Roberts v. Harrill
| Decision Date | 29 May 1926 |
| Citation | 42 Idaho 555,247 P. 451 |
| Parties | F. E. ROBERTS, Respondent, v. GEO. P. HARRILL, Appellant |
| Court | Idaho Supreme Court |
VENDOR AND PURCHASER - CONDITION PRECEDENT TO PAYMENT OF PROMISSORY NOTE-CONSIDERATION FOR CONDITION PRECEDENT-ACTION PREMATURELY BROUGHT.
1. Provision on back of note that note was to be payable only after removal of certain lien on property was condition precedent to payment of note.
2. Lien on property held sufficient consideration for provision in note for purchase price that it was payable only after removal of lien, and that within one year from date, if lien was not removed, maker would have lien removed and pay balance, and action on note before expiration of year was premature, even though lien was removed by operation of law under C. S., sec. 7349, since section 6961 authorizes action to quiet title.
APPEAL from the District Court of the Sixth Judicial District, for Bingham County, Hon. Ralph W. Adair, Judge.
Action on a promissory note. Judgment for plaintiff. Reversed.
Judgment reversed and costs awarded to appellant.
Hamilton Wright, for Appellant.
The agreement, or special contract, between the parties, as evidenced by the writing on back of the note, was a condition precedent. (Beck v. Payne, 34 Idaho 408, 202 P 569.)
If a stipulation in a contract is a condition precedent, the obligee may repudiate the contract if the obligor does not perform the condition. (Lowber v. Bangs, 69 U.S 728, 17 L.Ed. 768.)
No excuse will exonerate one from the performance of a condition precedent unless it be a positive interference and actual hindrance by the other party, or some distinct and tangible fraud. (Taylor v. Gallup, 8 Vt. 340.)
Although the lien mentioned on back of the note was apparently barred by the statute of limitations, it was nevertheless a cloud on appellant's title. (Kinsman v. Spokane, 20 Wash. 118, 72 Am. St. 24, 54 P. 934.)
Lewis A. Lee, for Respondent.
The lien filed against the property never did and does not now constitute a lien on appellant's property. (C. S., sec. 7344.)
Lien extends only to such right, title and interest as the owner had in the property at the time the lien attached. (Smith v. Faris-Kesl Construction Co., 27 Idaho 407, 150 P. 25.)
Under C. S., sec. 7349, a mechanic's lien does not continue unless proceedings are commenced in a proper court against the person, or persons, against whose interests the lien is asserted within the time limited by statute. (Western Loan & Bldg. Co. v. Gem State Lumber Co., 32 Idaho 497, 185 P. 554; Boise-Payette Lumber Co. v. Weaver, 40 Idaho 516, 234 P. 150.)
This action was to enforce payment of a promissory note given as the balance due on the purchase price of a certain lot, payable on demand, subject to the following condition appearing upon the back of the note:
This was a condition precedent to payment of the note. (Beck v. Payne, 34 Idaho 408, 202 P. 569.)
Respondent contends that conceding that at one time there was a valid lien against the property, it had been removed by operation of law, no action having been commenced for the foreclosure of the lien within the limit fixed by C. S., sec. 7349. The lien was recorded. C. S., sec. 6961 authorizes an action to quiet title. Considering a similar statutory provision the Washington supreme court has said:
"It is an unquestioned fact that under our present system of registration laws, where records are so universally and entirely relied upon to show the character of the title, a matter of record adverse to the title of one seeking to convey, although seemingly void on its face, or which apparently could not be enforced in consequence of the statute of limitations, would yet injuriously affect the value of the real owner's title, and he should be permitted to have the same removed as a cloud where rights adverse to his interests are claimed under it; and independent of the statute, we should approve of the reasoning of the learned author (Pomeroy) against the rule." (Kinsman v. City of Spokane, 20 Wash. 118, 72 Am. St. 24, 54 P. 934; Bird Timber Co. v. Snohomish County, 88 Wash. 90, 152 P. 689; Empire Ranch & Cattle Co. V. Wilson, 24 Colo. App. 83, 131 P....
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Twin Falls Canal Company v. Huff
... ... First, the statute there considered made no ... provision for appeal, whereas the statute herein does, and ... this court held in Roberts v. Harrill, 42 Idaho 555, ... 247 P. 451, there could be independent court action, and the ... California court considered this important, saying: ... ...
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