Hazard v. Cole

• Decision Date: 01 January 1869
• Citation: 1 Idaho 276
• Parties: O. S. Hazard, Plaintiff, v. Thomas Cole, Jr., Et Al., Defendants.
• Court: Idaho Supreme Court

1 Idaho 276

O. S. Hazard, Plaintiff, v. Thomas Cole, Jr., Et Al., Defendants.

Supreme Court of Idaho

January 1, 1869

FINDINGS-PRACTICE.-When no testimony is reported in a statement, from which this court can determine as to the propriety or impropriety of the findings of the court below, the presumption is that the testimony was, in every respect, sufficient to support the findings.

STATUTE OF FRAUDS-CHANGE OF POSSESSION.-The statute of frauds does not require personal property to be removed from the place where situated when sold. It does not in any sense refer to the place, but to the actual and continued change of possession.

RECORD MATTERS OF.-In respect to matters of record in which two parties are interested, they are within the knowledge of both and neither party has a right to rely upon the recollection of the other.

JUDGMENTS-IMPEACHMENT-FRAUD.-A judgment can only be impeached in equity for fraud in its concoction, and in no case for mere irregularity.

JUDGMENTS-GOLD COIN.-A judgment for gold coin is not in any event void because it is so rendered. It may be irregular, but is then subject to modification only, either in the same court on motion, or on appeal by this court.

SHERIFF'S SALE-VOIDABLE JUDGMENT.-A purchaser at a sheriff's sale under execution, upon a judgment which is voidable only acquires a good title.

WAIVER-ACQUIESCENCE-PRESUMPTION.-What has been done and long acquiesced in until the rights of third parties have grown up thereunder, should be presumed to have been rightly done.

SHERIFF'S SALE-PURCHASER AT SHERIFF'S SALE.-A purchaser under execution does not depend for his title upon the fact or the regularity of the sheriff making such sale.

BILLS OF EXCHANGE-DAMAGES.-The language of the statute concerning the damages to be allowed upon protested bills of exchange clearly imports that it was not the intention of the legislature to restrict such damages to bills drawn by one person or corporation elsewhere.

CERTIFICATE OF SALE-FILING-NOTICE.-The filing of a certificate of sale of real estate by the officer making the sale, and in the manner prescribed by statute, imparts to all the world constructive notice of the estate acquired by the purchaser under it, as well as the fact of sale and its legal consequences.

PRESUMPTION-JUDGMENT.-On motion for new trial, or on appeal, every intendment is in favor of the judgment or ruling of a court of record. The party complaining must show error affirmatively.

FINDINGS.-It is not a ground for a new trial that the findings were not filed until after the adjournment of the term of court.

CASE adjourned into the Supreme Court from the District Court of the Third Judicial District, Owyhee County.

Martin & Johnson and McBride & Henly, for the Plaintiff. Rosborough & Preston, Scaniker & Burmester, Frank Ganahl, F. E. Ensign and S. A. Merritt, for the Defendants.

BOWERS C. J.,

delivered the opinion of the court,

KELLY, J., concurring specially.

This action was commenced in the third judicial district court, on a bill filed, in which is alleged several distinct grounds of relief, concluding with a general prayer, that the court, by its judgment and decree, may give such relief "as the nature of the circumstances of this case may require." Upon the trial the court below dismissed the bill, and gave judgment for costs in favor of defendants. Motion for a new trial was made. Upon the hearing of the motion in the court below, upon suggestion of the judge, counsel for plaintiff and defendants in open court consenting, the cause was adjourned to this court, under and in accordance with the terms and provisions of section 326 of the Civil Practice Act, and the question is, Shall this court advise and direct that the judgment and decision of the court below rendered on the second day of July, A. D. 1868, be vacated and set aside, and a new trial ordered? The case was tried before Judge Cummins, and the facts found by the court were:

1. That on the eleventh day of September, 1866, the defendant, the Lincoln Silver Mining Company, by its assistant treasurer, C. F. Balcom, at Silver City, thereunto duly authorized, drew its bill or draft for ten thousand dollars on its treasurer in Providence, R. I., payable at the latter place to said defendant Cole, in United States gold coin, in consideration of advancements before that time made by said Cole to said company, at Silver City, in United States currency, which amounted to that sum at the rate of about seventy-two cents on the dollar; and Cole afterward, and before the nineteenth day of October, 1866, made further advancements to said company, in legal tender notes, amounting to the sum of one thousand three hundred and eight dollars and ninety-five cents, at the rate aforesaid, for which said

company agreed to pay Cole the said sum of one thousand three hundred and eight dollars and ninety-five cents, in gold coin; that said Cole caused said bill or draft to be presented to the treasurer of said company, in Providence aforesaid, for payment; the same was not paid, and was then and there protested for nonpayment; that said Cole afterward, and on the said nineteenth day of October, 1866, brought two actions against said company in the district court for said county, one on said draft and the other on said account, and caused the property of said company, consisting of a quartz-mill and certain personal property, to be attached in said suits, and on the thirtieth day of October, 1866, recovered judgments in his said actions, respectively for the sums of twelve thousand six hundred and thirty-eight dollars and eighty-seven cents, including interest and costs and twenty-five per cent damages on said draft or bill of exchange, and for one thousand three hundred and seventy-two dollars and twenty-five cents debt and costs, in both of which judgments was included a clause that they be paid and collected in United States gold coin.

2. That on the third day of September, 1866, said company was indebted to said plaintiff on account in the sum of seventeen thousand dollars for advancements before that time made by him to said company on like terms and rates as those by said Cole, and then agreed to make further advancements to said company to the amount of about three thousand three hundred dollars, for which he gave his due bill to said company, and then and there received from said company, through said Balcom, a promissory note of said company, dated third of September, 1866, for thirty thousand dollars, payable in legal tender notes at New York, on demand, to said Hazard, with interest at the rate of two per cent per month; that said Hazard afterward paid to said company the amount of said due bill, making the total of his advancements to said company twenty thousand three hundred dollars, which was the consideration for said note, and the difference was added in order to make up the difference between currency and gold coin at that time in New York City.

it being understood between the parties, as in the case of said Cole, that such advancements were made at gold coin rates; that afterward, and before the 19th of October, 1866, said plaintiff made further advancements to said company, amounting to about one thousand five hundred and eight dollars and ninety-four cents, on account; that said Hazard on the 19th of October, 1866, commenced his action in said court against said company for said indebtedness; caused attachments to be levied on the same and other property of said company subsequent to those of said Cole, and on the thirtieth day of October, 1866, recovered judgment thereon against said company for the sum of thirty-one thousand six hundred and twenty dollars, to be paid and collected in currency, and the further sum of one thousand five hundred and eight dollars and ninety-four cents, to be paid and collected in United States gold coin, and for a further sum of two hundred and ninety-one dollars costs.

3. That by agreement of the judgment creditors executions were stayed on said judgments for sixty days, by entry in the record, for the purpose of giving time to said company to pay up and resume their operations.

4. That said company failing to pay up and resume their operations, said Cole, on receiving notice of the intention of said company not to pay up and relieve their property and prosecute their business, on the 9th of March, 1867, caused executions to be issued on his said judgments to the sheriff of said county, who thereupon, on the 14th of March, 1867, sold the personal property of said company, so attached, as aforesaid, for a sum sufficient to satisfy the smaller of his said judgments and costs, and the further sum of two thousand one hundred and forty-two dollars and forty-seven cents, which was applied to the other and larger judgment, and on the sixth day of April, 1867, sold the mill premises and appurtenances of said company for the sum of eleven thousand four hundred and thirty-five dollars and fifty-four cents, in full satisfaction of the balance due on said larger judgment. That said Cole at said sales became the purchaser of said mill premises and most of said personal property. That said

mill premises consisted of a small amount of land in the vicinity of Silver City, with the mill, office, boarding-house, and other tenements pertaining to the establishment, all situate on the same lot; that said personal property (except a portion of the firewood designed for milling uses, which was one or two miles up the gulch from the mill, the balance which was the larger portion thereof, being stacked on the lot near the office and mill) was some of it in the mill, some of it in the office, some of it in the boarding-house, and a lot of lumber on said lot. The weather...