Richardson v. King

• Decision Date: 09 April 1932
• Docket Number: 5784
• Citation: 10 P.2d 323,51 Idaho 762
• Parties: FRED L. RICHARDSON and JAY LEONARD, Appellants, v. WILLIAM T. KING, BERT KING and MRS. BERT KING, Respondents
• Court: Idaho Supreme Court

10 P.2d 323

51 Idaho 762

FRED L. RICHARDSON and JAY LEONARD, Appellants, v. WILLIAM T. KING, BERT KING and MRS. BERT KING, Respondents

No. 5784

Supreme Court of Idaho

April 9, 1932

UNLAWFUL DETAINER-CHARACTER OF ACTION.

1. Title is not involved in unlawful detainer action (C. S sec. 7322).

2. In unlawful detainer action, sole question involved is right of possession, and no other issues may be injected.

3. Judgment in unlawful detainer action that deed given by defendants to plaintiff was in effect mortgage, that defendants were entitled to possession, and plaintiff should recover nothing, held outside issues.

4. In unlawful detainer action, evidence held to sustain finding relation of landlord and tenant did not exist.

5. No rental being alleged or proved in unlawful detainer action court could not find defendant was in default in payment of rent or obligated to give over possession of property (C. S sec. 7335).

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. C. J. Taylor, Trial Judge.

Action for unlawful detainer. Judgment for defendants. Affirmed as modified.

Judgment affirmed. No costs awarded.

E. W. Whitcomb, for Appellants.

Equity and good conscience require the respondent, if he claims the deed executed by him absolute on its face is a mortgage, should not be permitted to secure judgment in his favor without tendering the amount of the debt with interest and keeping this tender good by seasonably placing the amount of money due into court or with the clerk thereof. (Shaner v. Rathdrum State Bank, 29 Idaho 576, 586, 161 P. 90; Machold v. Farnan, 20 Idaho 80-85, 117 P. 408.)

E. H. Casterlin, for Respondents.

If a debt is paid by delivery of a deed then it is not a mortgage, but if the debt is not paid but the time of payment is extended then the deed is a mortgage. (Investors' Mortgage Security Co., Ltd., v. Hamilton, ante, p. 113, 4 P.2d 347.)

In an action for unlawful detainer the defendant cannot counterclaim or cross-complain; only the question of possession is at issue. (Obermeyer v. Kendall, 38 Idaho 283, 220 P. 751.)

GIVENS, J. Lee, C. J., and Budge, Varian and Leeper, JJ., concur.

OPINION

GIVENS, J.

This action was originally instituted in the probate court, as unlawful detainer, expressly under C. S., sec. 7322, but after the answer was filed, at the desire of both parties, removed to the district court, because as they stated title to real estate was involved. Thereafter, and by reason of the matters considered at the trial, the judgment entered, and the contentions on appeal, it is a little difficult to determine just what the nature of the action became, because title is not involved in an unlawful detainer suit. (Reay v. Cotter, 29 Cal. 168; Felton v. Millard, 81 Cal. 540, 21 P. 533, 22 P. 750; Knowles v. Murphy, 107 Cal. 107, 40 P. 111; Thomson v. Reynolds, 53 Utah 437, 174 P. 164; Williams v. Nelson, 65 Utah 304, 237 P. 217.)

The appellants alleged in substance that about March 14, 1930, respondent William T. King (the other respondents were nominal only, and need not be mentioned or considered further) gave his note to appellants, dated March 7, 1930, due in thirty days, which, together with a deed made by appellants to respondent, was placed in escrow in the Citizens National Bank of Salmon, with directions that on the payment of the note the bank was to deliver the deed and note to respondent King; if he failed to pay the note, the note was to be delivered to him, and the deed delivered to appellants. That thereafter, all parties appeared at the bank, the note was not paid, and the deed was returned to appellants and the note to King, and that thereafter the appellants permitted King and his brother and sister-in-law to remain upon the premises; that notice was served upon them to quit, under C. S., sec. 7322, and deliver over the premises; having failed and refused to do so, restitution of the premises was asked, and damages for the unlawful detention in the amount of $ 50.

The answer in substance alleged that prior to March 7, 1930, the premises had been deeded to Lemhi county because of the unpaid taxes thereon; that on that day the respondent King borrowed from appellants the sum of $ 562.26, the amount necessary to redeem from said taxes, which amount was so paid for the redemption, and a redemption deed issued to King from the county, on that day; that also on that day, King gave a warranty deed to the premises to appellants, and a note due in thirty days for $ 581.26, the difference between the note and the amount paid to redeem being certain expenses, recording fees, attorneys' fees, etc., in connection with the drawing and recording of the deeds and papers involved; that thereafter an agreement was entered into between the same parties, but as part of the same transaction, whereby the appellants agreed to reconvey the premises to King upon payment of the note in question; that thereafter, on April 7, 1930, the defendant arranged to borrow money to pay the note; that the appellants fraudulently induced him to allow the matter to remain quiescent, on the alleged false representation that they would carry him for the amount of the note; that thereafter, on May 5, 1930, the appellants fraudulently induced King to allow the papers to be withdrawn from the bank; that they stated they would still continue to carry him for the indebtedness, and alleged that the transaction in fact amounted to a mortgage to secure the payment of the amount paid, and that the transaction, except as a mortgage, and for the $ 581.26, was without value or consideration to respondent; that the premises were reasonably worth $ 2,000; and respondent asked that appellants take nothing by their complaint.

The court found that the transaction amounted to a mortgage, and entered a decree to that effect; that the appellants recover nothing; that respondent King was entitled to the possession of the premises and his costs, and that the instruments, the note and agreement above referred to were, except as a mortgage, without consideration.

Appellants have assigned several errors, in substance, however, only two: That the evidence is insufficient to prove that the transaction amounted to a mortgage rather than an outright sale of the premises by King to appellants, with an agreement to purchase back which he did not perform, and that equity required on his part an offer to redeem from the mortgage, under the doctrine of Machold v. Farnan, 20 Idaho 80, 117 P. 408, and Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90.

The...