Maxwell v. Twin Falls Canal Co., 5507

• Decision Date: 14 October 1930
• Docket Number: 5507
• Citation: 49 Idaho 806,292 P. 232
• Parties: H. L. MAXWELL et al., Respondents, v. TWIN FALLS CANAL COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

292 P. 232

49 Idaho 806

H. L. MAXWELL et al., Respondents, v. TWIN FALLS CANAL COMPANY, a Corporation, Appellant

No. 5507

Supreme Court of Idaho

October 14, 1930

APPEAL AND ERROR-CERTIFICATE AS TO PAPERS USED ON CONTESTED MOTION-COURT RULE-QUIETING TITLE-PLEADING-RELEVANCY - MOTION TO STRIKE-RECORDS-LIS PENDENS.

1. Rule requiring certificate showing papers used by judge at hearing on motion held inapplicable to appeals from judgment wherein intermediate orders excepted to may be reviewed (C. S., sec 7170; supreme court Rule 21).

2. Ruling on motion to strike from complaint is reviewable on appeal from judgment without certificate showing papers used at hearing (C. S., secs. 6879, 7170; supreme court Rule 21).

3. In complaint to remove lien as cloud on title, allegation that work was completed over five years before lien filed is fact not conclusion.

4. Plaintiffs alleging facts relating to claimed lien could charge that, as matter of law, lien was void, but casts cloud on plaintiffs' title.

5. Entire paragraph containing good and bad allegations cannot be stricken without separating good from bad.

6. Complaint to remove alleged equitable lien as cloud on title held not ambiguous for failure to allege when lien should have been filed.

7. "Instrument" entitled to be recorded does not include notice of claim by stranger to title (C. S., sec 5413).

8. Notice contemplated by recording statutes is notice to "subsequent purchasers or incumbrancers," who are those claiming title under same grantor (C. S., sec. 5413).

9. "Notice of claim" of equitable mortgage for drilling of wells held not instrument affecting title to or possession of realty, and could not be recorded as constructive notice of equitable mortgage (C. S., sec. 5413).

10. Court, in action to remove cloud on title, is not limited to canceling only authorized records casting real cloud on title.

11. One claiming right to equitable mortgage can be protected against subsequent purchasers or incumbrancers only by filing lis pendens on commencing action.

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

Action to remove cloud upon title to real estate. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs to respondents.

James R. Bothwell, for Appellant.

Averments in a pleading that certain demands are not lawful, are illegal, or that proceedings were unauthorized, without force or effect, illegal, void or that an act was not done within the time nor in the manner required by law, are mere legal conclusions, and are not admitted by failure to deny them. Benson v. Pedro, 6 Alaska, 1; Almirall & Co. v. McClement, 207 A.D. 320, 202 N.Y.S. 139; judgment affirmed, 239 N.Y. 630, 147 N.E. 225; Cousins v. Wilson, 94 Okla. 9, 220 P. 923; Witherow v. Board of Drainage Commrs. of Powder Springs Creek D. Dist., 155 Ga. 176, 117 S.E. 329; Luckehe v. Reclamation Dist., 73 Cal.App. 361, 238 P. 760.)

Every express executory agreement in writing or in parol, whereby the contracting party indicates an intention to make particular property, real or personal, therein described or identified, a security for a debt or obligation, creates an equitable lien upon the property so indicated which is enforceable. (1 Jones on Mortgages, 8th ed., sec. 226, p. 264; 1 Jones on Mortgages, 8th ed., sec. 227, p. 267; Great Northern State Bank v. Ryan, 292 F. 10; Higgins v. Manson, 126 Cal. 467, 77 Am. St. 192, 58 P. 907; 41 C. J. 300, par. 47.)

Any instrument, duly acknowledged, affecting the title to or possession of real property may be recorded. (C. S., secs. 5413, 5417, as amended 1923 Sess. Laws, chap. 144, p. 210; In re Buchner, 202 F. 979; State v. Register of Conveyances, 139 La. 478, 71 So. 773.)

Harry Benoit, for Respondents.

Appellant assigns as error the order of the court in overruling and denying its motion to strike paragraph 8 of the complaint. The reasons therefor, as set out in the motion, are "that the same constitutes sham and redundant matter; also, that the same contains conclusions of law and not statements of fact."

The motion seeks to strike all of paragraph 8, without specifying what parts thereof are sham, redundant and conclusions of law, and if any allegation in that paragraph is not sham, redundant and conclusions of law, the lower court properly overruled and denied the motion. (Valley Lumber Co. v. McGilvery, 16 Idaho 338-363, 101 P. 94; Swanson v. Groat, 12 Idaho 148, 85 P. 384.)

The motion to strike part of the complaint is not a part of the judgment-roll (Swanson v. Groat, supra), and the transcript having failed to contain the proper certificate (Farm Credit Corp. v. Mulliner, 48 Idaho 306, 281 P. 1113,and Brooks v. Lewiston Business College, 48 Idaho 71, 282 P. 378), respondents' motion to strike that part of the transcript relating to appellant's motion to strike paragraph 8 of the complaint should be sustained.

In the case of Harris v. Reed, 21 Idaho 364, 121 P. 780, this court said: "The recording of an instrument which is not entitled under the statute to be recorded cannot impart constructive notice to anyone."

MCNAUGHTON, J. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

Plaintiffs seek to remove a cloud upon their title to lands set forth in the complaint. The alleged cloud is a document executed by the defendant, appellant here, and acknowledged by it. It is in the nature of a claim or what is termed an equitable lien.

Appellant company attacked the pleadings and moved to strike the whole of paragraph 8 of the complaint. It assigns as error the court's order refusing to do so.

The complaint, after setting forth the corporate existence of the defendant Twin Falls Canal Company, and the corporate existence of certain of the plaintiffs, then sets forth that on September 13, 1926, the defendant filed with the county recorder of the county in which plaintiffs' land is situate a purported claim of equitable lien and caused the same to be recorded in book 8 of Mechanics' Liens, at page 162. The paper filed gives notice of a claim of an equitable lien upon the lands involved. A copy of this document is attached to and made a part of the complaint, marked Exhibit "A." Paragraph 8 of the complaint sets forth that it purports to be for drilling wells, but fails to state when the work was commenced and completed, and alleges that said work was performed and completed more than five years prior to the said filing, and charges that said lien was not filed in the time provided by law and that foreclosure proceedings were not commenced within the time provided by law; that the said pretended lien is void, null and of no effect, and is at this time a cloud upon the title to the said land owned by plaintiffs, to their detriment and damage.

Before taking up this assignment we must dispose of a motion by plaintiffs, respondents here, to strike that part of the transcript on appeal relating to appellant's motion to strike from the complaint. This motion of respondents is put upon the ground that the transcript is not accompanied by a certificate showing the papers used by the judge at the hearing on the motion claimed to be required by Rule 21 of this court. The record brings up the motion and the complaint. This court has held Rule 21 does not apply to appeals from the judgment wherein, pursuant to C. S., sec. 7170, intermediate orders, the rulings on which are deemed excepted to, may be reviewed in this court. The ruling of a trial court on a motion to strike from the complaint is such an order. (C. S., sec. 6879; Steinour v. Oakley State Bank (on rehearing), 32 Idaho 91, 177 P. 843.) The motion is denied. Diminution of the record to bring up such certificate is deemed unnecessary.

Before passing this point, we may say Rule 21 was adopted and construed in Swanson v. Groat, 12 Idaho 148, 85 P. 384, prior to the enactment of C. S., sec. 6879, and the decision of this court in Steinour v. Oakley State Bank, supra, was later. Under the later decision, pursuant to statutory amendments, it is held Rule 21 does not apply where upon appeal from the judgments intermediate orders not appealable may be reviewed upon transcript of the files and proceedings as provided by C. S., secs. 6886 and 7166, in lien of bill of exceptions and statement.

We think there was no error in refusing to strike paragraph 8, because, while parts of this paragraph of the complaint challenged by defendant are conclusions of law which might be deemed non essential and objectionable, the allegation that said work was commenced and completed more than five years before the purported lien was filed is an allegation of a fact. It is in no sense a conclusion of law. After setting forth the purported claim of lien and the facts in relation to it, and the fact of its being recorded, this being an equity action, it was permissible for plaintiffs to charge that as a matter of law it is void, null and of no effect, but nevertheless casts a cloud upon plaintiffs' title to said lands.

A motion to strike a whole paragraph in the complaint, which contains some good and proper allegations and some bad, without separating the good from the bad, should be overruled. (Valley Lumber Co. v. McGilvery, 16 Idaho 338, 101 P. 94.)

It is next claimed the complaint is ambiguous because it cannot be determined therefrom as to when plaintiffs claim the lien should have been filed, or wherein it is void, null and of no effect. Plaintiffs are not concerned with setting up a state of facts which might have resulted in a good lien. Their failure to do so did not render the facts set forth in their complaint uncertain, nor their charge as to the legal effect of the facts pleaded,...