Dahlstrom v. Walker

• Citation: 194 P. 847,33 Idaho 374
• Parties: CLORA MARKLE DAHLSTROM, ALVIN MARKLE, and CHARLES B. ADAMSON and GEORGE B. MARKLE, Jr., Administrators C. T. A. of the Estate of GEORGE B. MARKLE, Deceased, Appellants, v. RAMSEY M. WALKER, Trustee, Respondent
• Decision Date: 29 December 1920
• Court: United States State Supreme Court of Idaho

194 P. 847

33 Idaho 374

CLORA MARKLE DAHLSTROM, ALVIN MARKLE, and CHARLES B. ADAMSON and GEORGE B. MARKLE, Jr., Administrators C. T. A. of the Estate of GEORGE B. MARKLE, Deceased, Appellants, v. RAMSEY M. WALKER, Trustee, Respondent

Supreme Court of Idaho

December 29, 1920

TRUSTS - JUDGMENTS BY CONFESSION - LIMITATION OF ACTIONS - LACHES-CAPACITY TO SUE.

1. It is the duty of a trustee to administer his trust in accordance with the provisions of the instrument by which it is created, if in so doing he does not violate the law.

2. In accordance with C. S., sec. 7998, an affidavit taken in another state, to be used in this state, may be taken before any notary public in such state.

3. The courts of this state are authorized to take judicial notice of the seals of notaries public of sister states.

4. As a general rule, a corporation, in a proper case, by its proper officer, may confess judgment without action.

5. A confession of judgment in this state, executed in conformity with the statute, in substance and form, by an officer having apparent authority so to do, and in addition thereto reciting that his action in so doing was authorized by the directors of the corporation, whose action was ratified by the stockholders thereof, is not void upon its face and is not subject to successful collateral attack.

6. A judgment of a corporation obtained by confession, in favor of an officer thereof, is not void when it does not appear that it was fraudulently obtained.

7. A judgment by confession for an amount due upon a judgment of foreclosure of a mortgage, in consideration of a release of the judgment of foreclosure, is not illegal or against public policy. R. S., sec. 4520 (now C. S., sec. 6949), does not contain a limitation upon the power to enter into a contract by which a mortgagee may agree to waive or release the security of his mortgage. This section refers only to the form of action to recover a debt which at the time of its commencement is secured by a mortgage.

8. The fact that a judgment may be dormant does not prevent it from being a lawful claim against the judgment debtor.

9. A foreign corporation doing business in this state, having appointed a statutory agent upon whom process may be served but which fails to refill the office of statutory agent upon his removal from the state, is denied the benefit of the statutes of the state limiting the time for commencement of civil actions during the time the designated agent is absent from the state.

10. The doctrine of laches is one of equitable cognizance only, and is not applicable to an action to enforce a claim at law.

11. The right of administrators appointed by the courts of another state to sue in this state cannot be questioned for the first time in the supreme court upon appeal.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. John M. Flynn, Presiding Judge.

A proceeding to direct a trustee in regard to the distribution of trust funds. Order against certain claimants, who appeal. Reversed.

Order reversed, with directions, no costs awarded.

J. E Gyde, for Appellants.

There being no designated agent upon whom process against this foreign corporation could be served, the corporation and the trustee representing it could not avail itself of the benefits of the statute of limitations. (Katz v Herrick, 12 Idaho 1, 86 P. 873; Graham v. Brown Bros. Co., 30 Idaho 651, 168 P. 9; Hale v. St. Louis & S. F. R. Co., 39 Okla. 192, Ann. Cas. 1915D, 907, 134 P. 949, L. R. A. 1915C, 544.)

Under statutes similar to sec. 6056, C. S., the signature and seal of a notary public of another state to an affidavit is sufficient. (Goree v. Wadsworth, 91 Ala. 416, 8 So. 712; Singletary v. Watson, 136 Ga. 241, 71 S.E. 162; Wood v. St. Paul R. R. Co., 42 Minn. 411, 44 N.W. 308, 7 L. R. A. 149.)

If the contention of counsel for respondent to the effect that the Pennsylvania executors of the estate of George B. Markle, deceased, cannot make a claim in this state under the judgment due said Markle is correct, it cannot be urged for the first time in the supreme court. (Anthes v. Anthes, 21 Idaho 305, 121 P. 553; Whitley v. Spokane etc. R. Co., 23 Idaho 642, 132 P. 121.)

The Portland Mining Company in 1905 had the same power as a natural person to enter into any contract which an individual could enter into, and had power to confess the judgments. (2 Fletcher, Cyclopedia of Corp., p. 1845, sec. 900; 1 Clark & Marshall on Corp., p. 672, sec. 264; Solomon v. C. M. Schneider Co., 56 Neb. 680, 77 N.W. 65; Keyser v. Shute, 3 Ariz. 336, 29 P. 386; Prouty v. Prouty, 155 Pa. 112, 25 A. 1001; Forty Acre Spring Livestock Co. v. West Texas B. & T. Co. (Tex. Civ. App.), 111 S.W. 417.)

Contracts between a corporation and its officers or stockholders are not void, and are voidable only, where not made in good faith or injurious to the corporation. (2 Fletcher, Cyclopedia of Corp., p. 1855, sec. 907.)

H. J. Hull and I. N. Smith, for Respondent.

The official character of a foreign notary must be shown and certified to before his purported acts will be accepted in any state other than that of his residence. (2 C. J. 335; Desnoyes v. First Nat. Bank, 188 Ill. 312, 58 N.E. 994.)

Courts of equity do not favor antiquated or stale demands and refuse to interfere where there has been gross laches in commencing the proper action or long asquiescence in the assertion of adverse rights. (Ryan v. Woodin, 9 Idaho 525, 75 P. 261; Godden v. Kimmel, Admx., 99 U.S. 201, 25 L.Ed. 431; Badger v. Badger, 2 Wall. 87, 17 L.Ed. 836, see, also, Rose's U.S. Notes.)

The power to serve process on a foreign corporation fixes the time when the statute begins to run as to it. (Colonial & U.S. Mortgage Co. v. N.W. Thresher Co., 14 N.D. 147, 116 Am. St. 642, 8 Ann. Cas. 1160, 103 N.W. 915, 70 L. R. A. 814; McCabe v. Illinois Cent. R., 13 F. 827, 4 McCrary, 492; Turcott v. Yazoo Ry., 101 Tenn. 102, 70 Am. St. 661, 45 S.W. 1067, 40 L. R. A. 768; 12 Am. & Eng. Ency of Law, 2d ed., 897, 904, 905.)

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

On March 9, 1912, the Portland Mining Company, an Oregon corporation, conveyed certain mining property, situated in Shoshone county, to George B. Markle, as trustee. Upon the death of George B. Markle, the district court appointed respondent Ramsey M. Walker as his successor. The provisions of the instrument under which George B. Markle held the property in trust are in part as follows:

" . . . . That the said George B. Markle be, and he is hereby authorized, empowered and directed to sell said property for the best price and on the best terms obtainable therefor, for the use and benefit of the stockholders of this corporation [Portland Mining Company], and that from the proceeds of the sale of the said premises he shall deduct the expenses of such sale, including the payment of any commission agreed upon and the amount due him, the said George B. Markle, for taxes heretofore paid, or which he may hereafter pay upon said premises, and any other lawful charges or claims against this company, paying the overplus, if any there be, to the stockholders of this corporation according to their holding of stock therein."

The order of the court appointing Walker trustee directed that--

" . . . . He is hereby authorized, empowered and directed to sell said property for the best price and on the best terms obtainable therefor, for the use and benefit of the stockholders of the Portland Mining Company on the 9th day of March, 1912; and that from the proceeds of such sale of the said premises he shall deduct the expenses of such sale including the payment of any commission agreed upon, and any other lawful claims, paying the overplus to the stockholders of said corporation as aforesaid their portion of said proceeds."

Walker, as trustee, sold the property for $ 100,000, and thereafter filed in the court a final report of his proceedings in the execution of the trust, and prayed that an order be made directing that the residue of said trust fund be distributed to the person or persons found to be entitled thereto by the court.

Clora Markle Dahlstrom, Alvin Markle, and Charles B. Adamson and George B. Markle, Jr., administrators, C. T. A., of the estate of George B. Markle, deceased, filed claims against the trust fund. The claims of Clora Markle Dahlstrom and Alvin Markle set forth that on the fifth day of December 1902, Clora Markle Dahlstrom recovered a judgment foreclosing a mortgage upon the property described in the trust deed, and that on the same day Alvin Markle recovered a judgment foreclosing a mortgage upon the same property. On the eleventh day of April, 1905, a satisfaction of each of these judgments was filed, and on the same day, in consideration thereof, the Portland Mining Company confessed judgments in favor of Clora Markle Dahlstrom and Alvin Markle, each in a sum equal to the principal amount found due in the foreclosure decree, with interest from the date of that decree. On the same day a confession of judgment was filed by the company in favor of George B. Markle for the sum of $ 2,172.98. The amount of these judgments exceeded the trust funds in the hands of Walker. Certain other claims were presented and allowed by stipulation of the parties and paid by the trustee. The court disallowed the claims of Clora Markle Dahlstrom, Alvin Markle, and Charles B. Adamson and George B. Markle, Jr., administrators, C. T. A., as above set out, and ordered that the residue of the funds be distributed among the stockholders of the Portland Mining Company pro rata, deducting from the shares of Clora Markle Dahlstrom and Alvin Markle certain sums of money properly chargeable against their...