Ewald v. Hufton

• Decision Date: 27 March 1918
• Citation: 173 P. 247,31 Idaho 373
• Parties: JOHN EWALD, Respondent, v. W. W. HUFTON, HESTER B. HUFTON, W. W. HUFTON, Administrator of the Estate of IDA HUFTON, Deceased, GRATTA LOUISE HUFTON, IDA HUFTON and ADA COUNTY, IDAHO, Appellants
• Court: Idaho Supreme Court

173 P. 247

31 Idaho 373

JOHN EWALD, Respondent, v. W. W. HUFTON, HESTER B. HUFTON, W. W. HUFTON, Administrator of the Estate of IDA HUFTON, Deceased, GRATTA LOUISE HUFTON, IDA HUFTON and ADA COUNTY, IDAHO, Appellants

Supreme Court of Idaho

March 27, 1918

MORTGAGES-COMMUNITY PROPERTY-NATURE OF ESTATE IN-DESCENT OF-BONA FIDE PURCHASER.

1. In case of the death of either husband or wife, intestate, his or her half of the community property shall descend equally to the legitimate issue of his, her or their bodies, under Rev. Codes, sec. 5713, prior to amendment.

2. Under the laws of this state no distinction is made between husband and wife as to the degree, quantity, nature or extent of the interest each has in the community property.

3. Upon the dissolution of the community by the death of either spouse, the survivor became a tenant in common with the heirs of the deceased member in the community property then in existence.

4. Prior to the amendment of Rev. Codes, sec. 5713, where either the husband or wife died intestate, leaving legitimate issue a mortgage given upon the community property by the survivor is a nullity in so far as it attempts to create a lien upon the interests of the children.

5. The defense of bona fides can be maintained only in favor of a title, though it may be defective, which a bona fide purchaser has, and it is not available for the purpose of creating a title.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.

Action to foreclose mortgage. Judgment for plaintiff. Reversed.

Judgment affirmed as against W. W. Hufton, Hester B. Hufton and their interests in the property, and reversed as it affects the interests of Gratta Louise Hufton and Ida Hufton the heirs of, and W. W. Hufton, as administrator of the estate of Ida Hufton, deceased. Costs awarded to appellants.

J. C Johnston and J. J. McCue, for Appellants.

There being no community debts against the community property at the death of the wife, her one-half of the community property descends absolutely unencumbered to the heirs of their body under sec. 5713, Rev. Codes, before amendment, and the husband has no longer any control over the estate and property descended to the minor heirs of their body at the time of the death of the wife, because any trust that the surviving spouse had of their estate was to administer the estate to the end of paying community debts, and the law being fulfilled in that regard, and no duty further to perform, the trust estate, if indeed he ever had or held any passed out of him, and the estate of the minor heirs vested absolutely in them and rested in them and not in the surviving spouse. (Broad v. Broad, 40 Cal. 493, 496; Veramendi v. Hutchins, 48 Tex. 531; Freeman on Cotenancy, 2d ed., sec. 149; Johnson v. Harrison, 48 Tex. 257; Wilson v. Helms, 59 Tex. 680; Johnson v. Harrison, 48 Tex. 267; Bell v. Schwarz, 56 Tex. 353; Clark v. Nolan, 38 Tex. 416; Newman v. Cooper, 46 La. Ann. 1485, 16 So. 481; Bossier v. Herwig, 112 La. 539, 36 So. 557; Walker v. Kimbrough, 23 La. Ann. 637; Le Bleu v. North American Land & Timber Co., 46 La. Ann. 1465, 16 So. 501; Johnston v. San Francisco Sav. Union, 75 Cal. 134, 7 Am. St. 129, 16 P. 753; Wortman v. Vorhies, 14 Wash. 152, 44 P. 129; Warburton v. White, 18 Wash. 511, 52 P. 233, 532; Bank of Montreal v. Buchanan, 32 Wash. 480, 73 P. 482; Bjmerland v. Eley, 15 Wash. 101, 45 P. 730.)

The estate of the deceased wife vested in the children instanter at the death of the wife, and the survivor and the heirs then held as tenants in common. (Clark v. Nolan, 38 Tex. 416; McAliester v. Farley, Jury & Co., 39 Tex. 553; Schlarb v. Castaing, 50 Wash. 331, 97 P. 289; Broad v. Murray, 44 Cal. 228; Johnston v. Bush, 49 Cal. 198; 17 Am. & Eng. Enc. Law, 2d ed., 661; McDougal v. Bradford, 80 Tex. 558, 16 S.W. 619; Powell v. Powell, 22 Idaho 531, 126 P. 1058, 1 Washburn on Real Property, 6th ed., p. 538, secs. 875, 876, Coe v. Sloan, 16 Idaho 49, 100 P. 354.)

C. Homer Lingenfelter, for Respondent.

A bona fide purchaser and a bona fide mortgagee stand in precisely the same position in regard to secret claims, legal or equitable, both being regarded as purchasers of the legal title. (27 Cyc. 1183; 2 Jones on Mortgages, 7th ed., sec. 710, p. 86.)

Not only is a bona fide mortgagee regarded as a purchaser of the legal title at common law and in those American states accepting the modern English theory of a mortgage, but it is also so regarded in the so-called "lien theory states" with which our own state under the decisions of Brown v. Bryan, 6 Idaho 1, 51 P. 995, and Hannah v. Vensel, 19 Idaho 796, 116 P. 115, might be considered as included. (1 Jones on Mortgages, 7th ed., sec. 14, pp. 18, 19, and authorities cited; Fair v Howard, 6 Nev. 304; Herff v. Griggs, 121 Ind. 471, 23 N.E. 279.)

A bona fide mortgagee is entitled, under our theory of the instrument under which he claims, to the same protection as is accorded a bona fide purchaser. The plaintiff is then entitled to protection under the rule in Von Rosenberg v. Perrault, 5 Idaho 719, 51 P. 774.

Even if the relationship be considered as a tenancy in common, the plaintiff is entitled to protection. (Johnston v. San Francisco Savings Union, 63 Cal. 554; Patty v. Middleton, 82 Tex. 586, 17 S.W. 909.)

"The policy of our laws is to protect purchasers against secret titles, whether they be legal or equitable." ( Edwards v. Brown, 68 Tex. 329, 4 S.W. 380, 5 S.W. 87; Hensley v. Lewis, 82 Tex. 595, 17 S.W. 913; Saunders v. Isbell, 5 Tex. Civ. 513, 24 S.W. 307; Smitheal v. Smith, 10 Tex. Civ. 446, 31 S.W. 422; Hill v. Moore, 62 Tex. 610; Lyster v. Leighton, 36 Tex. Civ. 62, 81 S.W. 1033; Mitchell v. Schofield (Tex. Civ.), 140 S.W. 254; Woodburn v. Texas Town Lot & Imp. Co. (Tex. Civ.), 153 S.W. 365; Schwabacher Bros. & Co. v. Van Reypen, 6 Wash. 154, 32 P. 1061; Daly v. Rizzutto, 59 Wash. 62, 109 P. 276, 29 L. R. A., N. S., 467.)

The community is a sort of quasi partnership. A partner of a legal partnership in whose name the partnership property does not appear of record, and of whose claim there is no notice, has, after dissolution, no right, legal or equitable, to complain of a misapplication of this partnership property as against a bona fide purchaser from the partner who has the apparent record legal title and ostensible power of disposition over the property. The heirs of such defrauded partner could stand in no better position than he himself, either at law or in equity. The heirs' rights are solely against the defaulting partner. (Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544, 39 L. R. A., N. S., 1107.)

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

OPINION

RICE, J.

This is an action to foreclose a mortgage upon certain real estate in Ada county. It appears that the property was community property of appellant W. W. Hufton and his wife, Ida Hufton; that Ida Hufton died on September 16, 1909, and left as her heirs the appellants, Gratta Louise Hufton, who at the time of her mother's death was at the age of four years, and Ida Hufton, who was born at the time of her mother's death. Appellant married his second wife, Hester B., April 12, 1911. On April 10, 1912, appellant and his wife, Hester, executed the mortgage involved in this action. On March 23, 1914, appellant was appointed administrator of the estate of Ida Hufton, deceased, and duly qualified as such and settlement of the estate was still pending at the time of the trial of this action in the district court. It further appeared that at the time of the death of Ida Hufton there were no mortgages or liens, nor any debts or claims against the community property. The mortgage was executed by the mortgagor as his personal and private business, and not for the payment of any charge or debt against the community property.

The respondent claims that he is a bona fide mortgagee for a valuable consideration, in good faith and without notice. The appellants contend that the mortgage is valid only to the extent of the husband's interest in the property, which at the time the mortgage was given was one-half thereof.

In order to determine the questions presented on this appeal, it is necessary to ascertain the nature of the estate of the husband and wife in community real estate.

In the state of Texas, by a long line of authorities it is held that when land is conveyed to the husband, no beneficial interest of the wife therein appearing upon the face of the deed, her interest in the same by virtue of the marital community relationship, is equitable, the entire legal title being vested in the husband, and upon her death her heirs succeed to no such legal title or interest in the land as would defeat the rights of an innocent bona fide purchaser for value from the husband. (Woodburn v. Texas Town Lot & Improvement Co. (Tex. Civ.), 153 S.W. 365,--in which many Texas cases are cited in support of the doctrine.)

This doctrine seems to have been clearly stated for the first time in Texas in the case of Edwards and Wife v. Brown, 68 Tex. 329, 4 S.W. 380, 5 S.W. 87. In the opinion on motion for rehearing in that case, at p. 334, the court called attention to an act passed by the legislature of that state on February 5, 1840 (Laws of Republic 1840, p. 153), directing the mode by which land should be conveyed in that state, and the effect of which was to place the legal title of all property conveyed according to its provisions in the grantee named in the conveyance.

In none of the Idaho cases which have come to our attention has the Texas doctrine been enunciated. The reasoning in the case of Jacobson v. Bunker Hill etc. Min. etc. Co., 3 Idaho 126, 28 P. 396, and Coe v. Sloan, 16 Idaho 49, 100 P. 354,...