Mochel v. Cleveland, 5641
| Decision Date | 22 December 1930 |
| Docket Number | 5641 |
| Court | Idaho Supreme Court |
| Parties | LEONARD E. MOCHEL and BLANCHE E. MOCHEL, His Wife, Respondents, v. CHARLES E. CLEVELAND and CHRISTINE CLEVELAND, His Wife, and AMERICAN BANK & TRUST COMPANY, a Corporation, Appellants |
SPECIFIC PERFORMANCE - FAILURE OF CONSIDERATION AS DEFENSE - BURDEN OF PROOF - WRITTEN INSTRUMENT - PRESUMPTION-VENDOR'S LIEN-CONTRACT OF SALE-RESERVATION OF TITLE-REMEDIES OF VENDOR - SET-OFF AND COUNTERCLAIM - MUNICIPAL CORPORATIONS - ORDINANCES - STREETS AND HIGHWAYS - DEDICATION - ABANDONMENT.
1. In vendor's action for specific performance, duty of alleging and burden of proving inadequacy of consideration rests on purchaser (C. S., secs. 5663, 5664).
2. In vendors' action for specific performance of conditional real estate sales contract, prayer that, if purchasers fail to perform, property be sold and proceeds applied to satisfaction of demand, and for judgment for deficiency, held proper.
3. Equity should avoid multiplicity and adjudicate subject matter and rights of parties proceeding therefrom.
4. Findings and judgment in purchasers' unsuccessful action for rescission for fraud regarding boundary held not res judicata of purchasers' cross-action, in vendors' action for specific per- formance, setting up vendors' inability to convey "merchantable title" required by contract.
5. Vendors held not estopped to maintain action for specific performance because failing to set up demand as counterclaim in purchasers' unsuccessful action for rescission.
6. "Counterclaim" must qualify or defeat judgment plaintiff is seeking.
7. In purchasers' action for rescission, vendors' money demand was matter for cross-complaint, permissive, but not mandatory.
8. Ordinance void on its face may be attacked collaterally.
9. Ordinance, vacating dedicated street and authorizing execution of quitclaim deeds "to abutting landowners," held not void on face, since not evincing intent to quitclaim to anyone not entitled.
10. Construction placed on their statutes by sister states prior to adoption by Idaho, while greatly persuasive, is not conclusive.
11. Recording of plat vested only determinable fee for public use to surface of street in city (C. S., secs. 3963, 4091).
12. On vacating portion of street in recorded plat, city could not convey fee therein to owner of abutting land not in plat (C S., secs. 3963, 4091).
13. In vendors' action for specific performance, purchasers held not estopped to raise lack of merchantable title by failure to include it as ground for rescission in former action brought before contract matured.
14. Purchasers could not be charged with laches in rescission of contract until they had notice vendors would not further attempt to cure unmerchantable title.
15. Where purchasers rescinded for lack of merchantable title after being in possession of premises for considerable time vendors were entitled to reasonable rental value.
APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. W. F. McNaughton, Judge.
Action by Leonard E. Mochel and his wife for the specific performance of a contract. Cross-complaint by defendants praying rescission of the contract. Judgment for plaintiff and cross-defendant. Reversed and remanded.
Reversed and remanded with instructions. Costs to appellants.
Tannahill & Leeper and R. E. Durham, for Appellants.
Plaintiff cannot demand specific performance and also demand foreclosure of vendor's lien. (Hawkins v. Thurman, 1 Idaho 598, 23 P. 598; Maltby v. Conklin, 50 Cal.App. 201, 195 P. 280; Allen v. Wilson, 178 Cal. 674, 174 P. 661.)
Foreclosure does not lie because there is remedy provided by the contract.
The obligation to pay and the obligation to furnish an abstract showing merchantable title are mutual, dependent and concurrent stipulations. (Kessler v. Pruitt, 14 Idaho 157, 93 P. 965; Abercrombie v. Stoddard, 39 Idaho 146, 228 P. 232; Rischar v. Shields, 26 Idaho 616, 145 P. 294; Richards v. Jarvis, 41 Idaho 237, 238 P. 887.)
Vendors cannot sue for specific performance or any other relief until they have tendered an abstract showing merchantable title. ( Bell v. Stadler, 31 Idaho 568, 174 P. 129; Sorensen v. La Rue, 43 Idaho 292, 252 P. 494.)
Specific performance cannot be decreed where reasonable doubt concerning the title exists, though rested on grounds merely debatable but which might visit upon the purchaser litigation in that regard, and that too where at law the title might in fact be declared good. (Van Riper v. Wickersham, 77 N.J. Eq. 232, Ann. Cas. 1912A, 319, 76 A. 1020, 30 L. R. A., N. S., 25; Pomeroy on Specific Performance, sec. 198; Vreeland v. Blauvelt, 23 N.J. Eq. 483; Dobbs v. Norcross, 24 N.J. Eq. 327; Tillotson v. Gesner, 33 N.J. Eq. 313; Cornell v. Andrews, 35 N.J. Eq. 7; Lippincott v. Wikoff, 54 N.J. Eq. 107, 33 A. 305.)
The title tendered by plaintiff is not merchantable, because: Upon vacation of west twenty feet of Prospect Avenue, title vested in owners of abutting property within the original subdivision and the city never acquired, and could not pass a fee-simple title thereto. (C. S., secs. 3963, 3979, 5091 and 5359; Shaw v. Johnston, 17 Idaho 676, 107 P. 399; Sowadzki v. Salt Lake County, 36 Utah 127, 104 P. 111; Rowe v. James, 71 Wash. 267, 128 P. 539; Jose v. Hunter, 60 Ind.App. 569, 103 N.E. 392, 852; Brackney v. Boyd, 71 Ind.App. 592, 123 N.E. 695, 125 N.E. 238; Erwin v. Central Union Tel. Co., 148 Ind. 365, 46 N.E. 667, 47 N.E. 663; Koshland v. Spring, 116 Cal. 689, 48 P. 58; Wirt v. McEnery, 21 F. 233; St. John v. Quitzow, 72 Ill. 334; Gebhardt v. Reeves, 75 Ill. 301.)
Cox & Martin and Lincoln E. Shropshire, for Respondents.
Under the statutes of Idaho a written instrument is in itself presumptive evidence of consideration, and the burden of showing a want thereof rests with the party seeking to avoid the contract. (C. S., secs. 5663, 5664; 5 Pomeroy's Equity Jurisprudence, 2d ed., pp. 4952, 4953, secs. 789, 790; Franklin Tel. Co. v. Harrison, 145 U.S. 459, 12 S.Ct. 900, 36 L.Ed. 776; Saint v. Beal, 66 Mont. 292, 213 P. 248; Finlen v. Heinze, 28 Mont. 548, 73 P. 123; Sturtz v. Ommen, 32 S.D. 396, 143 N.W. 288.)
Respondents seek foreclosure of a contractual lien and it is proper to seek specific performance in the same complaint.
Appellants, having remained in possession and enjoyment of the property for a long period of time in full knowledge of all of the facts sought to be interposed as a defense, are by their laches estopped from urging these defenses. (Mulhall v. Lucas, 37 Idaho 558, 217 P. 266; Wilson v. Sunnyside Orchard Co., 33 Idaho 501, 196 P. 302; Sims v. Robison, 142 Wash. 555, 253 P. 788; McCourt v. Johns, 33 Ore. 561, 53 P. 601; Vanderwilt v. Broerman, 201 Iowa 1107, 206 N.W. 959; Schafroth v. Ross, 289 F. 703.)
Appellants having tendered in a former case the issue that title to a portion of the property was incurably defective because of the invalidity of Ordinance 970, and with issue joined, the same having been finally concluded on its merits, the doctrine of res adjudicata is decisive of their right to litigate the same issue in this suit. (Joyce v. Murphy Land etc. Co., 35 Idaho 549, 208 P. 241; Hilton v. Stewart, 15 Idaho 150, 128 Am. St. 48, 96 P. 579; Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 39 S.Ct. 506, 61 L.Ed. 1148; United States v. California & Oregon Land Co., 192 U.S. 355, 24 S.Ct. 266, 48 L.Ed. 476; Miller v. Belvy Oil Co., 248 F. 83, 160 C. C. A. 223; Nye v. Prairie Oil & Gas Co., 105 Okla. 104, 238 P. 962.)
To hold that the fee to real property used as a street, when vacated as such, by a municipality, reverts to other than the abutting property owners would be destructive of abutting property owners' rights of ingress and egress to their property, and hence would be taking property without due process. (Sec. 1 of the Fourteenth Amendment to the Federal Constitution; Idaho Const., art. 1, sec. 13; Eachus v. Los Angeles Con. Elec. R. Co., 103 Cal. 614, 42 Am. St. 149, 37 P. 750; Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945, 17 L. R. A., N. S., 497.)
In 1899, one Holcomb and his wife dedicated certain platted lots and streets to the city of Lewiston. The dedication was known as "Holcomb's First Subdivision of Lot 10 of Acres, Lewiston, Idaho." Prospect Avenue, an integral part of the tract dedicated, consisted of a strip, eighty feet wide, running north and south, the west boundary line thereof constituting the west boundary of said subdivision.
In 1922, the city of Lewiston by Ordinance No. 970 vacated the west twenty feet of Prospect Avenue and authorized the mayor and the city controller to execute quitclaim deeds "to the abutting landowners of the strip of Prospect Avenue hereby vacated and abandoned." There was no sidewalk along the west side of Prospect Avenue, but there was a curb approximately thirteen feet east of the new, west boundary line of said avenue, some thirty-three feet east of the original west boundary.
Plaintiffs and respondents, Leonard E. Mochel and wife, Blanche E Mochel, representing themselves to be the owners of certain residence property situate west of Prospect Avenue and abutting thereon, entered into a conditional sales contract with defendants and appellants, Charles Cleveland and...
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