX' RIGHTS.

1.A wife joined as a partydefendant in an action to foreclose a mortgage upon community property, if she be not served, or does not voluntarily appear in the action, is not bound, nor are her rights concluded by the judgment, and she has the right to separately defend her rights.

2.The right of a wife to defend against foreclosure of a community property mortgage, on the ground of payment, and that she never signed the mortgage, and that her husband was unlawfully prevented from defending, passed upon her death as an incident to her part ownership of the community, to her husband, and on his death from him to his administratrix.

3.If paragraphs of a complaint do not state a cause of action or are not essential to the statement of a cause of action it is not error to strike them.

Appeal from the District Court of the Fifth Judicial District, for Bannock County.Hon. Robert M. Terrill, Judge.

Reversed.

R. J Hogan and F. E. Tydeman, for Appellant.

The community property cannot be encumbered unless the instrument encumbering the same is signed and acknowledge by the wife.The mortgage upon which the judgment was secured was void.(C. S., sec. 4666;Wits Keets Poo v. Rowton,28 Idaho 193, 152 P. 1064;Myers v. Eby,33 Idaho 266193 P. 77, 12 A. L. R. 535;Knudsen v. Lythman,33 Idaho 794, 200 P. 130;Fargo v. Bennett,35 Idaho 359, 206 P. 692;McKinney v. Merritt,35 Idaho 600, 208 P. 244.)

If a court grants relief which under no circumstances it has authority to grant, the judgment to that extent is void, although it may have jurisdiction over the subject matter and the persons.(Wright v. Atwood,33 Idaho 455, 195 P. 625.)

Budge & Merrill and J. M. Stevens, for Respondents.

One defendant cannot raise the question of sufficiency of service of summons on a codefendant, where the sheriff's return showing personal service is regular on its face.(B. F. Salzar Lumber Co. v. Lindenmeier,54 Colo. 491, 131 P. 442;Hinton v. Knott, 134 Ill.App. 294.).

GIVENS, J. William A. Lee, C. J. , and Wm.E. Lee, J., concur.Budge, J., being disqualified, took no part in the opinion.TAYLOR, J., Concurring in Part and Dissenting in Part.

OPINION

GIVENS, J.

Appellant sues as administratrix of Oliver K. Exum, survivor of Allie Exum, both dying March 27, 1923, to cancel a mortgage covering community property of the deceased Exums and to vacate and set aside a foreclosure and sheriff's certificate of sale pursuant judgment, and restrain the sheriff from executing a deed.

The complaint in part alleged that Allie Exum never signed the mortgage and that summons in the foreclosure action was never served upon her.On respondents' motion the court struck certain paragraphs of the complaint, and refused to admit any evidence on the ground that portions of the complaint not stricken did not state a cause of action.

Allie Exum was joined as a defendant in the original foreclosure proceedings and therefore was entitled to defend her own right and upon her husband's neglect to defend, to defend his right also.(C. S., sec. 6638;Overland Nat. Bank v. Halveston33 Idaho 489, 196 P. 217.)Since a wife has the right to defend after a disclaimer is filed by the, husband Stowell v. Tucker,7 Idaho 312, 62 P. 1033), she would certainly have such right after he has defaulted.

If process was not served upon her and she did not voluntarily appear she was not bound by the judgment.(34 C. J. 994.)If she did not sign the mortgage it was of course void.(Knudsen v. Lythman,33 Idaho 794, 200 P. 130;Fargo v. Bennett,35 Idaho 359, 206 P. 692;McKinney v. Merritt,35 Idaho 600, 208 P. 244;Childs v. Reed,34 Idaho 450, 202 P. 685;C. S., sec. 4666.)

The portion of the complaint remaining after paragraphs 15 to 22, inclusive, were stricken, on its face stated a cause of action, since the wife had the right to assert her defenses to the mortgage and such rights on her death passed as an incident to her share in the community to her husband and from him in turn to the appellant.

Paragraphs 15 to 19 of the amended complaint were to the effect that Allie Exum never signed the mortgage; that Oliver K. Exum had forged her name to it and that by fraud he had prevented her from appearing and defending the action.There was no allegation that respondents knew of such situation prior to the foreclosure.The administratrix has no greater rights than Oliver K. Exum, and while in connection with the interest of Allie Exumhe could have raised any defense she had, not based on his wrongful acts, he could not have asserted a defense based on his unlawful participation therein; hence these paragraphs did not state all or any part of a cause of action in appellant's behalf and there was no error in striking them.Paragraphs 20 to 22 alleged in substance that respondents...