Eastern Idaho Loan & Trust Company, a Corp. v. Blomberg

• Decision Date: 04 May 1941
• Docket Number: 6834
• Citation: 113 P.2d 406,62 Idaho 497
• Court: Idaho Supreme Court
• Parties: EASTERN IDAHO LOAN & TRUST COMPANY, a corporation, Respondent, v. HILDA C. BLOMBERG and AXEL BLOMBERG, her husband, Appellants

113 P.2d 406

62 Idaho 497

EASTERN IDAHO LOAN & TRUST COMPANY, a corporation, Respondent, v. HILDA C. BLOMBERG and AXEL BLOMBERG, her husband, Appellants

No. 6834

Supreme Court of Idaho

May 4, 1941

MORTGAGES-DEFINITION OF-PLEADING-GENERAL DEMURRER-PRESUMPTION AS TO RULING ON-EVIDENCE-WAIVER OF OBJECTION TO-TRIALS-ISSUES-THEORY OF PARTIES AS TO-MORTGAGE FORECLOSURE - REDEMPTION - JURIES - INSTRUCTIONS - CONTRACTS-Quantum Meruit.

1. A "mortgage" is a contract by which specific property is hypothecated for performance of an act without necessity of change of possession. (I. C. A., sec. 44-801.)

2. Where record shows that general demurrer to complaint was filed, but is silent as to any disposition thereof presumption will be indulged on appeal that demurrer was overruled or abandoned.

3. In suit to foreclose mortgage, complaint held sufficient on general demurrer as stating sufficient facts to put defendants on their defense.

4. A general demurrer to complaint, alleging sufficient facts to constitute cause of action entitling plaintiff to any relief against defendant, should be overruled.

5. Failure to object to evidence when offered is "waiver" of objection that it is not admissible under pleadings.

6. Where both parties to action try case on same theory as to issue tendered by pleadings, they are bound by such theory on appeal.

7. A mortgage foreclosure decree, providing that purchaser of mortgaged premises at foreclosure sale should be let into possession thereof and should have possession on production of sheriff's deed, conformed to statute relating to redemption of realty from mortgage foreclosure sale, and cannot reasonably by construed to mean that mortgagee or any other purchaser at such sale was to have possession of mortgaged property prior to one year from date of sale or before issuance of sheriff's deed. (I. C. A secs. 8-403, 9-101.)

8. In mortgage foreclosure suit, tried to court with jury sitting in advisory capacity, giving or refusal of instructions to jury will not be reviewed on appeal, as jury's findings are not binding on court and cannot relieve it from necessity of making its own findings.

9. In suit to foreclose mortgage, providing for release thereof when mortgagors satisfactorily completed drilling of two wells for mortgagee "so as to furnish a satisfactory flow of water," where evidence showed that mortgagors abandoned drilling of one well when unable to release bit from formation in which it became stuck before development of any water in well and made no effort to drill other well, and there was no evidence that dry hole, with bit fast in bottom thereof, was of any value to mortgagee or any one court's failure to find that mortgagors were entitled to compensation for partial drilling of one well on quantum meruit basis was not error.

10. Parties' rights and liabilities as to compensation under contract are limited by its terms, which must be interpreted according to general rules of construction, and where contract contains express provision as to way in which compensation shall be had, agreement to pay it in any other manner will not be implied.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. A mortgage is a contract by which specific property is hypothecated for the performance of an act without the necessity of a change of possession. (I. C. A., sec. 44-801.)

II. Where the record shows a general demurrer was filed, but is silent as to any disposition of it, the presumption will be indulged on appeal that it was overruled or abandoned.

III. A general demurrer should be overruled if the facts alleged in the complaint are sufficient to constitute cause of action entitling plaintiff to any relief against defendant.

IV. Failure to object to evidence at the time it is offered waives objection that it is inadmissible because not within the issues framed by the pleadings.

V. Where both parties to an action try the case on the same theory as to the issues framed by the pleadings, they are bound by it.

VI. I C. A., sec. 8-403, which is applicable to redemption of real property from mortgage foreclosure sale, provides for the issuance of a sheriff's deed to the purchaser, or his assignee, at the expiration of a year after the sale, and that the debtor shall have the entire year within which to redeem the property. The decree in this case examined and found to conform to that statute.

VII. In an equity case, where a jury is called in an advisory capacity, instructions will not be reviewed.

VIII. Where parties to a contract have therein expressly agreed to the compensation to be paid for its performance, and the manner in which it shall be paid, an agreement to pay a different amount, or in any other manner, will not be implied.

APPEAL from the District Court of the Ninth Judicial District for Bonneville County. Hon. C. J. Taylor, Judge.

Suit to foreclose a mortgage. Decree for plaintiff. Affirmed.

Decree affirmed. Costs awarded to respondent.

A. A. Merrill and L. H. Merrill, for Appellants.

Sufficiency of complaint. (Ira H. Challis v. Nick Fiorito et al., 41 Idaho 653, 240 P. 932; People v. Whiteworth, 41 Idaho 225, 238 P. 306; State v. Enking, 59 Idaho 321, 82 P.2d 649; Curtis v. Pfost, 53 Idaho 1; Coulson v. Aberdeen Springfield Canal Co., 39 Idaho 320, 227 P. 29; Brunzell v. Stevenson, 30 Idaho 202, 164 P. 89.)

Possession of property during year of redemption. (People v. Putnam, 122 P. 797; French v. Jarvis, 79 Cal. 571, 246 P. 1032; Hays v. Wagner, 98 Kan. 740, 161 P. 584; Blodget Loan Co. v. Hansen, 86 Mont. 406, 284 P. 140.)

O. A. Johannesen, for Respondent.

An order denying a motion for a new trial will not be disturbed in the absence of clear abuse of the court's discretion. (Hurt v. Monumental etc. Co., 35 Idaho 295, 302, 206 P. 184; Watt v. Standfield, 36 Idaho 366, 371, 210 P. 998.)

The appellate court will not disturb a verdict or judgment or order denying a new trial, where there is substantial conflict in the testimony and no rule of law appears to have been violated. (Mootrey v. Hawley, 1 Idaho 543.)

Error cannot be predicated upon the giving of an instruction in an equity case, where the jury acts in an advisory capacity. (Hill v. Porter, 38 Idaho 574, 581, 223 P. 538; Fritcher v. Kelly, 34 Idaho 471, 201 P. 1037.)

MORGAN, J. Budge, C. J., and Givens, Holden and Ailshie, JJ., concur.

OPINION

MORGAN, J.

In 1919 respondent entered into a contract with appellants to sell them a house and two lots in Idaho Falls, Idaho, hereafter called "the property," for $ 3,500 to be paid in installments, pending which the title was retained by the vendor and the purchasers were given possession. November 1, 1930, the contract not having been performed with respect to payments, respondent executed and delivered to appellants a bond for a deed, to take the place of the contract, wherein it was recited that it agreed to sell and convey the property to appellants for $ 3,500, payable as follows: $ 705.89, cash, the receipt of which was acknowledged, and the balance, $ 2,794.11, in monthly installments of $ 25 each, due and payable on the first of each and every month, beginning December 1, 1930. Payments were to be applied first to the payment of interest, at the rate of 7% per annum, and the balance to the reduction of the principal. The purchasers were to pay the taxes and keep the house insured.

August 25, 1933, appellants made application to Home Owners' Loan Corporation for a loan of $ 2,800 with which to pay off the indebtedness against the property. The application was approved for a loan of $ 1,745.17, of which $ 1,492.40 was to be applied toward the payment of the indebtedness and the balance was to be used in payment of taxes on the property. Appellants executed and delivered to Home Owners' Loan Corporation a mortgage on the property to secure the payment of $ 1,745.17. At that time, the indebtedness due to respondent on the purchase price was in excess of $ 3,000, and it refused to deed the property to appellants unless they gave it a second mortgage securing the payment of the balance, after deducting the $ 1,492.40. This appellants refused to do.

The matter remained in an unsettled condition until April 1, 1936, when an agreement was reached between appellants and respondent which resulted in the execution by the former, and acceptance by the latter, on that day, of a promissory note, secured by a second mortgage on the property. By the note appellants promised to pay respondent, September 1, 1936, "$ 1.00 and other valuable considerations recited in mortgage of even date." The following appears in the mortgage:

"This mortgage will be released when the Mortgagors hereof have satisfactorily completed the drilling of two wells for the Mortgagee, one to be drilled at the place designated by Mortgagee on the Southwest Quarter of the Southwest Quarter (SW 1/4 SW 1/4) of Section Twenty-three (23) Township Three (3) North Range Thirty-seven (37) and one to be drilled on the Northeast Quarter of the Southeast Quarter (NE 1/4 SE 1/4) of Section Two (2) Township Three (3) North Range Thirty-eight (38), each well to be drilled so as to furnish a satisfactory flow of water.

"All casings and pump equipment to be furnished by Mortgagee.

"Drilling of the wells is to be started as soon as weather conditions will permit and is to be fully completed on or before September 1, 1936 when this mortgage will become due and payable."

This suit was commenced by respondent against appellants to foreclose that mortgage.

A mortgage is defined by Idaho Code Annotated, sec. 44-801, to be, "a contract by which specific property is hypothecated for the performance of an act without the necessity of a change...