Oatman v. Hampton

• Decision Date: 01 March 1927
• Citation: 43 Idaho 675,256 P. 529
• Parties: MARY OATMAN and MARY OATMAN, as Administratrix of the Estate of JOHN OATMAN, Deceased, Appellants, v. LUTHER HAMPTON and LILLIAN HAMPTON, His Wife, DAVID SCHIFFER and CLARA SCHIFFER, His Wife, GUS D. THIESSEN, LILLY THIESSEN and GEORGE G. THIESSEN, Respondents
• Court: Idaho Supreme Court

256 P. 529

43 Idaho 675

MARY OATMAN and MARY OATMAN, as Administratrix of the Estate of JOHN OATMAN, Deceased, Appellants, v. LUTHER HAMPTON and LILLIAN HAMPTON, His Wife, DAVID SCHIFFER and CLARA SCHIFFER, His Wife, GUS D. THIESSEN, LILLY THIESSEN and GEORGE G. THIESSEN, Respondents

Supreme Court of Idaho

March 1, 1927

APPEAL AND ERROR-APPEALABLE ORDER-AMENDMENTS TO SPECIFICATIONS OF ERROR-EVIDENCE-PUBLIC RECORDS-VENDOR AND PURCHASER-BURDEN OF PROOF-DEEDS-CANCELATION OF INSTRUMENTS-EQUITY-SUBROGATION-QUIETING TITLE-JUDGMENT-ORDER OF SUBSTITUTION-HUSBAND AND WIFE-COSTS.

1. In the absence of an affirmative showing to the contrary, notice of appeal will be presumed to speak the truth as to appellants' representative capacity.

2. Where, after judgment for defendants, in action for cancelation of certain conveyances and to quiet title, a sale was had to satisfy defendants' liens according to priority, and, subsequently, on application of one defendant sale was vacated, an appeal by plaintiff from order vacating sale held not to constitute an adoption of judgment and waiver of appeal therefrom, since in order to effect waiver there must be some intent to enjoy benefit from or base some interest on judgment appealed from.

3. Order vacating sale to satisfy mortgage liens on premises according to priority, held appealable.

4. Where appellants, before argument, requested leave therefor they will be permitted to file submitted amendments to their specifications of error.

5. Statement of counsel on his own and client's behalf that original deed held not in possession or under control of party producing certified copy was not sufficient, under C S., sec. 7969, to authorize introduction of certified copy thereof.

6. C S., sec. 7969, providing that certified copy of record of conveyance of real property may be read in evidence on proof that original is not in possession or under control of party producing certified copy, is mandatory, and admission of copy without such proof is erroneous.

7. Lower court's finding will not be disturbed, where evidence is in substantial conflict.

8. The fact that deed relied on by subsequent purchasers had been signed by original grantors by mark only fixed such purchasers of signers' inability to read and write.

9. Generally, grantor, alleging that his deed is invalid because of not understanding its nature or conents, must sustain the burden of proving that fact, except where confidential or fiduciary relation exists, or parties were not dealing on equal footing by reason of illiteracy, ignorance of language or lack of understanding.

10. In action by Indian wards for cancelation of deed, alleged to have been executed by them, and to quiet title, evidence held insufficient to support finding that plaintiffs knew they were signing deed; hence instrument recorded as such was a mere nullity and utterly void against all parties claiming thereunder.

11. Where Indian wards at time of executing alleged deed received $3,000, for which they intended and endeavored to execute a mortgage, equity will, on canceling deed, deem such mortgage executed, giving grantee an equitable lien on land therefor.

12. Where grantee mortgaged interest he might have in land as security for loan, equity on canceling deed will subrogate such mortgagee's assignee to rights of grantee to extent of $3,000 advanced to original grantors for which they intended and endeavored to execute a mortgage.

13. On canceling deed on ground that grantors at time of execution did not know they were signing a deed, title will not be quieted, unless plaintiffs save subsequent purchaser harmless from disbursements in good faith in payment of certain specified taxes on land.

14. Courts have inherent power to enforce their judgments as entered.

ON PETITION FOR REHEARING.

15. A court order of substitution is not necessary to enable an administrator to carry on his intestate's litigation by appeal, since right of nonsubstituted or nonappearing administrator to appeal is not governed by C. S., sec. 6652 but is derived exclusively from sec. 7151, providing that any party aggrieved may appeal.

16. Where land involved in action by Indian wards to cancel conveyance and quiet title came to plaintiffs by United States patent and under law of state constituted community property, fact that husband knew at time of executing deed that it was such and not mortgage would be immaterial without proof that wife understood nature and contents of such paper, since husband was powerless to convey property without wife's concurrence.

17. Where appeal from order vacating sale pursuant to judgment was without merit, appellants were not entitled to costs.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Miles S. Johnson, Judge.

Action for cancelation and to quiet title. Judgment for defendants. Reversed and remanded, with instructions.

Judgment reversed in part and affirmed in part. Cost on appeal awarded to respondents.

A. S. Hardy and F. J. Rehberg, for Appellants.

A certified copy of a record of a purported deed is not admissible in evidence without legal proof that the original is not in the possession or under the control of the party producing the certified copy, and its admission in evidence without such proof is error. (C. S., sec. 7969; Brown v. Griffith, 70 Cal. 14, 11 P. 500; Grant v. Oliver, 91 Cal. 158, 27 P. 596, 861.)

A deed secured to be signed by false representations or some trick or deceit as to the character of the instrument is utterly void, even as to so-called bona fide purchasers. (McGinn v. Toby, 52 Mich. 252, 4 Am. St. 848, 28 N.W. 818; Mardin v. Dorthy, 160 N.Y. 39, 54 N.E. 726, 46 L. R. A. 694; Devlin on Deeds, sec. 726; Green v. Wilkie, 98 Iowa 74, 60 Am. St. 174, 66 N.W. 1046, 36 L. R. A. 434; Meley v. Collins, 41 Cal. 663, 10 Am. Rep. 279; Babcock v. Farwell, 245 Ill. 14, 137 Am. St. 284, 19 Ann. Cas. 75; Indiana etc. Co. v. Fowler, 201 Ill. 152, 94 Am. St. 158, 66 N.E. 394.)

The above is particularly true respecting illiterate persons who sign by mark. (Selden v. Myers, 20 How. (U.S.) 506, 15 L.Ed. 976.) And an instrument so signed is as if the same were never voluntarily delivered and void. (Bowers v. Cottrell, 15 Idaho 221, 96 P. 936; Telschow v. Quiggle, 74 Ore. 105, 145 P. 11.)

Entry of judgment after death of the party is error. (Phelan v. Tyler, 64 Cal. 80, 28 P. 114; Gordon v. Hillman, 109 Wash. 223, 186 P. 651; Berding v. Varian, 34 Idaho 587, 202 P. 567; C. S., sec. 6899.)

Sheriff's sale was not void by reason of erroneous statement of the amount of the judgment, and should not have been set aside, except upon complaint of the execution defendant, nor for neglect of the complaining party, the law favoring finality of sale. (C. S., secs. 6922, 6923, 6949; Stratton v. Reisdorph, 35 Neb. 314, 53 N.W. 136; Amoskeag S. Bank v. Robbins, 53 Neb. 776, 74 N.W. 261; Stull v. Seymour, 63 Neb. 87, 88 N.W. 174; Everett v. Forst, 269 F. 867, 15 A. L. R. 789; Norton v. Taylor, 35 Neb. 466, 37 Am. St. 441, 53 N.W. 481, 18 L. R. A. 88; Colonial etc. Co. v. Sweet, 65 Ark. 152, 67 Am. St. 910, 45 S.W. 60.)

The property having been sold upon sheriff's sale, upon reversal of the judgment, restoration should be made to the plaintiffs. (DiNola v. Allison, 143 Cal. 106, 101 Am. St. 84, 76 P. 976, 65 L. R. A. 419; Benney v. Clein, 15 Wash. 581, 46 P. 1037; Galpin v. Page, 18 Wall. (U.S.) 250, 21 L.Ed. 959.)

Administrator may join in appeal of coparty as a "party" without formal substitution. (Webster v. Hastings, 56 Neb. 245, 76 N.W. 565; Jefferson Co. Bank v. Robbins, 67 Wis. 68, 29 N.W. 209; Phares v. Saunders, 18 W.Va. 336; 2 R. C. L. 49; Meades Estate, 5 Cal. Unrep. 678, 49 P. 5.)

Appeal from order is not inconsistent with appeal from judgment. (Fall etc. Co. v. Day, 39 Idaho 495, 228 P. 313; First Nat. Bank v. Hesdorffer, 107 Miss. 709, 65 So. 507.)

Cox & Martin and Tannahill & Leeper, for Respondents.

The administratrix of John Oatman was an indispensable party plaintiff and no appeal could be taken until she was substituted by order of the court as a party to the action as such administratrix. (C. S., secs. 6636, 6652, 7657; Coffin v. Edgington, 2 Idaho 627, 23 P. 80; McCornick v. Shaughnessy, 19 Idaho 465, 114 P. 22, 34 L. R. A., N. S., 1188; Holter v. Hauser, 33 Idaho 406, 195 P. 628; Pedlar v. Stroud, 116 Cal. 461, 48 P. 371; Judson v. Love, 35 Cal. 463.)

Where a party dies after the trial of the cause is completed and the cause is submitted to the court, the decedent has had his day in court and must be presumed to have urged every consideration which his personal representatives could urge. The decree is merely the record of the court's conclusions upon issues which were fully tried while the decedent was still living. Without the power to enter decree under such circumstances the administration of justice could be gravely obstructed. Consequently, courts have inherent power to enter such judgments. (1 Freeman on Judgments, 5th ed., p. 221, sec. 121; Mitchell v. Overman (U.S.), 26 L.Ed. 369; In re Pillsbury's Estate, 175 Cal. 454, 3 A. L. R. 1396, 166 P. 11; More v. Miller, 6 Cal. Unrep. 78, 53 P. 1077; Fox v. Hale & Norcross Silver Min. Co., 108 Cal. 475, 41 P. 328; John v. Superior Court, 5 Cal.App. 262, 90 P. 53; Judson v. Love, 35 Cal. 463; Mitchell v. Schoonover, 16 Ore. 211, 8 Am. St. 282, 17 P. 867.)

The appeal from the order vacating the sheriff's sale asserting rights based on the validity of the judgment and the sale had under it is a waiver of the appeal from judgment. (3 C. J. 669; Fidelity & Dep. Co. of Maryland v. Kepley, 66 Kan. 343, 71 P. 818.)

In this action appellants contend that they have the right to retain all the benefits of their deal with...