McCornick v. Brown

• Decision Date: 31 May 1912
• Citation: 22 Idaho 52,125 P. 197
• Parties: W. S. MCCORNICK, Respondent, v. FRED BROWN, Administrator of the Estate of M. SHAUGHNESSY et al., Appellants
• Court: Idaho Supreme Court

125 P. 197

22 Idaho 52

W. S. MCCORNICK, Respondent, v. FRED BROWN, Administrator of the Estate of M. SHAUGHNESSY et al., Appellants

Supreme Court of Idaho

May 31, 1912

FORECLOSURE OF MORTGAGE-SUFFICIENCY OF COMPLAINT-EXECUTION OF MORTGAGE-FINDINGS AND JUDGMENT.

(Syllabus by the court.)

1. A complaint which alleges that M. S. executed and delivered to W. S. McC. four promissory notes personally, and thereafter that a mortgage upon certain mining claims was executed and delivered by M. S. personally, and by W. D. S. and P. S. S and E. B. S. Van H., for the purpose of securing such several notes executed and delivered by M. S., and that such notes have not been paid and the amount is due, states a cause of action against M. S. personally and W. D. S., P. S. S. and E B. S. Van H. for the foreclosure of such mortgage.

2. In an action to foreclose a mortgage given to secure notes executed by M. S., where such mortgage is executed by M. S W. D. S., P. S. S. and E. B. S. Van H., and describes certain mining claims, and a decree of foreclosure is made by the trial court, the decree should be personally against M. S and for a foreclosure of all right, title and personal interest of M. S., W. D. S., P. S. S. and E. B. S. Van H., in and to the property described in the mortgage.

3. Where an action is brought to foreclose a mortgage against several parties and the complaint alleges that the mortgage was executed by such persons and the answer denies such execution, and it appears from the proof that such execution was by power of attorney, and the court makes a finding that the defendants did execute such mortgage, such finding is sufficient upon the issues made by the pleadings, and it was not reversible error on the part of the court in failing to find whether the attorney in fact was duly authorized to sign the mortgage as such attorney in fact. The finding of the ultimate fact in issue in the case, to wit, that the defendants executed the mortgage, was sufficient under the issues made by the pleadings.

APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.

An action to foreclose a mortgage. Judgment modified.

Judgment modified. Costs awarded to appellants.

Lynne F. Clinton, for Appellants.

A cause of action against an executor or administrator in his official capacity cannot be joined with a cause of action upon which he is personally liable. (Christian v. Morris, 50 Ala. 585; McDaniel v. Parks, 19 Ark. 671; Schlicker v. Hemenway, 110 Cal. 579, 52 Am. St. 116, 42 P. 1063; Flinn v. Gouley, 139 Cal. 623, 73 P. 542; Sterrett v. Barker, 119 Cal. 492, 51 P. 695.)

There must be a finding upon every material issue whether raised by the complaint or upon an affirmative defense alleged in the answer. (Wood v. Broderson, 12 Idaho 190, 85 P. 490; 2 Spelling, App. Practice, sec. 591; Uhrlaub v. McMahon, 15 Idaho 346, 97 P. 784.)

Pierce, Critchlow & Barrette, and Sullivan & Sullivan, for Respondent.

This is not an action to quiet title, but to foreclose a mortgage. We must not be compelled to litigate the claims of the heirs of Eudora Shaughnessy in this action. (Wiltsie, Mortgage Foreclosure, p. 502.)

Plaintiff alleged that certain persons, whose names appeared in a mortgage as mortgagors, executed that mortgage. Plaintiff did not allege that they executed the mortgage with a pen, or by making their mark, or by employing someone else to write their names, or by the agency of an attorney in fact. Any such allegation would have been superfluous, and the manner of execution, in so far as it might be material at all, was a matter of evidence to be adduced in the proof of the ultimate fact of the execution of the mortgage by the mortgagors. (31 Cyc. 1625.)

The court found that the defendants executed the mortgage at the time, for the purpose and in the manner alleged in the complaint. This was a finding of the ultimate fact in issue. (Later v. Haywood, 14 Idaho 45, 93 P. 374; Adams v. Crawford, 116 Cal. 495, 48 P. 488; 38 Cyc. 1966; Moneta Canning & Preserving Co. v. Martin (Cal.), 88 P. 369.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This action was commenced in the district court of the fourth judicial district in and for Blaine county by W. S. McCornick, doing business as W. S. McCornick & Co., against M. Shaughnessy personally, and as executor and trustee under the will of Eudora Shaughnessy, deceased, Philip S. Shaughnessy, Walter D. Shaughnessy and Eudora B. Shaughnessy Van Horn, for the foreclosure of a mortgage upon a group of mining claims consisting of the Monarch Lode, Lot No. 37, Bay State Lode, Lot No. 38, Bon Ton Lode, Lot No. 39, and Mountain Boy Lode, Lot No. 40, in the county of Blaine.

The complaint alleges that the defendant, M. Shaughnessy, is indebted to the plaintiff upon four certain promissory notes executed by M. Shaughnessy to plaintiff as follows: One promissory note dated January 2, 1906, for the sum of $ 2,623; one promissory note dated April 2, 1906, for the sum of $ 250; one promissory note dated February 8, 1907, for the sum of $ 250; and one promissory note dated April 12, 1907, for the sum of $ 250.

It is also alleged that on the 8th day of February, 1907, the defendant, M. Shaughnessy, personally and as executor and trustee under the will of Eudora Shaughnessy, deceased, Walter D. Shaughnessy, Philip S. Shaughnessy and Eudora B. Shaughnessy Van Horn, for the purpose of securing the payment of the several notes so given, made, executed and delivered to the plaintiff a certain deed of conveyance in the nature of a mortgage upon the property described in the complaint. This mortgage is attached to the complaint, and it appears that the same is signed as follows: "M. Shaughnessy, personally and as executor and trustee under the last will of Eudora Shaughnessy, deceased; Walter D. Shaughnessy, by M. Shaughnessy, his attorney in fact; Philip S. Shaughnessy, by M. Shaughnessy, his attorney in fact; Eudora B. Shaughnessy Van Horn, by M. Shaughnessy, her attorney in fact." The recording of the mortgage is alleged, and also that the plaintiff was the holder of the notes, and that the same had not been paid and that there is due thereon the principal and interest and attorneys' fees, and a decree of foreclosure is demanded.

The record in this case contains a copy of a demurrer filed by M. Shaughnessy as executor and trustee under the will of Eudora Shaughnessy, deceased, while the order of the trial court recites the action of the court upon the demurrer as follows: "The defendants herein, M. Shaughnessy, personally, and as executor and trustee under the will of Eudora Shaughnessy, deceased, Philip S. Shaughnessy, Walter D. Shaughnessy and Eudora B. Shaughnessy Van Horn, having heretofore, by their attorneys interposed demurrers to the complaint of plaintiff herein, and the same having heretofore been argued and submitted to the court and the court being now fully advised in the premises, it is ordered that the said demurrers and each of them be and the same are hereby overruled."

There is some controversy between counsel as to whether demurrers were filed by Philip S. Shaughnessy, Walter D. Shaughnessy and Eudora B. Shaughnessy Van Horn, but from this record we are inclined to think from the order of the trial court that demurrers were filed by all of the defendants, and this court will consider the complaint as though demurrers had been filed by all of the defendants.

The demurrer is upon the ground, first, that the complaint does not state facts sufficient to constitute a cause of action against the defendant, as executor or trustee under the will of Eudora Shaughnessy, deceased; second, that the complaint is insufficient in that (a) it does not sufficiently appear that the defendant was ever appointed, or now is, the executor or trustee under the will of Eudora Shaughnessy, deceased; (b) it does not appear that any demand was ever made upon the defendant, M. Shaughnessy, for the payment of the note referred to in the complaint for the sum of $ 250, dated February 8th, 1907; (c) it does not appear that any demand was ever made upon the defendant, M. Shaughnessy, for the payment of the note referred to in said complaint, dated April 2, 1907; (d) it does not appear that the note dated April 12, 1907, was secured by the alleged assignment referred to in the complaint; third, that the complaint does not sufficiently set forth or show that the defendant, M. Shaughnessy, had the authority to execute or deliver the mortgage described in the complaint; fourth, that the complaint is insufficient because it does not appear that M. Shaughnessy had the authority to execute or deliver the assignments on property held by him as executor and trustee under the will of Eudora Shaughnessy, deceased, to secure his own private and individual indebtedness.

This demurrer was overruled, and an answer was filed.

The answer admits the execution of the mortgage, sought to be foreclosed, by M. Shaughnessy, in person and as executor and trustee, but denies the authority of Shaughnessy to execute the same as executor or trustee, and denies that Walter D Shaughnessy, Philip S. Shaughnessy and Eudora B. Shaughnessy Van Horn executed or delivered said mortgage. The answer also admits that M. Shaughnessy, acting as attorney in fact, executed the mortgage, but denies that Shaughnessy had any right or authority to execute or deliver the same; and admits that the defendant, M. Shaughnessy, personally, and assuming to act as executor and trustee under the will of Eudora Shaughnessy, and as attorney in fact for Philip S. Shaughnessy, Walter D. Shaughnessy and Eudora B. Shaughnessy Van Horn, executed and delivered the...