Farrar v. Parrish

• Decision Date: 29 April 1926
• Citation: 245 P. 934,42 Idaho 451
• Court: Idaho Supreme Court
• Parties: MINNIE A. FARRAR, HENRY W. FARRAR and LYSLE D. FARRAR, Executors of the Estate of JONATHAN D. FARRAR, Deceased, Respondents, v. WM. W. PARRISH and PEARL E. PARRISH, His Wife, Appellants; E. F. WALTON and TWIN FALLS BANK & TRUST CO., a Corporation, Respondents

245 P. 934

42 Idaho 451

MINNIE A. FARRAR, HENRY W. FARRAR and LYSLE D. FARRAR, Executors of the Estate of JONATHAN D. FARRAR, Deceased, Respondents, v. WM. W. PARRISH and PEARL E. PARRISH, His Wife, Appellants;

E. F. WALTON and TWIN FALLS BANK & TRUST CO., a Corporation, Respondents

Supreme Court of Idaho

April 29, 1926

APPEAL AND ERROR - ASSIGNMENT OF ERROR NOT CONSIDERED - CONFLICTING EVIDENCE-PLEADING-MORTGAGES-CONTRACT TO TRANSFER REAL PROPERTY-PART PERFORMANCE OF VOIDABLE CONTRACT-CONSIDERATION-NOVATION-ESTOPPEL.

1. Assignment of error not discussed orally nor in brief and citing no authorities will not be considered on appeal.

2. Testimony of one witness as to cancelation and surrender of contract for sale of real estate is competent evidence to support trial court's finding, though contradicted by two witnesses.

3. Allegations of complaint, not denied, stand as admitted.

4. Where purchaser executed unacknowledged instrument purporting to transfer contract for purchase of land, later surrender of rights under contract, with agreement that subsequent purchaser might take deed direct from original vendor, was consideration for mortgage to assignee of original purchaser for balance due on agreement, as assuring title to subsequent purchaser on performance of contract.

5. Where purchaser of land transferred contract by unacknowledged instrument, validity of subsequent agreement by purchaser's successors in interest to surrender rights in consideration of subsequent purchaser executing mortgage for balance due cannot be questioned by subsequent purchaser after performance and receipt of deed on payment of purchase price.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action to foreclose mortgage. Decree of foreclosure. Affirmed.

Judgment affirmed. Costs to respondents.

Wolfe &amp Wilkins, for Appellants.

The Ohnewein-Parrish contract, exhibit "A," is void because it was not acknowledged and because the property therein described was the community property of the grantor and his wife. (Hughes v. Latour Creek Ry. Co., 30 Idaho 475, 166 P. 219; McKinney v. Merritt, 35 Idaho 600, 208 P. 244.)

The contract being void, because the other party is not bound, as long as this grantor is not bound the grantee is not bound. ( Childs v. Reed, 34 Idaho 450, 202 P. 685.)

The naked contract void upon its face is not a good consideration. (Glover v. Brown, 32 Idaho 426, 184 P. 649; Milner v. Pelham, 30 Idaho 594, 166 P. 574; Libby v. Pelham, 30 Idaho 614, 166 P. 575.)

The giving of the note and mortgage is not payment of the Ohnewein-Parrish contract unless and until the note is paid. (Leschen & Sons Rope Co. v. Mayflower Gold Min. &amp Reduction Co., 173 F. 855, 97 C. C. A. 465, 35 L. R. A., N. S., 1.)

Bothwell & Chapman, for Respondents.

Assignments of error, for which no propositions of law are stated, authorities cited or argument made in the brief, or reasons given why the ruling of the court was erroneous, will not be considered on appeal. (Gustin v. Byam, 41 Idaho 538, 240 P. 600; Bain v. Olsen, 39 Idaho 170, 226 P. 668.)

Where there is a substantial conflict in the evidence but sufficient competent evidence to support the finding of the trial court, the same will not be disturbed on appeal. ( Anglo-American Mill Co., Inc., v. Community Mill Co., 41 Idaho 561, 240 P. 446; Davis v. Idaho Minerals Co., 40 Idaho 64, 231 P. 712; Choate v. North Fork High. Dist., 39 Idaho 483, 228 P. 885; Pence v. Shivers, 40 Idaho 181, 232 P. 568; Syster v. Hazzard, 39 Idaho 580, 229 P. 1110; Bedal v. Smith, 36 Idaho 797, 214 P. 213; Viel v. Summers, 35 Idaho 182, 209 P. 454; Salisbury v. Spofford, 22 Idaho 393, 126 P. 400; Flynn Group Min. Co. v. Murphy, 18 Idaho 266, 109 P. 851.)

Allegations of complaint not denied stand admitted. (Bloomingdale v. Du Rell, 1 Idaho 33; Norris v. Glenn, 1 Idaho 590.)

Allegation of complaint not denied in the answer is sufficient to sustain a finding that the facts stated therein are true. ( Broadbent v. Brumback, 2 Idaho 366, 16 P. 555.)

Where a contract has been executed and performed a party receiving the benefits thereof is estopped to assert the invalidity of the contract by virtue of the manner of its execution in order to avoid paying for what he has received, even though the manner of its execution would have rendered the contract invalid and unenforceable while it remained executory. ( Karlson v. Hanson & Karlson Sawmill Co., 10 Idaho 361, 78 P. 1080.)

One who accepts a contract and receives its benefits must also accept and discharge its burdens, and one receiving such benefits and acting under the contract is estopped to question its validity. (Lane v. Pacific & Idaho Northern Ry. Co., 8 Idaho 230, 67 P. 656; Fremont County v. Warner, 7 Idaho 367, 63 P. 106; Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060; Runnels v. Lasswell (Mo. App.), 219 S.W. 980; Sherer-Gillett Co. v. Bennett, 153 La. 304, 95 So. 777; Massachusetts Bonding & Ins. Co. v. Vance, 74 Okla. 261, 180 P. 693; Busch-Everett Co. v. Vivian Oil Co., 128 La. 886, 55 So. 564; Green v. Lancaster County, 61 Neb. 473, 85 N.W. 439; Hobbs v. Nashville C. & St. L. Ry. Co., 122 Ala. 602, 82 Am. St. 103, 26 So. 139.)

Equity will not grant a purchaser the right to rescind if, after he has knowledge of the facts which entitle him to do so, he deals affirmatively with the subject of the contract in such a way as to recognize its validity. (Mulhall v. Lucas, 37 Idaho 558, 217 P. 266.)

GIVENS, J. Wm. E. Lee and Budge, JJ., concur.

OPINION

GIVENS, J.

November 26, 1918, John Crocker sold certain real property to Joseph Ohnewein and wife on an installment contract. September 24, 1919, Ohnewein and wife executed an instrument purporting to transfer this contract to W. W. Parrish and L. E. Wilson. According to this agreement Parrish and Wilson assumed the balance of $ 35,000 due Crocker and agreed to pay $ 23,000 to Ohnewein, who was to execute a deed to Parrish and Wilson upon receiving a deed to the premises from Crocker and upon the payment of the full purchase price. This contract was signed by all parties but was not acknowledged by any of them. Thereafter Ohnewein transferred his interest in this contract to Jonathan D. Farrar, father of respondents, who were executors of his will. Wilson and Parrish made payments on the contract in the amount of $ 15,000, but were unable to make payments of $ 3,000, due January 1, 1921, and $ 3,000, due January 1, 1922, and respondents insisting upon better security for the balance due, Parrish and wife, appellants, executed a mortgage to respondents in the sum of $ 8,323.09, the balance due Farrar as assignee of the Ohneweins' interest, and at this time it was agreed that respondents would surrender all claims under the Ohnewein-Parrish contract and that the transaction could be carried on by appellants direct with Crocker. In February, 1922, appellants entered into a contract with Crocker whereby appellants agreed to pay $ 35,000, due on the Ohnewein-Parrish contract and $ 660, covering certain unpaid taxes, to Crocker and upon payment of such sums Crocker agreed to execute a good and sufficient warranty deed to appellants. This action was brought to foreclose the mortgage given by appellants to respondents. The cause was tried to the court sitting without a jury and findings of fact and conclusions of law were made and judgment entered in favor of respondents, decreeing the foreclosure of their mortgage, from which judgment this appeal is prosecuted.

Appellants' first assignment is that the court erred, "In finding any sum as 'reasonable cost' of suit for examination of or research of records as in finding Number Nine." This assignment was not discussed orally or in the brief and no authorities are cited; it will therefore not be considered. (Nelson v. Johnson, 41 Idaho 703, 243 P. 649.)

Appellants attack the finding of the court that the contract between Ohnewein and Parrish was canceled and delivered up to Crocker by defendants, the argument in support of such contention being:

"There being a contradiction of testimony the defendant Parrish and his attorney testifying that there was no such delivery and one witness only for plaintiff testifying there was."

Though conflicting, there is competent evidence to support the finding of the trial court. (Anglo American Mill Co. v. Community Mill Co., 41 Idaho 561, 240 P. 446.)

Complaint is made...