Ridpath v. Heller

• Citation: 129 P. 1054,46 Mont. 586
• Parties: RIDPATH v. HELLER ET AL.
• Decision Date: 29 January 1913
• Court: United States State Supreme Court of Montana

129 P. 1054

46 Mont. 586

RIDPATH v. HELLER ET AL.

Supreme Court of Montana

January 29, 1913

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

Action by William M. Ridpath against August Heller and another. Judgment for plaintiff, and defendants appeal. Reversed.

Sidney M. Logan, of Kalispell, and Henry C. Smith, of Helena, for appellants.

SANNER J.

Action to recover for the breach of a warranty against incumbrances. A demurrer to the complaint and an objection to the introduction of any evidence under it were overruled, and, at the close of the evidence for the respondent, a motion for nonsuit was denied. Respondent had judgment according to the prayer of the complaint, and from that judgment and from an order overruling their motion for a new trial defendants appeal. The principal questions presented are (1) the sufficiency of the complaint, and (2) the admissibility of oral testimony by an attorney to establish the law of a sister state.

1. The complaint alleges that on July 16, 1899, the appellants sold and granted to respondent "by deed duly acknowledged in fee simple" certain lots in the city of Spokane; that said deed contained a convenant that the premises were free from all incumbrances, except taxes for the year 1898; that at the time said deed was made and delivered the said premises were not free from all incumbrances except taxes for 1898, but "were subject to a tax, charge or assessment theretofore duly assessed, charged and confirmed by the city of Spokane * * * and by the proper officers thereof, in the sum of $463.03," and which was "a lien and incumbrance by law upon the said premises," that by reason thereof, and "to extinguish said tax or assessment and to protect said premises from the lien thereof and the enforcement of the same," plaintiff was obliged to and did pay $722.33, for which amount judgment is prayed with costs. It will be noted that the supposed incumbrance referred to is born of some kind of tax or assessment imposed by the city of Spokane. What the legal status of the city of Spokane is, what kind of tax, charge, or assessment it imposed upon the property, what power it had to impose such a tax or assessment, how such power must be exercised, how it was exercised, and how the tax or assessment came to be a lien or incumbrance, are matters concerning which the complaint is silent.

No extended discussion is needed to demonstrate the utter deficiency of such a complaint. A lien or incumbrance is not averred by the mere naked allegation of its existence. The facts should be fully stated. 25 Cyc. 684, par. 3; 13 Ency. Pl. & Pr. 124, par. 2; McGlauflin v. Wormser, 28 Mont. 177, 72 P. 428. To say, in the absence of other allegations, that the real property was "subject to a tax, charge or assessment duly assessed, charged and confirmed" which was "a lien and incumbrance by law," is to recite a series of mere legal conclusions ineffective for any purpose as a pleading. Nor does it specially aid the matter, if we assume that the city of Spokane is a municipal corporation of the state of Washington. Nowhere outside of the law of Washington can there be anything which empowers the city of Spokane to levy...