Ollis v. Kirkpatrick

Decision Date21 December 1891
Citation3 Idaho 247,28 P. 435
PartiesOLLIS v. KIRKPATRICK
CourtIdaho Supreme Court

WHAT IS A VALID JUDGMENT-EXECUTION-NOTICE OF REAL ESTATE SALE, HOW PUBLISHED-REAL ESTATE, HOW SOLD.

RECITALS OF A VALID JUDGMENT.-A judgment which recites that defendant was duly summoned and failed to answer, that evidence was heard, cause submitted, and the court being sufficiently advised doth adjudge the plaintiff recover of the defendant the sum of eighty-two dollars and sixty-three cents, with interest and costs, dated and signed by the justice, is a valid judgment.

SALE OF PROPERTY UNDER EXECUTION AFTER IT SHOULD BE RETURNED. An execution having been duly issued, placed in the hands of the sheriff, and by him levied upon property during its lifetime the property so levied upon may be sold after the date when said execution must have been returned, had such levy not been made.

NOTICE OF SALE, HOW PUBLISHED.-Notice of sale of real estate levied upon under execution may, under our statute, be given by posting written or printed notices, or by publication in a newspaper published in the county, and the sale may be postponed by announcing the fact at the time advertised and giving notice by writing same on original notice, or putting notice thereof under the original.

HOW SEVERAL PARCELS OF REAL PROPERTY MUST BE SOLD.-When real property consists of several known lots or parcels, they must be sold separately or offered for sale in parcels, and if no bids are received, and the lots or parcels are adjacent, they may then be sold in a lump.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Judgment set aside and annulled, costs awarded to plaintiff.

Orr &amp Orr, for Appellant.

No evidence was admissible or could properly be considered by the court tending to establish facts not put in issue by the pleadings. (Lillienthal v. Anderson, 1 Idaho, 673; Fox v. Fox, 25 Cal. 588; Hall v. Polack, 42 Cal. 218; Phelan v. Gardner, 43 Cal. 306; Bradbury v. Cronise, 46 Cal. 287; Norris v Glenn, 1 Idaho, 590.) A defendant asking affirmative relief must plead as fully as a plaintiff. (Rose v. Treadway, 4 Nev. 455, 97 Am. Dec. 546.) A party claiming under a judgment of a justice of the peace must show every fact necessary to give the court jurisdiction to render judgment. (Rowley v. Howard, 23 Cal. 403; Hansberger v. Railroad Co., 43 Mo. 196; Lowe v. Alexander, 15 Cal. 297; Paul v. Armstrong, 1 Nev. 78.) A party has a right to lie by until the judgment is set up against him, and then to show that the proceedings were void for want of jurisdiction. (Freeman on Judgments, sec. 134, p. 145; Latham v. Edgerton, 9 Cow. 227; Mills v. Martin, 19 Johns. 33.) The law only protects a bona fide purchaser for valuable consideration, and a purchaser with notice of irregularities is not such bona fide purchaser. (Freeman on Executions, secs. 340-342; Rorer on Judicial Sales, secs. 864, 871; Freeman on Void Judicial Sales, sec. 54; Stephens v. Denison, 1 Or. 19.)

T. M. Stewart, for Respondent.

Errors not against the interest of the appellant are not assignable by him, and afford no ground of reversal. (McCreery v. Everding, 44 Cal. 284; Gates v. Salmon, 46 Cal. 362, 376; Chase v. Evoy, 58 Cal. 349; McGary v. Pedrorena, 58 Cal. 91.) A sale en masse of well-known and distinct parcels is not void. (Vigoureaux v. Murphy, 54 Cal. 346; San Francisco v. Pixley, 21 Cal. 57; Cunningham v. Cassidy, 17 N.Y. 276.) A sale cannot be collaterally avoided for inadequacy of price. (Elston v. Castor, 101 Ind. 426, 51 Am. Rep. 754.)

MORGAN, J. Sullivan, C. J., and Huston, J., concur.

OPINION

MORGAN, J.

This is an action to quiet title. The plaintiff alleges that he is owner and in possession of the following described tracts of land: Lots 3, 4 and 5 in section 21, and the east half of the northwest quarter, and lots 1, 2, and 3 of section 28, all in township 3 south, range 34 east, Boise meridian, in Bingham county, Idaho. That defendant, William Kirkpatrick, commenced suit against H. C. Ollis in the probate court of said county, had a jury trial, and the jury returned a verdict in favor of said Kirkpatrick, and against said H. C. Ollis, for $ 110, but alleges that no judgment was entered thereon. That a transcript of said pretended judgment was filed in the district court on the seventh day of November, 1888, and execution was issued thereon. And further avers that Smith and Wright obtained judgment against H. C. Ollis in the justice court of R. H. Hopkins, in said county, but avers that said judgment is void. That a pretended transcript of said judgment was filed in the district court in said county on the seventh day of November, 1888, and execution issued thereon. The said two executions were levied upon lots 1, 2, and 3 of section 28, in township 3 south, of range 38 east, Boise meridian. That the sheriff intended to describe said land as being in township 34 east. That the latter was the correct description of the land of H. C. Ollis, but, by mistake of the sheriff, it was described as being in township 38 east, of Boise meridian. That said land so misdescribed was sold by virtue of said levy in one body to said defendant, William Kirkpatrick, for the sum of $ 260. That Julia and Leonard Giggy brought suit against Daniel Ollis, plaintiff herein, obtained judgment on May 29, 1889, for the sum of $ 82.93, and on the same day filed a transcript thereof in the district court of said county. That execution thereon was issued to the sheriff of said county on the said twenty-ninth day of May, 1889. Said execution was placed in the hands of the sheriff of said county on said last-named date, and was by him levied on lots 3, 4 and 5, of section 21, in township 3 south, of range 34 east, of Boise meridian, in said county of Bingham. That the sheriff advertised said land by posting up notices or hand-bills, advertising to sell on the seventh day of August, 1889. That said sale was postponed on the said seventh day of August until the fourteenth day of said August. That said land was sold on the said fourteenth day of August, 1889, to the said William Kirkpatrick for the sum of $ 100. Plaintiff avers that said tract consisted of three separate lots, either of which was worth many times the sum of $ 100. That it was sold in a lump for said sum. Plaintiff asks the court to declare said judgment, transcripts, and sales void; that plaintiff be decreed to be the owner of said lands; and for other relief. Defendant denies that plaintiff ever was the owner of lots 1, 2 and 3 of section 28, in township 3 south, of range 34 east, Boise meridian. Avers the procuring of each of said three judgments; the levy, sale, and purchase thereof by the defendant of the lands hereinbefore described, as set forth; that said judgments, transcripts, and execution sales were valid. Avers that the said H. C. Ollis, for the sole purpose of defeating and defrauding this defendant, and without any consideration, conveyed the said lots 1, 2, and 3 of section 28 aforesaid to plaintiff, Daniel Ollis; that said conveyance is a fraud, and void; that said William Kirkpatrick is the sole and legal owner of said tracts of land, respectively; that plaintiff has no interest therein; and prays that said conveyance from H. C. Ollis to Daniel Ollis be adjudged fraudulent and void, that said defendant be declared the rightful owner thereof, for costs, and general relief. Trial was had before the court without a jury, which resulted in a judgment and decree in favor of the defendant as to the following described land, to wit: Lots 3, 4, and 5, in section 21, township 3 south, of range 34 east, Boise meridian; and, further, the court ordered, adjudged, and decreed that said decree shall and does operate as a full and complete conveyance of the title to said land to the defendant, William Kirkpatrick. The decree also gave judgment against H. C. Ollis, in favor of William Kirkpatrick, for the sum of $ 260, being amount paid by him upon execution sale made on December 15, 1888, with interest thereon at ten per cent per annum till paid, and for costs. Plaintiff moved for a new trial, which being denied, the plaintiff appeals to this court, both from the judgment and the order overruling the motion for new trial. The plaintiff specifies the following particulars in which the evidence is insufficient to justify the findings of fact:

That part of the second finding of fact which says that said conveyance, being the conveyance of H. C. Ollis to plaintiff, on September 7, 1885, is without any consideration, is not supported by any competent testimony, and is contradicted by the testimony of H. C. Ollis. It appears by the pleadings, and by the evidence, that the land attempted to be conveyed by this deed, and which was levied upon, and sold to defendant, William Kirkpatrick, for the sum of $ 260, by virtue of the executions in the cases of Smith & Wright v. H. C. Ollis and William Kirkpatrick v. H. C. Ollis, was described as the east half of the northwest quarter, and lots 1, 2, and 3 of section 28, in township 3 south, of range 38 east, of the Boise meridian, in said Bingham county. It further appears that neither H. C. Ollis, nor the plaintiff, Daniel Ollis, has or ever had any interest in the said tract of land whatever. It follows, therefore, that William Kirkpatrick obtained no interest therein by reason of his purchase at said execution sale.

The question as to whether said deed was fraudulent, and without any consideration, and therefore void, can only be determined in a suit in which H. C. Ollis and the real owner of said land and the plaintiff and defendant in this suit are parties, as they would all be interested in the subject matter of the suit. Without making H. C. Ollis, who had made a deed to...

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4 cases
  • Foore v. Simon Piano Co.
    • United States
    • Idaho Supreme Court
    • May 2, 1910
    ... ... must be sold separately, or offered for sale in ... parcels." (Rev. Codes, sec. 4484; Ollis v ... Kirkpatrick, 3 Idaho 247, 28 P. 435; Odell v. Cox, 151 ... Cal. 70, 90 P. 194.) ... The ... several transactions of the ... ...
  • Coghlan v. City of Boise
    • United States
    • Idaho Supreme Court
    • February 6, 1923
    ...any one of the parcels without being compelled to redeem the others. (Udell v. Kahn, 31 Mich. 195; Lee v. Mason, 10 Mich. 403; Ollis v. Kirkpatrick, supra.) three tracts together after offering three separate tracts, having received no bids, was held to invalidate the sale on the theory tha......
  • American Hydraulic Placer Co. v. Rich
    • United States
    • Idaho Supreme Court
    • June 26, 1902
    ... ... 23 Utah 209, 63 P. 896; Soule v. Dawes, 14 Cal ... 248.) Where facts are before the supreme court, it can render ... or order judgment. (Ollis v. Kirkpatrick, 3 Idaho ... 247, 28 P. 435; Burke etc. L. Co. v. Wells, Fargo & ... Co., 7 Idaho 42, 60 P. 87; Idaho Gold etc. Co. v. U ... M. & ... ...
  • Wooddy v. Jameson
    • United States
    • Idaho Supreme Court
    • November 8, 1897
    ... ... one who is not a party to a proceeding cannot make a motion ... therein. (Estate of Aveline, 53 Cal. 259; Ollis v ... Kirkpatrick, 3 Idaho 247, 28 P. 435.) ... George ... W. Goode, for Respondent ... Where ... the sale has been made ... ...

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