Rexburg Lumber Company, a Corp. v. Purrington, 6868

• Decision Date: 01 May 1941
• Docket Number: 6868
• Citation: 62 Idaho 461,113 P.2d 511
• Parties: REXBURG LUMBER COMPANY, a corporation, Respondent, v. ROBERT W. PURRINGTON and ELVA PURRINGTON, husband and wife, Appellants
• Court: Idaho Supreme Court

113 P.2d 511

62 Idaho 461

REXBURG LUMBER COMPANY, a corporation, Respondent, v. ROBERT W. PURRINGTON and ELVA PURRINGTON, husband and wife, Appellants

No. 6868

Supreme Court of Idaho

May 1, 1941

EXECUTION-SALE-NOTICE-DESCRIPTION OF PROPERTY-JUDGMENT CREDITOR AS PURCHASER-TITLE AND RIGHTS-TRUSTS, CREATION OF-CONSIDERATION PAID FOR TITLE IN ANOTHER-ACTION TO QUIET TITLE-PLEADING-RELIEF GRANTED.

1. Notice of sale on execution which referred to lot as platted in town within the county and stated that the sale would take place there at the sheriff's office was not insufficient because of failure to contain a direct statement that the land was in such county.

2. In a quiet title suit, each party must recover on the strength of his own, not the weakness of the other's title.

3. Where an execution creditor who purchases at his own sale merely credits on his judgment the amount of the purchase price instead of paying the money, he is not a "bona fide purchaser" because he has parted with nothing.

4. An execution creditor who at his own sale purchased property involved without payment of any money acquired only the title of execution debtor.

5. The title of execution debtor was subject to all existing equities and where judgment creditor who purchased at his own execution sale, was not a bona fide purchaser, the test of title was between execution debtor and claimants of title through him.

6. Where one pays the purchase price for real property though title be taken in the name of another, a "trust" arises, impressed upon the land, in favor of such party paying the purchase price.

7. Trust arising in favor of one paying purchase price of land title to which was taken in name of another, may rest in parol.

8. In action involving trust in favor of one paying for land evidence sufficiently traced trust funds.

9. In action involving trust in favor of person paying purchase price for land where evidence did not clearly disclose that beneficiary paid all the purchase price but indicated that he paid the major portion of it, a "pro tanto trust" was established.

10. Where judgment creditor was not a bona fide purchaser at his own sale and proof showed that most of the purchase price of land involved had been paid by another and amount of the judgment was small as compared with value of property, the judgment should be paid out of judgment debtor's interest in the property on theory that equity delights to do justice and suffers no wrong without a remedy.

11. Delay in disclosing claim to property sold at execution sale may be considered in determining the equities.

12. In action to quiet title where defendants merely alleged they had title and were entitled to possession but did not by cross-complaint or otherwise ask for affirmative relief title could not be quieted in defendants.

APPEAL from the District Court of the Ninth Judicial District for Madison County. Hon. C. J. Taylor, Judge.

Respondent brought action to quiet title to certain real property. From a judgment for respondent appellants appeal. Reversed and remanded with instructions.

Reversed and remanded with directions. No costs awarded.

W. A. Ricks and B. A. McDevitt, for Appellants.

The notice of sale and the sale itself are null and void because the notice of sale does not contain the state and the county where the property to be sold is located. (Helmer v. Rehm, (Neb.) 15 N.W. 344; Burrows v. Gibson, (Mich.) 3 N.W. 293; Cadwalader v. Nash, (Cal.) 14 P. 385.)

Resulting trust arises by operation of law in favor of person who advances purchase money for land, though title be taken in name of another; or in favor of person for whom it is advanced by way of a loan, title being taken in the name of lender. Such trust, being one which results by implication or construction of law, does not fall within the provisions of the statute of frauds and may be established by parol evidence. (Pittock v. Pittock, 15 Idaho 426; Coughanour v. Grayson, 19 Idaho 255.)

C. W. Poole, and W. Lloyd Adams, for Respondent.

The description of the property in a sheriff's notice of sale is sufficient to meet the requirements of the statute, if the description given is sufficiently complete and certain as to inform prospective bidders of the identity of the property to be sold. It is not necessary to the validity of the notice, that the descriptive clause state the name of the county or state, if the notice as a whole identifies the county and state where the property is located. (21 Am. Jur., page 98, sec. 190, note 16; 23 C. J., page 639, note 8; Anglo-California Bank v. Cerf, 75 P. 903, 904; Everts v. Fawcett Co., 74 P.2d 815, 818; Mitchell v. Alpha Hardware & Supply Co., 45 P.2d 442, 444; Duncan v. Matney, 29 Mo. 368, 77 Am. Dec. 575.)

A resulting trust can arise only, if it arises at all, at or before the time the purchase is made, or at the inception of the transaction in which the property is acquired, and will not be implied by any state of facts which develop afterward. (65 C. J., page 371, sec. 145; 26 R. C. L., page 1223, sec. 68; Rice v. Rigley, 7 Idaho 115, 127-129; Pittock v. Pittock, 15 Idaho 426, 432; Hunter v. Field, 169 S.W. 813, 816, 114 Ark. 128.)

To establish title as a resulting trust by parol, the evidence "must be so clear and certain as to leave no well-founded doubt upon the subject." (Rice v. Rigley, 7 Idaho 115, 127-129; Marrow v. Mathews, 10 Idaho 423, 432; Quirk v. Bedal, 42 Idaho 567, 591; Walker v. Jackson, 48 Idaho 18-26; Oregon Lumber Co. v. Jones, 58 P. 769, 770.)

One who enters into a valid contract with the owner of real property for the purchase of the property, pays a part of the purchase money, and enters into possession of the property under his contract, acquires, holds, and owns the equitable title to the property, the vendor holding the legal title in trust for the purchaser and being bound to deliver the legal title to the purchaser upon performance of the contract. (27 R. C. L., page 464, sec. 178; 66 C. J., page 1028, sec. 773; Finkbohner v. Glens Falls Ins. Co., (Cal.) 92 P. 318, 319, 320; Thompson Yards v. Bunde, (N. D.) 196 N.W. 312, 30 A. L. R. 538, 540.)

GIVENS, J. Budge, C. J., and Morgan, Holden and Ailshie, JJ., concur.

OPINION

GIVENS, J.

November 30, 1933, the Investors Finance Company, a corporation, agreed to sell to Bert Riley, a lot in Rexburg for $ 1500, $ 150 down and the balance in monthly installments of $ 50. Riley took possession and made partial payments until 1936 when he was in default. Thereupon, February 8, 1936, the Investors Finance Company assigned its interest in the contract to Mary Smith, Esqs. of Rexburg and August 24, 1936, after crediting him with all he had paid on the purchase price, a new sales contract was entered into by her with Riley for the principal sum of $ 932.37, payable $ 170 in cash and the balance, $ 762.37, in $ 50 monthly installments.

December 15, 1937, respondent recovered a judgment against Riley in the Probate Court of Madison County, of which Rexburg is the county seat, for $ 132.89 and $ 21.15 costs which was filed with the clerk of the district court in that county January 14, 1938, and execution issued thereon January 20, 1938. In compliance with said writ the sheriff sold the property involved February 18, 1938, to respondent. The sheriff's return reciting:

"That said bid was made by said judgment creditor to apply upon the judgment named in said Execution, and I therefore received no money at said sale, except costs, and that I did thereupon issue and deliver to said The Rexburg Lumber Company, a corporation, judgment creditor, a Certificate of Sale of said real property so sold, subject to redemption, and that I caused to be filed for record in the office of the County Recorder of said County, a duplicate of said Certificate of Sale. That said bid represented the whole amount due upon said Execution, together with my costs in the sum of $ 22.35 and I therefore herewith return said Writ of Execution fully satisfied."

Certificate of sale was issued the same day. The year's period of redemption expired February 21, 1939, and October 21, 1939, the suit herein was instituted by respondent against appellants, husband and wife, and Riley and his wife and other then defendants to quiet title to, and for possession of, said lot. All defendants except appellants defaulted.

Appellants contend that January 19, 1934, appellant R. W. Purrington purchased from Riley, his father-in-law, a half interest in said lot by then advancing $ 100 and thereafter half of the then monthly payments, i.e. $ 15 a month. That later upon discovering Riley was not making his payments or properly applying as payments the money given him by Purrington as his share to apply on the payments due on the contract, the entire property was, January 1, 1937, sold by Riley to Purrington.

Part of the balance due Mary Smith on her contract was, under instructions from Riley, paid directly to Mary Smith by the tenants of the building on the lot.

Purrington concedes he never claimed or mentioned his interest to Mary Smith or respondents until after the suit was filed herein. Purrington introduced in evidence cancelled checks for part of the money he claimed he gave Riley to be applied on the purchase price.

Defendants' Exhibit 8, a check for $ 250 to Riley by Purrington, dated November 10, 1937, at the time the new contract was made between Mary Smith and Riley, endorsed by Mary Smith, was, as shown by W. L. Adams, Esq., witness for respondent, thus applied: $ 50 to W. L. Adams for his attorney's fee (evidently in the settlement of the contract by the Investors Finance Company and new contract between Mary Smith to Riley), $ 50 returned to Riley and $ 150 to Mary Smith on her contract, thus as part...