Mendini v. Milner

• Decision Date: 02 April 1929
• Docket Number: 5091
• Citation: 276 P. 313,47 Idaho 439
• Parties: LUIGI MENDINI and ROSA MENDINI, Husband and Wife, Respondents, v. SALINA S. MILNER et al., Defendants; MARY S. RUTT, Intervenor and Appellant
• Court: Idaho Supreme Court

276 P. 313

47 Idaho 439

LUIGI MENDINI and ROSA MENDINI, Husband and Wife, Respondents, v. SALINA S. MILNER et al., Defendants;

MARY S. RUTT, Intervenor and Appellant

No. 5091

Supreme Court of Idaho

April 2, 1929

STATUTE OF LIMITATIONS-CONSTRUCTION-EXEMPTIONS-CAREY ACT WATER CONTRACTS.

1. Statute of limitations, C. S., secs. 6609, 6611, in general is to be liberally construed, and must be applied in all cases where exception is not specifically made.

2. Statutes creating exemptions from statute of limitations are to be strictly construed and will not be extended by implication.

3. C S., sec. 3019, relative to lien for purchase price of Carey Act water contract, held not to except such water contracts from operation of general statute of limitations, C. S., sec 6609, and therefore did not preserve all remedies for their enforcement without regard to lapse of time.

4. Owner of land who had executed mortgage could not, after bar of statute of limitations had become complete as to rights under Carey Act water contract, create new lien or revive old one as to such payments to prejudice of holder of mortgage.

5. A debt can be revived or acknowledged only by one liable for its performance.

6. Method of determining whether agreement after limitations had run was acknowledgment of and continued Carey Act water contract under C. S., sec. 6631, or whether new obligation was created, is to inquire whether, in action to enforce obligation, new contract or old one as extended would be pleaded as foundation of plaintiff's claim.

7. Where it did not appear on face of complaint in intervention in action to quiet title, that intervenor's cause was barred by statute of limitations, such defense could not be presented by demurrer, but was properly presented by answer.

8. Court of equity will not quiet title as against unpaid lien, though its enforcement is barred by statute of limitations, but in such case court will require of plaintiff that he do or offer to do equity by paying or offering to pay lien.

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

Action to quiet title. Judgment for plaintiffs. Affirmed.

Decree affirmed, with costs. Petition for rehearing denied.

Sweeley & Sweeley, for Appellant.

The lien of the water contract held by appellant and set out in her complaint in intervention was not barred by the statute of limitations, for it was kept alive by the express provisions of the Idaho statutes, which statutes provide that said lien is "to remain in full force and effect until the last deferred payment for the water right is fully paid and satisfied according to the terms of the contract under which said water right was acquired." (C. S., sec. 3019.)

As all of the facts relating to the claim of the intervenor, including the time of payment of the purchase price of the water contract, were fully shown on the face of her complaint, the plea of the bar of the statute of limitations could be made only by demurrer, and, not having been so made, that defense was waived. Under those circumstances that defense could not be raised by answer. (C. S., secs. 6692, 6693; Rogers v. O. W. R. & N. R. Co., 28 Idaho 609, 156 P. 98; Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226; Smith v. Richmond, 19 Cal. 476, 1 Bancroft's Code Pleading, p. 1007, sec. 717.)

Bissell & Bird, for Respondents.

Appellant's contract is subject to the provisions of the general limitations statutes. (C. S., sec. 3019; T. F. O. L. & W. Co. v. Martens, unpublished opinion of Judge Dietrich filed Dec. 1919, Case No. 606.)

The statute of limitations may be pleaded either by special demurrer or by answer, where it appears on the face of the complaint that the cause of action is barred by such statute. (Rogers v. Oregon-Washington R. & N. Co., 28 Idaho 609, 156 P. 98.)

BAKER, District Judge. Budge, C. J., Givens and Wm. E. Lee, JJ., and Adair, D. J., concur.

OPINION

BAKER, District Judge.

Plaintiffs, who are respondents in this court, commenced this action to quiet their title to a tract of Carey Act land and the appurtenant water right in Twin Falls county. The defendants defaulted. Mary S. Rutt, assignee of water contract dated October 18, 1907, entered into between the construction company and the original purchaser, intervened and sought to foreclose the lien of such contract under which the final installment of the purchase price became due on October 18, 1917. She alleged that by written agreement dated February 18, 1922, between the owner of the land and her immediate assignor the amount due on the contract was ascertained and agreed upon and the time of payment was extended. Plaintiffs answered the complaint in intervention and alleged that intervenor's cause was barred by the statute of limitations (C. S., secs. 6609 and 6611).

At the trial plaintiffs offered in evidence certified copies of various conveyances by which it appears the legal title to the land became vested in the Idaho Butchering & Packing Company on March 6, 1913. In all of these conveyances it was provided that the grantee assumed payment of the incumbrances of record of which the water contract was one. Plaintiffs then offered a record title initiated by mortgage dated October 1, 1920, executed by A. M. Stangle and wife to Sam Tauber. The mortgage was foreclosed by an assignee and sheriff's deed was ultimately issued to plaintiffs' remote grantor. In the foreclosure action the mortgagors, all subsequent claimants and the Idaho Butchering & Packing Company were made parties defendant. The company appeared by its attorney. In that action the court found that the company was a corporation and adjudged that the lien of the mortgage was superior to all claims of the Idaho Butchering & Packing Company. The decree of foreclosure became final without appeal or other attack.

Intervenor proved, among other things, the record of the water contract and the agreement dated February 18, 1922, recorded August 1, 1922, between A. M. Stangle and wife and intervenor's immediate assignor by the terms of which the amount due on the contract was ascertained and time of payment was extended to March 1, 1924. Neither Stangle's mortgagee nor anyone in privity with him was a party to the contract.

Intervenor later presented her unverified motion alleging that the Idaho Butchering & Packing Company was the record owner of the land, that the chain of title stopped when title had become vested in that company, that on December 1, 1917, its charter and right to do business had been declared forfeited by reason of its failure to pay the annual license tax, asked that a trustee be named to represent it, that other persons be made parties to the suit and that a further hearing be had on the issues to be so presented. The motions were granted. The complaint in intervention was not amended so as to present an issue of the forfeiture of the company's charter. There was no proof of forfeiture and no finding on that question.

The trial court concluded that the plaintiffs were the owners of the land and the appurtenant water rights, that the intervenor's cause of action was barred by the statute of limitations and that plaintiffs were entitled to decree quieting their title to the land and the appurtenant water rights against the claims of the defendants. Decree was accordingly entered. Plaintiffs were awarded nothing against the intervenor. As to her claim it was adjudged only that the statute of limitations had barred recovery.

The appellant, intervenor, contends: (1) That the decree of foreclosure was void as against the Idaho Butchering & Packing Company for the reason that its charter had at that time been forfeited; (2) that the provisions of C. S., sec. 3019, exempt water contracts from the operation of the statute of limitations; (3) that the Stangle agreement interrupted the running of the statute and fixed a new date for the accrual of her cause of action; (4) that the defense of the bar of the statute of limitations was available by demurrer and was waived by a failure to so plead it though the statute was relied upon in the answer; and (5) that the decree was erroneous in that plaintiffs' title was quieted against a lien which had not been paid.

It is a sufficient answer to appellant's first contention to say that there was neither allegation, proof nor finding that the charter of the Idaho Butchering & Packing Company had at any time been forfeited. It is not necessary to consider the other arguments advanced by respondent that appellant's position is unsound.

Appellant insists that the provision found in C. S., sec. 3019, that the lien for the purchase price of Carey Act water contract is "to remain in full force and effect until the last deferred payment for the water right is fully paid and satisfied according to the terms of...