Gerkin v. Davidson Grocery Co.

• Decision Date: 24 April 1937
• Docket Number: 6351
• Citation: 57 Idaho 670,69 P.2d 122
• Parties: MABLE R. GERKIN, Wife of GLEN GERKEN, Respondent, v. DAVIDSON GROCERY COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

69 P.2d 122

57 Idaho 670

MABLE R. GERKIN, Wife of GLEN GERKEN, Respondent, v. DAVIDSON GROCERY COMPANY, a Corporation, Appellant

No. 6351

Supreme Court of Idaho

April 24, 1937

SUBROGATION-APPLICATION OF DOCTRINE-JUDGMENT-RELIEF GRANTED-RES JUDICATA-PLEADING-APPEAL.

1. Whether doctrine of subrogation is applicable to any particular case depends on peculiar facts and circumstances of such case.

2. Under disclosure that neither purchaser acquiring land from mortgagor nor purchaser's wife assumed or agreed to pay mortgages, that purchaser and wife satisfied second mortgage and paid $600 on first mortgage, that they paid taxes against property, that they made such payments for protection of community interest in property, that payments made by them inured to benefit of third mortgagee, that they never actually occupied or enjoyed property in any way or received any of rents therefrom, and that title to property had been decreed to third mortgagee, wife was entitled to benefit of doctrine of subgrogation for payments made.

3. Where, in quiet title action, parties stipulated that accounting should be had and court retained jurisdiction of matter of accounting, entry of decree for defendant did not preclude plaintiff from filing supplemental complaint asserting rights to accounting and to benefits of doctrine of subrogation, as against contention that party is barred by decree from asserting any title or interest which could have been asserted in quiet title action.

4. Complaint of purchaser's wife against third mortgagee decreed to have title in quiet title action, for accounting and for subrogation of payments made on first and second mortgages and taxes, held to state cause of action, as against contention that entry of decree in quiet title action bars party from asserting any title or interest which could have been asserted in that action.

5. Defense of res judicata must be pleaded in lower court, or it must appear either on face of record, or by extrinsic evidence, that precise question was raised and determined in former suit between same parties, by court of competent jurisdiction.

6. Defense of res judicata cannot be raised for first time on appeal.

APPEAL from the District Court of the Eleventh Judicial District for Jerome County. Hon. T. Bailey Lee, Judge.

Appeal from a decree in supplementary proceedings for an account. Affirmed in part and reversed in part.

Affirmed in part and reversed in part costs awarded to respondent. Petition for rehearing denied.

Fisher & Coffin for Appellant.

It is the duty of a party to an action to quiet title to real property to set forth every title or interest he has and after entry of the decree he is barred from asserting any title or interest which could have been asserted in that action. (Sec. 9-401, I. C. A.; Coleman v. Jaggers, 12 Idaho 125, 85 P. 894, 118 Am. St. 207; Carns v. Idaho-Iowa Lateral & Reservoir Co., 34 Idaho 330, 202 P. 1071; Burton v. Huma, 37 F. 738; Baker v. Leavitt, 54 Okla. 70, 153 P. 1099.)

Under the provisions of sec. 9-104, I. C. A., strict foreclosure of a mortgage is not allowed in this state, but in a case where the usual foreclosure has once been had, and the premises sold under the decree, but some judgment creditor, junior lienor, or person similarly situated, not having been made a party, has a right to redeem, the only appropriate procedure to cut off this right or equity of redemption is strict foreclosure. (2 Wiltsie on Mortgage Foreclosure, 4th ed., 1147, sec. 901; 42 C. J. 24; 3 Pomeroy's Equity, 4th ed. sec. 1227, footnote on p. 2948; Sellwood v. Gray, 11 Ore. 534, 5 P. 196; Koener v. Willamette Iron Works, 36 Ore. 90, 58 P. 863, 78 Am. St. 759.)

Bothwell & Povey for Respondent.

Respondent is entitled to be subrogated to the rights of the prior lienholders and therefore a money judgment for the aggregate amount of the liens paid is proper.

"A person not being a volunteer, but having an interest in property, pays off an encumbrance on the property in order to protect his interest is entitled to be subrogated to the rights and remedies of the person paid." (60 C. J., p. 786, sec. 97; Houghtelin v. Diehl, 47 Idaho 636, 277 P. 699; Camden v. Fink Coal & Coke Co., 106 W.Va. 312, 145 S.E. 575, 61 A. L. R. 584, annotation, p. 587; 60 C. J. 789, 790, secs. 99 and 101; 60 C. J. 791, sec. 104.)

The fact that appellant brought suit in the federal court to foreclose respondent's equity of redemption is not determinative of the questions involved in this proceeding. In that suit appellant did not seek to have the court determine the equities between the parties growing out of moneys paid by respondent to discharge prior liens. (Kelso v. Edward Rutledge Timber Co., 46 Idaho 497, 269 P. 94.)

"To make the matter res adjudicata, it is immaterial that the question alleged to have been settled by a former adjudication was determined in a different kind of proceeding or a different estoppel is claimed; the test being, Was the question actually and directly in issue and judicially determined in the former suit between the same parties or their privies by a court of competent jurisdiction?" (Hilton v. Stewart, 15 Idaho 150, 96 P. 579, 128 Am. St. 48.)

HOLDEN, J. Budge and Givens, JJ., concur. Morgan, C. J., dissents. Ailshie, J., did not participate in the consideration of this case.

OPINION

HOLDEN, J.

--Eugene G. Gauss and Lydia M. Gauss, husband and wife, were the owners of certain real property located in Jerome county, Idaho. August 25, 1919, the Gausses mortgaged that property to the Equitable Savings and Loan Association for $ 6,000. October 1, 1919, the Gausses again mortgaged the property to W. A. Heiss for $ 500. Both mortgages were recorded October 7, 1919. Later, June 4, 1923, the Gausses also mortgaged the property to appellant Davidson Grocery Company for $ 3,000.

February 25, 1925, the mortgagors conveyed the property by quitclaim deed to Glen Gerken, husband of respondent, the deed being recorded March 2, 1925. Neither Gerken nor respondent assumed or agreed to pay either or any of the above-mentioned mortgages.

August 19, 1925, Heiss, the second mortgagee, instituted foreclosure proceedings against the original mortgagors Eugene G. Gauss and Lydia M. Gauss, Davidson Grocery Company, and Augusta Clouchek, a subsequent judgment creditor. In that suit, neither Gerken nor his wife were made parties nor did either appear therein. Appellant Davidson Grocery Company, having been served with summons, defaulted. Decree of foreclosure was entered and on January 23, 1926, the property was sold by the sheriff at public auction to Glen Gerken for the sum of $ 798.29, being the whole amount due upon the judgment, including interest and costs. There was no redemption and subsequently the sheriff issued Gerken a deed to the premises which was recorded February 24, 1927.

February 26th following, appellant Davidson Grocery Company commenced a suit to foreclose its mortgage. The defendants joined were the Gausses, W. A. Heiss, Glen Gerken, H. W. Clouchek, and H. W. Clouchek, executor of the estate of Augusta Clouchek, deceased. Glen Gerken's wife, respondent here, was not joined as a party or served with summons nor did she appear personally or by attorney. Gerken defaulted and did not contest the Davidson Grocery Company foreclosure suit. Decree was entered, the property sold, and the premises bid in by appellant Davidson Grocery Company, to whom later was issued a sheriff's deed.

Thereafter, to wit, September 29, 1928, respondent Mable R. Gerken commenced suit against the Davidson Grocery Company, W. A. Heiss, H. W. Clouchek, Henry W. Clouchek, executor of the estate of Augusta Clouchek, and Fred H. Turner, to quiet her alleged title to the property covered by the above-mentioned mortgages and deeded to Glen Gerken, her husband, as aforesaid.

July 8, 1929, the Gerken suit to quiet title was tried. It was shown during the trial of the suit that Glen Gerken, out of community funds, had paid the sum of $ 798.29 in satisfaction of the said Heiss mortgage; that the Gerkens had not occupied the mortgaged property and had not received any of the rents of the property; that Gerken had paid the sum of $ 600 on the first mortgage given to the Equitable Savings and Loan Association; that Gerken had also paid taxes in the sum of $ 266.04; that appellant Davidson Grocery Company had collected between $ 1500 and $ 1600 in rents and that there were back rents then due; and that the Davidson Grocery Company had purchased the first mortgage and had taken an assignment thereof.

And it appears that during the trial of the Gerken suit to quiet title the following colloquy occurred between the trial court and counsel for the respective parties:

"Mr. COFFIN: It may become necessary to take an accounting of the various items, receipts and disbursements in this action. The necessity of that is remote. This is an action in which an accounting of the rents, profits and expenditures is unnecessary. I suggest that we let the accounting matter rest until the court has decided the questions of law. I think we can agree as to the amounts.

"The COURT: Your idea is that that is to be determined at a later date in the event a determination of that question becomes necessary?

"Mr COFFIN: Yes.

"Mr. FISHER: It could only be a partial accounting because there are rents accruing right now. We could only have a partial accounting at this date.

"Mr. BOTHWELL: I wish to offer in evidence the receipt for taxes paid.

"Mr. FISHER: We have no objection to that.

"Mr. COFFIN: Would it be agreeable to you to let the accounting question ride for the present? That in case it becomes necessary we will agree upon it?

"Mr BOTHWELL: As to the accounting...