Evans v. Humphrey
| Decision Date | 14 November 1931 |
| Docket Number | 5690 |
| Citation | 51 Idaho 268,5 P.2d 545 |
| Parties | J. PAUL EVANS, Appellant, v. A. HUMPHREY, Trustee for the City of American Falls, Idaho, POWER COUNTY, Idaho, et al., Respondents |
| Court | Idaho Supreme Court |
EXECUTION WHEN VOIDABLE-RIGHTS OF OWNER-JUDGMENT, REVIVAL OF-APPEAL AND ERROR-HARMLESS ERROR.
1. Owner of property sold under execution had conditional interest subject to levy and sale under repeated executions under different judgments (C. S., secs. 6930, 6933 and 6932 par. 2).
2. Failure to file affidavit and motion for revival of judgment was waived, in absence of seasonable objection (C. S., sec 6939).
3. Order of revival of judgment giving name of plaintiff in caption and defendants sufficiently described parties.
4. Execution under which property was sold, calling for larger sum than was due, though erroneous, was not wholly void.
5. Any error in admitting evidence of circumstances under which revival of judgment was entered was harmless, where trial court sustained judgment.
6. Attempt by conclusion of law in suit to quiet title to property sold under execution, to fix ownership of wheat grown on premises, was not reversible error.
APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. C. J. Taylor, Judge.
Action to quiet title. Judgment for defendants. Affirmed.
Judgment affirmed. Costs to respondents. Petition for rehearing denied.
F. M. Bistline, for Appellant.
Where real estate is attempted to be sold during period of redemption, either no title passes thereby or purchaser at said sale becomes the successor in interest to the judgment debtors' right of redemption.
If the first alternative is held to be the law, then respondents obtained no title by virtue of the sale on June 14, 1927. (Sayre v. Vander Voort, 200 Iowa 990, 42 A. L. R. 884, 205 N.W. 760; Childress v. Monette, 54 Ala. 317; Merry v. Bostwick, 13 Ill. 398, 54 Am. Dec. 434; Watson v. Reissig, 24 Ill. 281, 76 Am. Dec. 746; Kell v. Worden, 110 Ill. 310; Hill v. Blackwelder, 113 Ill. 283; Herdman v. Cooper, 29 Ill.App. 589; Jones v. Perkins, 115 Kan. 759, 225 P. 97; Hamilton v. Hamilton, 51 Mont. 509, 154 P. 717; Ewing v. Cook, 85 Tenn. 332, 4 Am. St. 765, 42 A. L. R. 844, annotation 3 S.W. 507.)
If it is held that such sale is valid, then purchaser during period of redemption acquires by such sale judgment debtor's right of redemption and stands as successor in interest. If this view is adopted, appellant ceased to be judgment debtor's successor in interest, and stands as a redemptioner with all rights as such. (Dipple v. Neville, 82 Mont. 280, 267 P. 214.)
Or in equity appellant is entitled to a refund of his redemption money before respondents are entitled to have title quieted in them. (Bateman v. Kellogg, 59 Cal.App. 464, 211 P. 46.)
Bissell & Bird and A. Humphrey, for Respondents.
In view of the fact that C. S., sec. 6939, which authorizes revival judgments, is remedial in character and must be liberally construed (Merguire v. O'Donnell, 139 Cal. 6, 96 Am. St. 91, 72 P. 337), the revival judgments in 1565 are valid and effective. (No authorities.)
If only part of a judgment is void and such void part can be separated from the valid part, the valid part will be allowed to stand. (Backman v. Douglas, 46 Idaho 671, 677, 270 P. 618.)
An execution which merely calls for too much money is not void, but is merely voidable, and can be amended upon proper motion. (Hunt v. Loucks, 38 Cal. 372, 99 Am. Dec. 404, and authorities cited in footnotes. )
An execution is no more subject to collateral attack than a judgment. (Hunt v. Loucks, supra.)
It is a familiar principle that a debtor may direct application of a payment to one of several debts. (Shull v. Lawrence, 32 Idaho 527, 533, 186 P. 246.)
Mr. Justice Budge did not sit.
Appellant brought this suit to quiet title to the SW. 1/4 of Sec. 14, Twp. 6 S., R. 33 E., B. M., in Power county, Idaho. Two causes of action are stated in the amended complaint, the first in the form of a simple action to quiet title and the second setting up alleged defects in the title of respondent, praying that title be quieted in him and that the court set aside a certain execution sale held June 14, 1927, and that the certificate of sale issued thereunder to respondent A. Humphrey, Trustee, be canceled Respondents answered setting up the facts upon which they base title in A. Humphrey, Trustee for the City of American Falls, Power county, Idaho, and Independent School District No. 1 of Power county, Idaho. They likewise set up said title by way of cross-complaint and pray that title be quieted in said A. Humphrey, Trustee, and for other relief not necessary to mention.
The court found for the defendants and entered decree as prayed in the cross-complaint, from which plaintiff appeals.
On February 4, 1924, the Federal Reserve Bank of San Francisco obtained a judgment in case No. 1589 against Evans Brothers Land & Livestock Company, a corporation, in the district court for Power county, for the sum of $ 7,178.07, and on October 22, 1924, in the same court, the city of American Falls, Idaho, obtained a judgment, in case No. 1565 for $ 14,000, against said Evans Brothers Land & Livestock individually, and for $ 17,556.01, against Evans Brothers Land & Livestock Company, and other defendants jointly. In this last action appellant was permitted to intervene but his complaint in intervention was dismissed by the final decree.
These actions are two of eleven suits commenced by various plaintiffs to recover on bank depository bonds. (See Evans v. Power County, 50 Idaho 690, 1 P.2d 614.)
On October 20, 1926, the judgment debtor, Evans Brothers Land & Livestock Company, by quitclaim deed, reciting a consideration of $ 1, and other valuable considerations, conveyed the land in controversy to appellant, who owned 100 shares in said corporation and was the son of the president and brother of the secretary of said judgment debtor.
By agreement the several judgment creditors, in the eleven cases mentioned, assigned their interests in their judgments to respondent A. Humphrey, Trustee, for collection, etc., and we held in Evans v. Power County, supra, that it was immaterial to appellant whether the contract between the municipal corporations and himself under which respondent A. Humphrey purported to act as trustee, was ultra vires or not; following Evans v. Humphrey et al., (C. C. A.) 38 F.2d 984.
Prior to the execution and delivery of said quitclaim deed, the land in controversy was sold under an execution issued in case No. 1589, on August 2, 1926, to respondent A. Humphrey, Trustee. Thereafter, on June 14, 1927, and before the expiration of the one-year redemption period, the property was again sold under an execution issued in case No. 1565, to respondent A. Humphrey, Trustee. On August 1, 1927, before the period of redemption under the first sale had expired, appellant J. Paul Evans redeemed the property from the sale had under execution in case No. 1589, but did not offer to redeem from the sale in case No. 1565, from which sale there has been no redemption by anyone. There is no question of proration under our attachment statutes involved in this suit.
The principal question presented by this appeal is this: after the land was sold under execution in case No. 1589 on August 2, 1926, was there any interest of the judgment debtor remaining in the land subject to execution under the judgment obtained in case No. 1565, sold to A. Humphrey, Trustee, under the sale of June 14, 1927? Appellant contends that there was no such interest and is sustained in this contention by the case of Hamilton v. Hamilton, 51 Mont. 509, 154 P. 717, and other cases from the same jurisdiction interpreting statutes almost identical with our own, except that the Montana code did not provide that the judgment debtor might remain in possession of the premises sold during the period of redemption, at the time the case mentioned was decided. (McQueeney v. Toomey, 36 Mont. 282, 122 Am. St. 358, 13 Ann. Cas. 316, 92 P. 561; State v. Stephens, 63 Mont. 318, 206 P. 1094; Brown v. Timmons, 79 Mont. 246, 57 A. L. R. 1122, 256 P. 176; Dipple v. Neville, 82 Mont. 280, 267 P. 214.) These cases hold generally that the right of redemption is a mere personal privilege, not an interest in land and that a junior lienor must resort to redemption to acquire title to the land. We do not concur in this view.
C. S., sec. 6930, so far as pertinent, reads as follows:
Under statutes similar to ours and those obtaining in Montana, the California court has held that property may be sold in execution or foreclosure, of a junior lien, after sale under prior lien, but before the period of redemption has expired. (Bateman v. Kellogg, 59 Cal.App. 464, 211 P. 46; see, also, Hammond v. Horton, 137 Mo. 151, 37 S.W. 825.)
As to whether a judgment debtor's equity of redemption after execution sale is subject to levy and sale under execution under another judgment is a question upon which the courts are divided. (See 23 C. J. 345; Sayre v. Vander Voort, 200 Iowa 990, 42 A. L. R. 884, 205 N.W. 760.) And where the judgment debtor has conveyed...
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