McDougall v. Servel

• Decision Date: 21 October 1930
• Docket Number: 5566
• Citation: 50 Idaho 9,292 P. 590
• Parties: ISAAC MCDOUGALL, Trustee in Bankruptcy of the Estate of XAVIER SERVEL, Bankrupt, Appellant, v. PHILOMENE SERVEL, PHILOMENE SERVEL, Administratrix of the Estate of PIERRE SERVEL, Deceased, and PIERRE SERVEL, a Minor, Respondents
• Court: Idaho Supreme Court

292 P. 590

50 Idaho 9

ISAAC MCDOUGALL, Trustee in Bankruptcy of the Estate of XAVIER SERVEL, Bankrupt, Appellant, v. PHILOMENE SERVEL, PHILOMENE SERVEL, Administratrix of the Estate of PIERRE SERVEL, Deceased, and PIERRE SERVEL, a Minor, Respondents

No. 5566

Supreme Court of Idaho

October 21, 1930

EVIDENCE - IDENTIFICATION OF PARTIES - TRUSTS - MORTGAGES-DEED ABSOLUTE ON FACE-CONTRACTS-CONSIDERATION-PAYMENT.

1. Oral evidence held admissible to identify grantee in deed where there were two persons in same community having grantee's name.

2. Purchase by debtor of land in name of creditor, in application on indebtedness, does not create trust.

3. Purchase of land by debtor in name of creditor, in application on indebtedness, does not create mortgage.

4. Evidence sustained finding that debtor purchased land under agreement to take title in name of brother and credit purchase money on indebtedness to brother which did not create resulting trust.

5. Agreement by debtor to purchase land for creditor and apply purchase price on indebtedness held not without consideration, because purchase money was credited on void indebtedness, where there was other valid indebtedness.

6. Payment must be applied on valid claim of indebtedness containing good and bad claims.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Hugh A. Baker, Judge.

Action to establish a resulting trust in lands. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondent.

Bissell & Bird, for Appellant.

The language of the deed in question and the identity of the grantee therein named are plain on the face of the instrument itself. The intent of the contracting parties, so definitely expressed, should be given effect, and resort should not be had to extrinsic facts or circumstances. (Meir-Nandorf v. Milner, 34 Idaho 396, 201 P. 720; 22 C. J. 1124, note 29.)

If resort must be had to extraneous matters to determine the full effect of this deed, then the acts and treatment of the subject by the parties, that is, the rule of practical construction, is the safest and surest test of the understanding of the contracting parties. (9 Cal. Jur. 131 259; Grant v. Bannister, 160 Cal. 774, 118 P. 253; 18 C. J. 262, 279; Lowery v. Westheimer, 58 Okla 560, 160 P. 496; Town of Gold Bar v. Gold Bar Lbr Co., 109 Wash. 391, 186 P. 896; Luty v. Cresta, 4 Cal.App. 589, 88 P. 642; Bolster v. Lambert, 67 Ore. 134, 135 P. 325.)

Merrill & Merrill, for Respondents.

When a debtor purchases land and directs the title transferred to his creditor in application upon his indebtedness, no trust is created and the creditor becomes the owner of the land. (40 Harvard Law Review, p. 680; Jackson v. Morse, 16 Johns. (N. Y.) 197, 8 Am. Dec. 306; King v. King, 281 Pa. 511, 127 A. 142; Harris v. Elliott, 46 W.Va. 245, 32 S.E. 176.)

Parol testimony may be introduced to establish the identity of a grantee in a deed. This does not vary the terms of the deed but merely explains it. (Parker v. Wear, (Mo.) 230 S.W. 75; 4 Thompson on Real Property, sec. 2970, p. 43; 3 Thompson on Real Property, sec. 2891, p. 1061; Tillotson v. Webber, 96 Mich. 144, 55 N.W. 837.)

MCNAUGHTON, J. Givens, C. J., Lee and Varian, JJ., and Terrell, D. J., concur.

OPINION

MCNAUGHTON, J.

The plaintiff, trustee in bankruptcy of the estate of Xavier Servel, sues to recover certain real property known as the Tyhee ranch, and to require conveyance of the legal title to him.

It is claimed by the plaintiff that the real property in question was purchased, subject to a $ 7,000 mortgage, by Xavier Servel for use in his sheep business, with funds belonging to him, and upon said purchase took possession thereof as owner, and the said property became a part of his estate. It is alleged that at the time the purchase was made the said Xavier Servel was heavily indebted to many creditors and was in fact insolvent; and that with the design and purpose to cheat and defraud his creditors he wrongfully and fraudulently caused the name of Pierre Servel of Pocatello, Idaho, to be inserted as grantee in the purchase deed.

It is alleged that Xavier had a brother of the name of Pierre Servel, deceased since said conveyance was executed, and that Philomene Servel, his widow, claims to own said real property as executrix of the said estate of Pierre Servel and individually as sole heir. It is also charged in the complaint that Xavier Servel has a son named Pierre Servel who resides at Pocatello, Idaho, who claims some interest in said real property.

The son, Pierre Servel, by duly appointed guardian ad litem, has filed a general denial.

Philomene Servel claims to be the rightful owner of said premises as personal representative of Pierre Servel, deceased, and in her individual capacity as sole heir of Pierre Servel, deceased.

Upon trial of the issues of fact the court found that on Nov. 10, 1924, Xavier Servel, then being engaged in the sheep and livestock business, and being heavily indebted to various creditors, and particularly being heavily indebted to one Pierre Servel, brother of Xavier Servel, conducted negotiations for purchase of the lands in question from M. E. Hooker and Ella Hooker, his wife, for $ 7,319. That on said date Xavier Servel paid E. M. Hooker, $ 5,000, and later, on July 2, 1925, paid the balance of the purchase price, at which time there was delivered a warranty deed to Pierre Servel conveying to him said premises. The court further found that at the time of said transactions, Xavier Servel was heavily indebted to his brother Pierre in an amount in excess of the purchase price paid for the property, and that prior to the purchase an agreement or understanding was had between Xavier and his brother Pierre to the effect that said real estate should be purchased for and on account of said Pierre Servel, and that the purchase price paid therefor should be credited by Pierre upon the indebtedness then owing him by Xavier. The court further found that Pierre Servel, named as grantee in the warranty deed and to whom the real estate was conveyed, was Pierre Servel, brother of said Xavier Servel and not the minor son of Xavier Servel.

The court found that the purchase and conveyance was not made or done by Xavier Servel for the purpose of concealing any of his property from creditors, and the conveyance was not wrongful and/or fraudulent, nor in contemplation of bankruptcy, but was for the purpose of a payment, to the extent of the purchase price, of an indebtedness owing by Xavier Servel to said Pierre Servel.

Conclusions of law and judgment were for Philomene Servel, finding and decreeing fee-simple title in her. Plaintiff McDougall, trustee, appeals and bases his appeal upon two assignments:

First, that the findings and conclusions are contrary to the law and evidence: (a) because the grantee named and described in the deed as Pierre Servel of Pocatello is the minor son of Xavier Servel, not the brother who lived at Robin. (b) Because Xavier paid for the land with his own money, went into immediate and complete possession and operated the same with the acquiescence of respondent's predecessor.

Second, that the finding that the purchase price of the land, paid by Xavier, was for the purpose of a payment pro tanto upon an indebtedness owing to his brother, and similar conclusions of law are contrary to the law and the evidence, in that the record shows that the note, in part payment of which the parties pretended to credit such land payments, had theretofore been fully paid and canceled by conduct of the parties and by operation of law and afforded no consideration.

Xavier Servel's brother Pierre resided mainly at Robin, Idaho but was well known at Pocatello, Idaho, where it is testified he...