Cleland v. McLaurin

• Decision Date: 03 January 1925
• Citation: 232 P. 571,40 Idaho 371
• Parties: H. F. CLELAND, Administrator of the Estate of HENRY WING, Deceased, Respondent, v. ISABELLA MCLAURIN, Appellant
• Court: Idaho Supreme Court

232 P. 571

40 Idaho 371

H. F. CLELAND, Administrator of the Estate of HENRY WING, Deceased, Respondent, v. ISABELLA MCLAURIN, Appellant

Supreme Court of Idaho

January 3, 1925

PLEADING - ACTION TO SET ASIDE CONVEYANCE - ADMINISTRATOR AS PARTY-GENERAL DENIAL WHERE COMPLAINT VERIFIED-NATURE OF ACTION-TEST OF RIGHT TO JURY TRIAL-DAMAGES-EXPENSES OF LITIGATION - FAILURE TO SERVE AMENDED ANSWER - SERVICE ON NONRESIDENT ATTORNEY.

1. An administrator is the proper party to quiet title or to remove a cloud from the title to property belonging to the estate.

2. Held, that the allegation that "at all times herein mentioned plaintiff was and now is the duly appointed qualified and acting administrator of the estate of Henry Wing, deceased," is a sufficient allegation of plaintiff's qualifications as administrator and of the death of Wing.

3. Held, that this action is an equitable proceeding to set aside a conveyance, not an action for the recovery of real property within the meaning of C. S., sec. 6837, and that appellant was not entitled to a jury.

4. In determining whether or not the parties are entitled to a trial by jury, courts must look to the ultimate and entire relief sought, and if the question of damages is incidental it is not controlling.

5. In that class of actions in which the expense of litigation is recoverable as damages, it cannot be recovered unless it appears it was necessarily incurred and is reasonable in amount.

6. Under the provisions of C. S., sec. 6694, where the complaint is verified the defendant must deny specifically each material allegation. A general denial is insufficient to raise an issue.

7. Where an amended answer had been filed but had not been served upon plaintiff or his counsel, the lower court properly sustained plaintiff's motion to strike such amended answer.

8. The fact that counsel upon whom a memorandum of costs and disbursements is served is a nonresident attorney does not make such service invalid where the attorney has appeared generally on behalf of the client.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Action to set aside a conveyance and mortgage. Judgment for plaintiff. Modified.

Judgment affirmed. No costs awarded on the appeal.

Lynn W Culp, for Appellant.

The action is clearly one to recover specific real property, with damages. The respondent claims title for the estate he presumes to represent. The appellant alleges herself to be the owner of the premises described in the complaint, and entitled to the possession thereof. The appellant was therefore, entitled to a trial by a jury. (Const., art. 1, sec. 7; C. S., sec. 6837.)

Where the action is one to recover title, the constitutional provision that "the right of trial by jury shall be inviolate" applies. (Gordon v. Munn, 83 Kan. 242, 21 Ann. Cas. 1299, 111 P. 117.)

Special damages must be specifically pleaded and established by proof. (Sommerville v. Idaho Irr. Co., 21 Idaho 546, 123 P. 302.)

The trial court is required to be liberal in permitting amendments to pleadings. (Kroetch v. Empire Mill Co., 9 Idaho 277, 74 P. 868; Dunbar v. Griffiths, 14 Idaho 120, 93 P. 654; Havlick v. Davidson, 15 Idaho 787, 100 P. 91; Harrison v. Russell, 17 Idaho 196, 105 P. 48.)

Reed & Boughton, for Respondent.

An administrator is a proper party to quiet title or remove a cloud from the title to property belonging to the estate. ( Harris v. McCrary, 17 Idaho 300, 105 P. 558.)

The allegation that "at all times herein mentioned the plaintiff was and now is the duly appointed, qualified and acting administrator of the estate of Henry Wing, deceased," is a sufficient allegation of plaintiff's qualification. (18 Cyc. 978, 979.)

The jury was not at any time demanded to try the question of damages. It was not such a case as defendant was entitled to have submitted to a jury, either under the constitution or C. S., sec. 6837. (Rees v. Gorham, 30 Idaho 207, 164 P. 88.)

Furthermore, there was no proper denial as to the amount of damages, and it was not necessary to prove the fact admitted in the pleadings. (Broadbent v. Brumback, 2 Idaho 366, 16 P. 555; Burke v. McDonald, 2 Idaho 679, 33 P. 49; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac.81.)

As the complaint was verified, it was necessary for the defendant to specifically deny each material allegation. (C. S., sec. 6694; Joyce v. Rubin, 23 Idaho 296, 130 P. 793.)

As all of the material allegations of the complaint not specifically denied must be taken as true, it was not necessary to prove them on the trial. (Burke v. McDonald, supra; Wheeler v. Gilmore etc. R. Co., 23 Idaho 479, 130 P. 801.)

In cases of fraud and wilful wrong it is proper to allow attorneys' fees and other expenses of suit as damages. ( Flack v. Neill, 22 Tex. 253; Bracken v. Neill, 15 Tex. 109; 13 Cyc. 79; Jenkins v. Commercial Nat. Bank, 19 Idaho 290, 113 P. 463.)

MCCARTHY, C. J. William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, C. J.

This action was instituted by respondent as public administrator for the purpose of canceling a certain deed, executed by one Wing in favor of appellant, and a mortgage, executed by appellant in favor of said Wing, and also to recover damages alleged to have been sustained by reason of said deed and mortgage having been placed on record.

The cause was tried by the court without a jury and judgment was entered for respondent herein canceling the deed and mortgage and allowing damages in the amount of $ 250. From that judgment this appeal was taken.

The court found that respondent was and now is the duly appointed, qualified and acting administrator of the estate of Henry Wing, deceased; that on July 6, 1918, Wing, being the owner of a certain lot in the city of Coeur d'Alene, sold the same to Robert Lang and Kate Lang, his wife, for $ 600, $ 100 being paid at the time of sale, the written contract of sale providing that $ 100 or more a year should be paid on the sixth day of July each year thereafter; that by the terms of said contract Wing agreed to deliver a merchantable title to said lot on payment of the purchase price; that the Langs went into possession under the contract of sale and that they had paid $ 400 of the principal and interest up to July 6, 1921, and on May 26, 1922, tendered the balance due and demanded a deed to said lot free and clear; that said Wing, on January 28, 1920, executed a warranty deed to the lot in question to the Langs and caused the same to be placed in escrow with the American Trust Company to be delivered to them upon payment of the full purchase price; that on July 6, 1920, Wing, after a hearing and examination in open court, was duly adjudged to be an incompetent by reason of old age and infirmity and that on the same day the American Trust Company was appointed guardian of the estate of said Wing, said company acting in that capacity until May 2, 1922; that Wing lived with appellant, no guardian of his person being appointed; that appellant knew of the appointment of the trust company as guardian of his estate, and she also knew of the sale to the Langs and of their payments to Wing and that they were in possession claiming to be the owners under said contract of sale; and that having full knowledge of these things she procured Wing to execute a deed to the lot in question in favor of her on May 11, 1921, and that she executed a mortgage in the sum of $ 2,000 in favor of the said Wing and caused both instruments to be recorded; that appellant wilfully, unlawfully and fraudulently induced Wing to make said deed and with intent to encumber the record title; that the estate of Wing was damaged to the extent of $ 250.

Appellant erroneously...