Johansen v. Looney

• Decision Date: 10 February 1917
• Citation: 30 Idaho 123,163 P. 303
• Parties: THORAL JOHANSEN, Appellant, v. EUGENE LOONEY and JAMES H. OAKES, Respondents
• Court: Idaho Supreme Court

163 P. 303

30 Idaho 123

THORAL JOHANSEN, Appellant, v. EUGENE LOONEY and JAMES H. OAKES, Respondents

Supreme Court of Idaho

February 10, 1917

BASIS OF DISTINCTION BETWEEN LAW AND EQUITY ACTIONS-PLEADINGS-DEED INTENDED AS MORTGAGE-INNOCENT PURCHASER FROM MORTGAGEE-RIGHT TO TRIAL BY JURY-WAIVER OF JURY TRIAL.

1. In determining whether the nature of an action is legal or equitable the court must take into consideration the averments of plaintiff's petition or complaint and the body and substance of the ultimate relief sought.

2. Where plaintiff alleges that a deed, absolute in form, was in fact intended as a mortgage since it was given as security for a debt, and sues for an amount of money equal to the difference between his actual indebtedness to the grantee and the greater amount received by the grantee upon sale of the property to a third party, although in order to entitle him to recover this surplus he must show the conveyance to have been in fact a mortgage instead of a deed, such proof is only incidental to the real and ultimate issue presented, which is whether plaintiff is entitled to recover a money judgment.

3. The apparent purport of a written instrument may be varied by parol evidence when such instrument is vague or indefinite in its terms, or the terms contain a meaning which is not properly expressed but which was intended by the parties to be a part of the contract or transaction and binding upon them.

4. Where plaintiff alleges that an instrument purporting to be a deed was in fact a mortgage, and seeks to recover from the grantee the difference between his indebtedness and the amount received by the grantee on sale of the property to a third party, and joins such third party with the grantee as a defendant, in order to affect such third party with notice of the grantee's real interest in the property under such deed, it must be shown that such third party purchased with actual or constructive notice of the fact that the first deed was in fact a mortgage, given for the purpose of securing an indebtedness, and unless this is clearly shown, either by parol evidence or by attendant circumstances, the validity of the deed given by the grantee to such third party cannot be attacked.

5. Held, that the allegations and prayer of plaintiff's complaint in this case show him to be entitled to a trial by jury, under sec. 7, art. 1, of the constitution, and secs 4368 and 4369, Rev. Codes, which right cannot be denied him in the absence of a waiver.

6. Held, that the acts and conduct of plaintiff in this case, as shown by the record, do not constitute a waiver of a jury trial.

[As to parol evidence supplementing deed by proof a collateral oral agreement, see note in Ann.Cas. 1914A, 455]

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

Action in assumpsit for money had and received. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded, with instructions. Costs awarded to appellant.

S. L Tipton and J. B. Eldridge, for Appellant.

The guaranty that "the right to trial by jury should remain inviolate" has no reference to equitable cases. (Christensen v. Hollingsworth, 6 Idaho 87, 96 Am St. 256, 53 P. 211.)

The right to a jury trail may be waived by any conduct or acquiescence inconsistent with the intention or expectation to insist upon it. (24 Cyc. 154; MacKellar v. Rogers, 109 N.Y. 468, 17 N.E. 350; Boyd v. Boyd, 12 Misc. 119, 33 N.Y.S. 74 (affirmed, 146 N.Y. 403, 42 N.E. 542); Keystone D. Co. v. Worth, 117 N.C. 515, 23 S.E. 427; People v. Firth, 88 Misc. 217, 151 N.Y.S. 705.)

The noticing the case for trial after the jury has been discharged will have the effect of waiving trial by jury. (Cole v. Terrell, 71 Tex. 549, 9 S.W. 668; Blankenship v. Parsons, 113 Ala. 275, 21 So. 71.)

The statutory method of waiving a jury trial is not exclusive. (Lindstrom v. Hope Lumber Co., 12 Idaho 715 (721), 88 P. 92; Schumacher v. Crane-Churchill Co., 66 Neb. 440, 92 N.W. 609; Keystone Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427.)

B. S. Crow and Wyman & Wyman, for Respondents.

The law is well settled that assumpist is an action at law. (Kreutz v. Livingston, 15 Cal. 344, 345.)

A jury trial was had in the following cases for money had and received: Minor v. Baldridge, 123 Cal. 187, 55 P. 783; Lutz v. Rothschild, 4 Cal. Unrep. 888, 38 P. 360; Donovan v. Purtell, 216 Ill. 629, 75 N.E. 334, 1 L.R.A., N. S., 176; Peterson v. Foss, 12 Ore. 81, 6 P. 397.

"It is no objection to the maintenance of this action that equitable principles are to some extent to be applied and that the money sought to be recovered is impressed with a trust, in the hands of the holder." (Merino v. Munoz, 99 A.D. 201, 90 N.Y.S. 985.)

Where the mortgagee or the party having a deed for the premises as security for the debt sells the same, the action for money had and received is the remedy. (Lander v. Castro, 43 Cal. 497; Scranton v. Begol, 60 Cal. 642.)

This being an action at law, the plaintiff was entitled to a trial by a jury.

"Under the provisions of the constitution of Idaho the right to trial by jury is never to be denied even though an accounting is involved." (Russell v. Alt, 12 Idaho 789, 88 P. 416, 13 L. R. A., N. S., 146; Lindstrom v. Hope Lumber Co., 12 Idaho 714, 88 P. 92; Robertson v. Moore, 10 Idaho 115, 77 P. 218; Dittemore v. Cable Milling Co., 16 Idaho 298, 133 Am. St. 98, 101 P. 593; Davidson Grocery Co. v. Johnston, 24 Idaho 336, Ann. Cas. 1915C, 1129, 133 P. 929.)

BUDGE, C. J. Rice, J., concurs, MORGAN, J., concurring in part and dissenting in part.

OPINION

BUDGE, C. J.

In 1905 appellant procured from respondent $ 6,500, for which he executed and delivered a warranty deed, conveying certain real estate, and a bill of sale of certain personal property. The money thus procured was to be repaid according to stipulated terms. The appellant, however, failed to make the payments as agreed, and in 1907 another arrangement was made, whereby appellant executed and delivered to respondent, Looney, a quitclaim deed to said real estate, and the latter surrendered all claim or ownership in and to the personal property, after satisfying a certain chattel mortgage of $ 400 then due on said personal property. Thereafter respondent, Oakes, having purchased a one-half interest in the real estate described in the deed from the appellant to Looney, the whole was sold and conveyed to E. H. Dewey. Appellant alleges that the real estate thus conveyed was rightfully his and had been conveyed to Looney only as security for the money borrowed, and that he should be permitted to recover the sales price received by respondents, less the amount of the appellant's indebtedness to Looney.

While admitting that these deeds are absolute in form, the appellant asserts that it was the intention of the parties at the time of the transactions that they should serve as mortgages only. Although counsel presented the case upon the theory that the deeds given by appellant to respondent, Looney, were in fact mortgages, it appears that the complaint seeks to set out facts from which, if true, a constructive trust would arise in favor of the plaintiff. Under this theory, however, the result would be the same. But since the respondents have conveyed said property to E. H. Dewey, conceded for the purposes of this action to be an innocent purchaser, appellant is not seeking to set aside the deed from the respondents to said E. H. Dewey, but seeks to have the deed declared a mortgage as between himself and Looney in order to hold the respondents liable for the difference between the amount alleged to have been received by the sale to Dewey and the appellant's indebtedness to Looney. Upon this theory he instituted an action in the district court in and for Ada county, which was in form a common-law action of assumpsit for money had and received, to which a demurrer was interposed and sustained. Thereafter an amended complaint was filed, to which respondents filed an answer. The cause coming on for trial, appellant requested a jury trial, but the trial court, being of the opinion that the issues involved were equitable and that the action was one in equity and not at law, denied the request of appellant, who thereupon refused to proceed further with the trial of the cause, and the cause was thereupon dismissed.

This is an appeal from the judgment of dismissal, the appellant specifying as error the action of the trial court in denying his request for a jury trial, and insisting that this is an action at law, since the only relief that he can obtain under the pleadings is a money judgment. While, upon the other hand, the respondent contends that the latter deed, conveying the real estate, is an absolute conveyance, intended as such, and was given for the express purpose of extinguishing whatever title appellant may have had in and to the real property conveyed.

The important question raised in this case, therefore, is: Is this an action at law or a suit in equity? If the former, clearly the appellant was entitled to a jury trial and the judgment of the trial court should be reversed. It would be difficult and perhaps impossible in all cases to determine from the pleadings alone what should be deemed a suit in equity as distinguished from an action at law.

In this case one of the important facts to be decided is whether the second deed, given by appellant to Looney, was a deed absolute, and vested the title to the real estate therein described in fee simple in Looney, as it purported to do upon its face, or whether it was in truth and in fact a mortgage intended as such and given for the purpose of securing an indebtedness, the equitable title to remain in...