Piccolo v. Tanaka
| Decision Date | 11 March 1927 |
| Docket Number | 6037. |
| Citation | 253 P. 890,78 Mont. 445 |
| Parties | PICCOLO et al. v. TANAKA et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Robert C. Stong Judge.
Action by Gabriel Piccolo and another against Hugh Tanaka, the Davies Real Estate Company, and others. From judgment for plaintiffs, second named defendant appeals. Affirmed.
Wood & Cooke, of Billings, for appellant.
William V. Beers, of Billings, for respondents.
On motion for a rehearing, the original opinion rendered January 27, 1927, is withdrawn, and this one ordered substituted. The result reached is the same as before.
This is an action to quiet title to certain real estate in Yellowstone county. Upon issue joined by an answer filed in the action by the defendants T. Ogoshe and Davies Real Estate Company, and after reply thereto, the cause was tried to the court without a jury. After the submission of all evidence offered by the parties, the case was taken under advisement by the court, and later the court made and filed its findings of fact and conclusions of law in favor of the plaintiffs upon which judgment was regularly entered. The appeal is from the judgment.
The only question presented necessary for decision by the appellant's assignment of errors, is whether the evidence is sufficient to support the judgment.
From the undisputed testimony it appears that on January 28, 1921 one Hugh Tanaka, a single man, was the owner of the real estate involved. On that date he entered into a written contract with the plaintiffs for the sale of such land to them, whereby they were to pay therefor the sum of $3.500; $800 of the agreed purchase price was paid down at the time of the execution of the contract, in accordance with the terms thereof, it being agreed that the balance should be paid in installments covering a terms of years, with interest on the deferred payments at the rate of 6 per cent. per annum, and upon final payment a deed was to be executed conveying title to the plaintiffs. This contract was filed for record, and recorded on April 3, 1922. Immediately upon the execution of the contract, the plaintiffs moved upon the land, and have ever since resided thereon, and engaged in farming it. On March 16, 1921, Tanaka, by a written instrument, assigned all of his rights under the contract to the Security Trust & Savings Bank as security for the payment of his indebtedness to that bank, which was greater in amount than the total sum due from the Piccolos. This assignment was never recorded, and it does not appear that the transaction was known to any of the parties other than Tanaka, the plaintiffs and the bank, prior to the trial. Tanaka was indebted to Frank T. Uyeda for labor, and on October 12, 1921, in adjustment of the indebtedness, deeded the land involved to Uyeda, so that the latter would be able to collect the balance due from the plaintiffs on their contract for the purchase of the land, and apply the same in satisfaction of the indebtedness. This deed was placed on record April 4, 1925, prior to the date of the commencement of this action. The sale of the land to the Piccolos was negotiated through R. M. Davies, president of the appellant company, the first payment being made to him at the time of the execution of the contract, and the signatures to the contract were witnessed by him. The dealings between Tanaka and Uyeda were also made through Davies. With respect thereto Davies says that he took part in the negotiations leading up to the execution of a deed by Tanaka to Uyeda, and was present when it was signed and delivered. He testified:
On or about January 29, 1924, Tanaka and Uyeda left Montana for parts unknown, and have never been seen nor heard of since, and their whereabouts is not known. On February 29, 1924, the land was attached in an action brought by the appellant company against Frank T. Uyeda to recover commissions on the transaction whereby Tanaka deeded the land to Uyeda. Davies testified:
That action was prosecuted to final judgment, regularly entered on April 17, 1924, and the land was sold at execution sale, on March 7, 1925, to the appellant for the sum of $2,500. Sheriff's certificate of sale of the lands to the appellant was thereupon regularly issued. On November 28, 1924, the bank collected from the Piccolos the sum of $1,350 of the amount then due on their contract to purchase the land, approximately $2,600, and received from the bank a receipt acknowledging full payment of the amount due on the contract, wherein it is recited:
"This bank agrees to start at once and obtain a proper deed conveying the said land under the above described contract."
And it appears that Tanaka is still indebted to the bank. The appellant claims prior and superior right to the land as the successor to the rights of Uyeda by virtue of the sheriff's certificate of sale of the property on execution. The following chronological arrangement of dates will be aidful in arriving at a proper determination of the legal rights of the plaintiffs and the appellant, viz.:
1. Tanaka contract with Piccolos ........... January 28, 1921
2. Tanaka assignment of contract to bank ... March 16, 1921
3. Tanaka deed to Uyeda .................... October 12, 1921
4. Tanaka contract with Piccolos recorded .. April 3, 1922
5. Tanaka and Uyeda departed ............... January 29, 1924
6. Davies attachment ....................... February 29, 1924
7. Davies judgment ......................... April 17, 1924
8. Piccolos paid bank ...................... November 28, 1924
9. Certificate sheriff's sale to Davies .... March 7, 1925
10. Tanaka deed to Uyeda recorded ........... April 4, 1925
11. This action instituted .................. September 5, 1925
The court found that on January 28, 1921, Hugh Tanaka was the owner of the land in question, and that on that date he sold and agreed to convey the same to the plaintiffs by a contract in writing for the purchase price therein agreed upon; that on March 16, 1921, Tanaka assigned and delivered the contract to the Security Trust & Savings Bank of Billings as security for an indebtedness he was then owing to that bank, and as collateral for such further indebtedness as he might thereafter incur to the bank; that the bank was the owner and holder of the contract up to the time it made settlement with the plaintiffs; that, at the time Tanaka assigned the contract to the bank, his indebtedness was in excess of $3,000; that the amount due on the contract was $2,700 and interest; that the plaintiffs paid the interest which accrued on the contract, and also all taxes on the land described therein; that on November 28, 1924, they paid to the bank the sum of $1,350, which was accepted in full discharge of the payments the plaintiffs were required to make under the terms of the contract; that, at the time of such settlement, Tanaka was indebted to the bank in an amount in excess of $3,000 and that the payment made to it by the plaintiffs of $1,350 was by it credited on Tanaka's indebtedness; that on October 12, 1921, Tanaka executed a deed to Frank T. Uyeda for the land described in the contract, herein involved, which was recorded on April 4, 1925; that, at the time of the execution of the deed, Tanaka informed Uyeda and R. N. Davies, of the Davies Real Estate Company, that the land was subject to his contract made with the plaintiffs; that at that time the plaintiffs were in possession of and residing on the land, which facts were known to Uyeda and Davies; that Uyeda never made any demand on the plaintiffs, or either of them, for the payments due under the contract, and the plaintiffs had no knowledge of the land having been deeded to Uyeda at the time they settled with the bank; that the defendant Davies Real Estate Company, in an action against the defendant Frank T. Uyeda, levied an attachment on the lands involved herein on February 29, 1924, and subsequently obtained a judgment against Uyeda, and thereafter became the...
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