Evans v. Power County
| Decision Date | 25 May 1931 |
| Docket Number | 5509 |
| Citation | 1 P.2d 614,50 Idaho 690 |
| Parties | J. PAUL EVANS, Appellant, v. POWER COUNTY, IDAHO, a Municipal Corporation, and CITY OF AMERICAN FALLS, IDAHO, a Municipal Corporation, et al., Respondents |
| Court | Idaho Supreme Court |
ATTACHMENT-LIENS-PRORATING AMONG CREDITORS-EXECUTION-SALE-MUNICIPAL CORPORATIONS AS PURCHASERS-REDEMPTION-ATTORNEY AND CLIENT.
1. Stipulation that either party could add any omissions in documentary evidence held binding on plaintiff on appeal.
2. Where judgments were entered on same day, and identical property was levied on in attachment in each case, attachment liens held merged in judgment liens.
3. Attachment need not be issued in subsequent actions to entitle creditors obtaining judgments to probate in proceeds of property attached in first action (C. S., sec. 6781, Laws 1921, chap. 206).
4. Right to probate in proceeds of property attached does not depend on knowledge of posting of notice that writ of attach- ment has issued (C. S., sec. 6781, Laws 1921, chap. 206).
5. That property was sold under execution in subsequent case did not affect validity of sale (C. S., sec. 6781, Laws 1921, chap. 206).
6. That property was sold under execution in subsequent action did not affect right of creditor obtaining judgment in prior action to probate in proceeds (C. S., sec. 6781, Laws 1921, chap. 206).
7. Subsequent grantee of defendant in attachment suit had no interest in disposition of proceeds of sale, which were insufficient to satisfy judgments.
8. Creditors commencing actions in proper time and prosecuting them diligently to final judgment need not intervene in attachment suit to prorate in proceeds of attached property (C. S., sec. 6781, Laws 1921, chap. 206).
9. County may purchase property at execution sale under judgment in its favor (C. S., secs. 3396, 3399, 3422).
10. City may purchase property at execution sale under judgment in its favor (C. S., sec. 3929).
11. School district may purchase property at execution sale under judgment in its favor (Laws 1921, chap. 215, sec. 3).
12. Subsequent grantee of judgment debtor could not claim invalidity of execution sale on ground that municipal corporations lacked authority to purchase property in name of trustee, if sale was otherwise valid.
13. Creditor obtaining judgment in action not commenced within thirty days after attachment levy in prior case held not entitled to prorate in proceeds of attachment, but such debtor obtained inferior lien (C. S., sec. 6781, Laws 1921, chap. 206, sec. 6907).
14. Purchaser at execution sale acquired title to property subject to right of redemption.
15. Redemption merely restored debtor's title to redemptioner free of incumbrance of liens foreclosed but subject to all other liens.
16. Where creditors' actions in federal court were not commenced within thirty days after attachment levy in actions in state court, debtor's assignee redeeming from sale under judgments in state court took subject to liens of federal court judgments (C. S., sec. 6781, Laws 1921, chap. 206, sec. 6907).
17. Want of authority, if any, of trustee of municipal corporations, judgment creditors in state court, to purchase at execution sale under federal court judgments, held not basis for complaint by judgment debtor's subsequent assignee.
18. Generally attorney has authority to do for client all acts necessary or incidental to prosecution of suit and affecting remedy.
19. Attorney has no power to bind client by compromise or release of cause of action itself.
20. Attorney for judgment debtor may give binding directions regarding execution sale.
21. Judgment debtor's attorney could agree that surplus realized above amount needed to satisfy execution in one case should be allocated to other designated judgments to save expenses.
22. Judgment debtor by failing to make prompt objection that sale was under satisfied execution impliedly ratified attorney's agreement that sales could be made under one execution and surplus allocated to other judgments.
23. Statute regarding attorney's authority to bind client held inapplicable to agreement of attorney for judgment debtor regarding execution sale (C. S., sec. 6573, par. 1).
24. Admitting oral testimony to establish agreement of judgment debtor's attorney regarding execution sale held not error, in absence of showing that agreement had been reduced to writing.
APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Ralph W. Adair, Judge.
Action to quiet title. Judgment for defendants. Affirmed.
Judgment affirmed. Costs to respondents. Rehearing denied.
F. M Bistline, for Appellant.
The affidavit of attachment, undertaking on attachment, the writ of attachment and the return to the writ of attachment, and the notice of levy on real estate under the attachment are no part of the judgment-roll (King v. Seebeck, 20 Idaho 223, 118 P. 292.)
Where real estate is sold in parcels at an execution sale after sufficient property has been sold to satisfy the execution, no more can be sold, and any attempted sale thereafter is void.
A municipal corporation has no power to purchase real estate except such as is necessary for the public use of the municipal corporation. (C. S., secs. 3422, 3929; 1921 Sess. Laws, chap. 215, sec. 3.)
This rule applies even though the purchase is made on a judgment in its favor. (Williams v. Lash, 8 Minn. (Gil. 441) 496; Shephard v. Malhoit, 33 Minn. 519, 24 N.W. 291; Ray County v. Bentley, 49 Mo. 236.)
It particularly applies where the purchase is not made upon a judgment in its favor. (Ray County v. Bentley, 49 Mo. 236.)
Bissell & Bird and A. Humphrey, for Respondents.
If appellant was aggrieved by the action of the various municipal corporations in employing respondent trustee and delegating him to handle certain business for them, he should have appealed from such action, as authorized by C. S., sec. 3509, and he cannot attack such action in this case. (Corker v. Elmore County Commrs., 10 Idaho 255, 77 P. 633; Johnson v. Savidge, 11 Idaho 204, 81 P. 616; Bobbitt v. Blake, 25 Idaho 53, 136 P. 211.)
The municipal corporations had authority to employ a trustee or agent to collect the judgments in question, buy the property in at execution sales, etc.
In case of a redemption from an execution sale the purchaser does not acquire absolute title during the redemption period, but a qualified title only, and during such period the judgment debtor has the right to redeem and the right of possession of the property. (C. S., secs. 6930 and 6917; Cantwell v. McPherson, 3 Idaho 721-726, 34 P. 1095; Keel v. Vinyard, 48 Idaho 49-53, 279 P. 420; 11 Cal. Jur. 126; Albrethsen v. Clements, 48 Idaho 80-83, 279 P. 1097.)
Where two judgments are entered against a debtor, levy is made and the property sold under the first judgment, and thereafter the judgment debtor's successor in interest redeems, the estate is restored, the first judgment and levy wiped out and nullified and the property is left subject to the lien of the second judgment as though the first judgment had never been entered. (C. S., sec. 6934; Kilpatrick Bros. Co. v. Campbell, 48 Idaho 914, 281 P. 471, and authorities therein cited; 18 Cal. Jur. 599; Steinour v. Oakley State Bank, 45 Idaho 49, 279 P. 420; Bateman v. Kellogg, 59 Cal.App. 464, 211 P. 46; DeRoberts v. Stiles, 24 Wash. 611, 64 P. 795; Kaston v. Storey, 47 Ore. 150, 114 Am. St. 912, 80 P. 217.)
Appellant commenced this action to quiet title to certain lands situate in Power county, Idaho. The complaint is in the usual simple form and does not set up the basis of appellant's claim of title. The answer asserts ownership in the defendants and denies ownership by appellant. At the trial appellant introduced documentary evidence establishing chain of title in him through deeds from L. L. Evans, L. L. Evans, Jr., and Evans Brothers Land & Livestock Co., a corporation, and redemptions made from execution sale, etc. Respondents rely upon purchase of the property in question through execution sales made prior to any deeds to appellant.
The cases involved were actions upon depository bonds, four of which have been before this court heretofore on appeal. (See Power County v. Evans Bros. Land & Livestock Co. et al., 43 Idaho 158, 252 P. 182; Power County v. Evans Bros. Land & Livestock Company et al., 43 Idaho 171, 252 P. 185; City of American Falls v. Evans Bros. Land & Livestock Company et al., 43 Idaho 171, 252 P. 185; Independent School District No. 1 v. Evans Bros. Land & Livestock Company et al., 43 Idaho 173, 252 P. 185.)
While this appeal was pending appellant brought an original proceeding in this court to prohibit the trial judge and clerk of the district court from certifying to us certain exhibits (part of the files in certain actions) which had theretofore been copied and certified by the court reporter under stipulation of counsel. (Evans v. District Court of Fifth Judicial District et al., 50 Idaho 60, 293 P 323.) It was there held that the question raised could properly be determined on this appeal and the writ was denied. Thereafter, appellant...
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