Gillette v. Oberholtzer

• Decision Date: 10 February 1928
• Docket Number: 4909
• Citation: 45 Idaho 571,264 P. 229
• Parties: ANDREW W. GILLETTE, ROBERT C. PRICE, MORRIS B. RATNER, FRED L. GREEN and ANDREW W. GILLETTE, as Trustee, Respondents, v. CLARENCE M. OBERHOLTZER and ELLEN D. OBERHOLTZER, Appellants
• Court: Idaho Supreme Court

264 P. 229

45 Idaho 571

ANDREW W. GILLETTE, ROBERT C. PRICE, MORRIS B. RATNER, FRED L. GREEN and ANDREW W. GILLETTE, as Trustee, Respondents, v. CLARENCE M. OBERHOLTZER and ELLEN D. OBERHOLTZER, Appellants

No. 4909

Supreme Court of Idaho

February 10, 1928

FORECLOSURE OF MORTGAGE - VALIDITY OF MORTGAGE - CANCELATION-CLAIM FOR TAXES PAID-LIEN-JUDGMENTS.

1. Claim for taxes paid on mortgaged land by holders of mortgage note and included as part of foreclosure suit does not necessarily fail when such suit fails because of invalidity or infirmity of mortgage.

2. Holders of note secured by mortgage, foreclosure of which was denied because of duress and want of consideration, of which only one of them was charged with notice, held properly granted a lien for taxes, paid after removal of duress under circumstances amounting to request by defendants, such payments inuring to latter's benefit.

3. Mortgagors, not appealing from, but accepting benefit of portion of decree granting cancelation of mortgage and note secured, must place holders of note secured in statu quo by paying amount of taxes paid on mortgaged land by them.

4. Grantor procuring cancelation of an instrument, even for duress or fraud, must place grantee in statu quo.

5. Portion of decree granting holders of note secured by mortgage, foreclosure of which was denied for duress and want of consideration, a lien on mortgaged premises for amount of taxes paid by them, held not erroneous because not within pleadings.

6. Equity obtaining jurisdiction of subject matter of dispute will retain it for settlement of all controversies between parties with respect thereto.

7. As all of several tracts of mortgaged land together constituted subject matter of foreclosure suit, it was not necessary to apportion lien granted plaintiffs for taxes paid to various tracts.

8. Assignment of error in granting nonsuit on cross-complaint for payments made to plaintiffs' predecessors, in suit to foreclose mortgage, need not be considered on appeal from portion of judgment granting plaintiffs a lien on mortgaged premises for amount of taxes paid by them.

9. Mortgagors encouraging payment of taxes by holders of note secured, after removal of duress because of which foreclosure was denied, held estopped to contend that plaintiffs were not equitably entitled to recover amount of such taxes because of payment of greater sums to plaintiffs' predecessors.

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

Action to foreclose mortgage. Judgment for plaintiffs. Affirmed.

Judgment affirmed, with costs to respondents.

S. T Lowe, for Appellants.

The judgment must conform to and be supported by the pleadings in the case. (Snoderly v. Bower, 30 Idaho 484, 166 P 265; Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581; Brown v. Hardin, 31 Idaho 112, 169 P. 293; Uhrlaub v. McMahon, 15 Idaho 346, 97 P. 784; Willis v. Willis, 33 Idaho 353, 194 P. 470; 33 C. J. 1139, sec. 87.)

When an action for the foreclosure of a mortgage fails by reason of the invalidity or infirmity of the mortgage, a claim for taxes paid upon the property included in the mortgage, as a part of the foreclosure suit, must fail, for a claim for taxes is merely incidental to the mortgage. (Jones on Mortgages, 6th ed., sec. 77; Hill v. Townley, 45 Minn. 167, 47 N.W. 653; Borden v. Clow, 21 Nev. 275, 37 Am. St. 511, 30 P. 821; Hitchcock v. Merrick, 18 Wis. 357, 360.)

C. W. Thomas, for Respondents.

The decree of an equitable lien for the amount of the taxes paid was within the issues and is supported by the pleadings; and this court must assume there was evidence before the trial court to warrant the findings made. (Keller v. McCarty, 38 Idaho 18, 219 P. 1063.)

Where instruments are declared invalid for duress, or want of consideration, the grantee is nevertheless entitled to be reimbursed for taxes paid by him. (2 Black on Rescission and Cancellation, sec. 637, p. 1469; Pleasants v. Henry, 36 Idaho 728, 213 P. 565; Oatman v. Hampton, 43 Idaho 675, 256 P. 529.)

BRINCK, Commissioner. Varian, and Ensign, CC., Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur. T. Bailey Lee, J., disqualified.

OPINION

BRINCK, Commissioner.--

In this action, brought by the holders of a note signed by the defendants, for the foreclosure of a mortgage securing such note, the mortgage consisting in form of deeds to real estate and a trust agreement, the defenses of duress and want of consideration, pleaded in the answer, were sustained by the findings of the trial court. The court found, however, that after the duress was removed, the defendant made certain payments upon the debt and wrote plaintiffs divers letters, assuring them of his determination to pay the note and discharge the trust agreement, and encouraged plaintiffs to pay the taxes upon the premises; and that, in reliance upon such assurances and promises, the plaintiffs paid certain taxes upon the land involved. Foreclosure of the mortgage was denied, but by the decree the plaintiffs were granted a lien upon the mortgaged premises for the amount of the taxes they had paid as aforesaid; and it was ordered that, unless this amount were paid plaintiffs within ninety days after the entry of the decree, the land should be sold for the payment thereof, and that upon payment to plaintiffs of said amount the instruments should be surrendered to the court for cancelation. This appeal is prosecuted by the defendants upon the judgment-roll and is only from that portion of the judgment granting plaintiffs a lien for the taxes paid by them.

Plaintiffs are the remote assignees of the original payee of the note the City Bank of Denver. The deeds were executed to one Gillette, as trustee, and the trust agreement was made with him as such trustee. Gillette, in his individual capacity, is one of the four present holders of the note and is the only one of the plaintiffs who is shown to have had knowledge of the duress or want of consideration. The original payee held the note until...