Muckle v. Hill

• Decision Date: 12 January 1920
• Citation: 32 Idaho 661,187 P. 943
• Parties: JAMES MUCKLE, Respondent, v. WALTER H. HILL, Appellant
• Court: Idaho Supreme Court

187 P. 943

32 Idaho 661

JAMES MUCKLE, Respondent, v. WALTER H. HILL, Appellant

Supreme Court of Idaho

January 12, 1920

MORTGAGES-FORECLOSURE-DESCRIPTION-REFORMATION-FINDINGS-ATTORNEY FEES.

1. A description of property in a mortgage cannot be reformed on the ground of mistake when the evidence shows that the property sought to be included by reformation was purposely omitted.

[As to the right to reform description in mortgage as against purchaser without notice, see note in Ann.Cas. 1918D, 147.]

2. A mortgage of a building with the appurtenances covers the land upon which the building stands and which is necessary to its convenient and proper use.

3. A mortgage of a steam actuated pumping plant permanently located upon and affixed to mining ground falls within the above rule.

4. Failure to find the facts upon all of the material issues necessitates a reversal of the cause.

5. When the complaint in an action to foreclose a mortgage alleges that a certain sum is a reasonable attorney fee and this fact is denied in the answer, and no evidence is introduced in support of the issue thus raised, it is error to allow an attorney fee.

APPEAL from the District Court of the Second Judicial District, for Idaho County. Hon. Edgar C. Steele, Presiding Judge.

Action to reform and foreclose a mortgage. Judgment for plaintiff. Remanded for further proceedings.

Cause remanded, with instructions. Costs awarded to appellant.

A. S Hardy, for Appellants.

Without showing intention of mortgagor to include tract in question in the mortgage and without showing mutuality of the mistake no reformation can be had. (Houser v. Austin, 2 Idaho 204, 10 P. 37; Pomeroy Eq. Jur., sec. 854; 34 Cyc. 915; Woerner v. Woerner, 171 Cal. 298, 152 P. 919; McGuigan v. Gaines, 71 Ark. 614, 77 S.W. 52; Quiggle v. Vining, 125 Ga. 98, 54 S.E. 74; Wachendorf v. Lancaster, 61 Iowa 509, 14 N.W. 316 16 N.W. 533; Forester v. Van Auken, 12 N.D. 175, 96 N.W. 301; Anderson v. Freeman, 88 Wash. 608, 153 P 307; Suksdorf v. Spokane etc. R. Co., 72 Ore. 398, 143 P. 1104; Darden v. Van Landingham (Tex. Civ.), 189 S.W. 297; Baker v. Pierce, 197 Ill.App. 158; Cherry v. Brizzolara, 89 Ark. 309, 116 S.W. 668, 21 L. R. A., N. S., 508; Williams v. Hamilton, 104 Iowa 423, 65 Am. St. 475, 73 N.W. 1029; Tarbox v. Tarbox, 111 Me. 374, 89 A. 194.)

The evidence must clearly show actual agreement to include the omitted tract and that both parties intended to and thought the mortgage was written differently than drawn. (Houser v. Austin, supra; Pomeroy Eq. Jur., sec. 859; Weight v. Bailey, 45 Utah 584, 147 P. 899; Clark v. Clark, 141 Ga. 437, 81 S.E. 129; Disbrow v. Disbrow, 146 N.Y.S. 63.)

No attorneys' fees can be allowed in absence of pleading or proof of agreement to pay a fee and reasonableness of same. (Lewis v. Sutton, 21 Idaho 541, 122 P. 911.)

A conveyance of a mere building alone does not necessarily, and under the conditions existing in this case, imply any conveyance of the land upon which it stands. (Hood v. Whitwell, 66 Misc. 49, 120 N.Y.S. 325, 372.)

A conveyance of a building or barn used as a term of description will convey also the land upon which the building or structure may be erected. (Devlin on Deeds, sec. 1200; Blake v. Clark, 6 Me. 436.)

C. L. McDonald and Eugene A. Cox, for Respondents.

There can be no question relative to the intention of the parties to the mortgage to include therein the power plant. The trouble, if any, arose over the misdescription of the mining claim upon which the power plant was located.

"A mortgage of a building, such as a mill, store, or manufacturing plant, may cover, as appurtenant, land upon which it stands, and which is necessary to its proper use." (27 Cyc. 1143; Esty v. Baker, 50 Me. 325, 79 Am. Dec. 616; Campbell v. Gilbert, 57 Ala. 569.)

Everything essential to the beneficial use and enjoyment of the property designated in the conveyance passes to the grantee in the absence of language showing a definite intent. (Sparks v. Hess, 15 Cal. 186; Pottkamp v. Buss, 3 Cal. Unrep. 694, 31 P. 1121; Dikeman v. Taylor, 24 Conn. 219; Maddox v. Goddard, 15 Me. 218, 33 Am. Dec. 604; Webster v. Potter, 105 Mass. 414; Snow v. Inhabitants of Orleans, 126 Mass. 453; Sharp v. Thompson, 100 Ill. 447, 39 Am. Rep. 61.)

"The fact that the description of property is expressed only in broad, general terms, instead of being specific, will not necessarily invalidate it; such a description may afford the means of positive identification, and that is all that is necessary." (27 Cyc. 1087; Broach v. O'Neal, 94 Ga. 474, 20 S.E. 113; Albertson v. Prewitt, 20 Ky. Law Rep. 1309, 49 S.W. 196; Rogers v. Miller, 13 Wash. 82, 52 Am. St. 20, 42 P. 525.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

On August 31, 1910, the United Placer Mines Company, a corporation of Oregon, made, executed and delivered to James Muckle and Charles Muckle its promissory note for the sum of $ 41,000, secured by a mortgage of the same date between the same parties upon the Gold Center, Ferry Bar, the Griswold, and the Squaw Bar placer mining claims, situated in Idaho county, "together with all buildings and improvements thereon and especially one steam actuated hydraulic power plant situated on the Ferry Bar claim above mentioned. Together with the tenements, hereditaments and appurtenances thereto belonging or in any ways appertaining; . . . ."

Some time thereafter and prior to the institution of this suit the United Placer Mines Company, an Idaho corporation, was incorporated as a reincorporation of the Oregon company.

On the 3d of April, 1913, a judgment was entered in the district court of Idaho county in favor of appellant, against the United Placer Mines Company of Oregon.

This action was commenced by James Muckle and Charles Muckle to foreclose their mortgage, and the two mining companies and appellant were made defendants. The mining companies defaulted. In the amended complaint, it is alleged that a portion of the Katie B. placer mining claim, containing 17.6 acres, together with the steam actuated pumping plant and buildings situated thereon, was by inadvertence and mistake left off the description of the real property mortgaged and intended by all the parties thereto to be mortgaged. This allegation is denied in the answer to the amended complaint and also in the cross-complaint. The cause was tried by the court, findings of fact and conclusions of law were filed, and judgment entered as prayed in the amended complaint, for reformation of the mortgage and the amount of the note, accrued interest, costs and $ 5,000 attorney fees. This appeal is from the judgment.

After the action was commenced, Charles Muckle died and his executors assigned his interest in the note and mortgage to respondent James Muckle, and the trial court upon application made an order substituting James Muckle as the sole plaintiff in the action. Appellant has sought to predicate error upon this proceeding. Without passing upon the merits of his contention, we are satisfied that this situation presents no error of which appellant may complain, since it in no way affects whatever rights he may have under his judgment, upon which his entire cause is based.

The only serious questions involved in the errors assigned are those arising over the reformation of the mortgage, the allowance of the $ 5,000 attorney fee, and the failure of the trial court to make findings on all of the material issues raised by the cross-complaint.

Appellant urges that the allegations in the amended complaint are insufficient upon the question of reformation, and that the proof upon this point is insufficient to justify a finding that a portion of the Katie B. claim, consisting of 17.6 acres, was left off the description in the mortgage by mutual mistake or that it was intended to include it therein.

The evidence shows the mortgage was drawn by the attorneys for the mortgagees, who were furnished a description of the property to be included therein by one Hart, who was secretary of the United Placer Mines Company. Hart was called and examined as a witness on behalf of respondent Muckle, and from his testimony it appears that it was the intention to mortgage the steam actuated plant and its appurtenances, but that at the time he gave the description to Muckle's attorneys he thought the plant was to be located on the Ferry Bar claim, which corners on the Katie B. claim. It further clearly appears from his testimony that the United Placer Mines Company never intended to mortgage the Katie B. claim or any part thereof as such. On cross-examination, Hart testified:

"Q. In your deposition at Portland, I think about this 17 acres you were asked this question: 'But you did not intend to mortgage it at this time?' and you gave this answer, did you not: 'No, because I could not. I had nothing to mortgage. The title wasn't vested in the company nor it wasn't vested in Sharp and King, because they had no patent to it. It was only by location they held.'

"A. I...