Schuler v. Ford

• Decision Date: 11 March 1905
• Citation: 10 Idaho 739,80 P. 219
• Parties: SCHULER v. FORD
• Court: Idaho Supreme Court

80 P. 219

10 Idaho 739

SCHULER v. FORD

Supreme Court of Idaho

March 11, 1905

PARTIES AND PRIVIES TO A JUDGMENT ARE BOUND THEREBY-WHO ARE PRIVIES.

1. A judgment is conclusive, not only upon those who were parties to the action, but also upon all persons who are in privity with them.

2. A party in possession of land under contract to purchase is not in privity with the party who contracted to sell in the sense that he will be bound by the judgment affecting such property where the action was commenced subsequent to the entering into such contract.

(Syllabus by the court.)

APPEAL from the District Court in and for Washington County. Honorable Geo. H. Stewart, Judge.

Action adversing patent proceedings for title to mining property and to quiet title to an undivided interest claimed by plaintiff. Judgment for defendants, from which judgment and an order denying a new trial plaintiffs appeal. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Alfred A. Fraser, for Appellant.

The defendant in this case, in order to recover, must do so upon the theory that he was a bona fide purchaser of this property without notice of the equities of these plaintiffs at the time he made the purchase; or else he must prove title by adverse possession against the defendants. The evidence in the case clearly shows that he was not an innocent purchaser of the property, as he had notice, even according to his own statement, of the equities of this plaintiff prior to the time he paid the purchase money. (Eversdon v Mayhew, 65 Cal. 163, 3 P. 641.) To entitle a party to protection, as such a purchaser, he must aver and prove the possession of his grantor, the purchase of the premises, the payment of the purchase money in good faith, and without notice, actual or constructive, prior to and down to the time of its payment; for if he had no notice, actual or constructive, at any moment of time before the payment of the money, he is not a bona fide purchaser. (Boone v Chiles, 10 Pet. 210, 213, 9 L.Ed. 400; Wallyn v Lee, 9 Ves. Jr. 32; Scott v. Umbarger, 41 Cal. 419; Taylor v. Ranney, 4 Hill, 624; Wells v. Morrow, 38 Ala. 128; Pearce v. Foreman, 29 Ark. 568; Wilhoit v. Lyons, 98 Cal. 413, 33 P. 335; County Bank v. Fox, 119 Cal. 64, 51 P. 11; Trice v. Comstock, 115 F. 765.) In Davis v. Ward, 109 Cal. 189, 50 Am. St. Rep. 29, 41 P. 1010, the rule is there stated that where a purchaser pays only a part of the purchase price before receiving notice of the equities of another in the property, that he will be protected only to the amount of the purchase price which was paid before receiving notice of such equities, and that he is not an innocent purchaser of the property if he receives notice before final payment is made. (McCauley v. Smith, 132 N.Y. 524, 30 N.E. 997; Smith v. Schweigerer, 129 Ind. 363, 28 N.E. 696; Lindsay v. Freeman, 83 Tex. 259, 18 S.W. 727; Brinton v. Scull, 55 N.J. Eq. 747, 35 A. 843; Watson v. Sutro, 86 Cal. 500, 24 P. 176; Williamson v. Brown, 15 N.Y. 359.) Adverse possession cannot be claimed under a contract or bond for the purchase of real estate. (2 Wood on Limitations, 2d ed., sec. 260, p. 649.) The judgment introduced in evidence in this case is conclusive between these plaintiffs and the defendant, George Wirtz, as the court in the state of Washington acquired jurisdiction of the said Wirtz. And the rule is well settled that the judgment of a sister state can only be inquired into on the question of jurisdiction. (2 Story's Equity Jurisprudence, secs. 895, 895a; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, and cases there cited.) Counsel for plaintiffs contend that under the facts in this case and the law as herein set forth, that they have a claim for a one-sixth interest in the Summit Mine superior to any title that the defendant, E. D. Ford, may have by reason of the bond to purchase said property, and upon which he had paid out no money prior to receiving notice of the claim of these plaintiffs. Possession of real property, under an executory contract, is not such possession as will constitute an adverse possession within the statute. (2 Wood on Limitations, 2d ed., sec. 260, p. 649; Gilbert v. Sleeper, 71 Cal. 290, 12 P. 172.)

W. E. Borah, for Respondents.

We call attention to the fact, in the first place, that this contract of purchase was made July 27, 1897, and possession of the property taken thereunder some nine months previous to the commencement of the suit in the state of Washington. The holder of this contract of purchase and their successors in interest had therefore acquired their interest, their property right, long prior to the commencement of the suit. They could not be deprived of their right to purchase, of their property right, without their day in court. While the judgment might establish, as between the plaintiffs in said suit and Wirtz, that the said Wirtz had no title and no right to sell said property, yet upon this question the defendants having a contract of purchase would be entitled to be heard. As we understand the law, the parties claiming an interest in this property cannot be in any manner affected by the judgment to which they were not parties or in privity with anyone who was a party, and they are not in privity with anyone unless they acquired their interest from that party subsequent to the commencement of the suit; neither would they be in privity with the estate unless they acquired their interest in the estate or property subsequent to the commencement of the suit. One cannot be a privy in an estate under a judgment or decree unless he derived his title to the property in question subsequent to and from some party who is bound by said judgment or decree. (Herman on Estoppel, secs. 145, 146, pp. 155, 156; Barrel v. Title etc. Co., 27 Or. 77, 39 P. 992; Coleman v. Hunt, 77 Wis. 263, 45 N.W. 1085; Chester v. Bakerfield etc. Assn., 64 Cal. 42, 27 P. 1104.) Every person is entitled to his day in court before his rights can be concluded by its judgment, and until a person is made a party to a suit and is offered a reasonable opportunity of being heard, the court has no right to devest him of his vested right. (1 Herman on Estoppel, sec. 182, p. 201, secs. 185, 186, pp. 205, 206; McCoy v. McCoy, 29 W.Va. 794, 2 S.E. 809.) A judgment in an action to recover real property operates as an estoppel or res judicata as to all those in the case served with process of the court therein and as to all parties claiming under them who acquired their interest subsequent to the bringing of the suit. (Provident etc. Co. v. Marks, 6 Kan. App. 34, 49 P. 625; Lattie v. Holiday, 27 Or. 175, 39 P. 1102; Williams v. Sutton, 43 Cal. 65; 2 Jones on Evidence, sec. 603.) Persons not parties to a suit and in possession before it was brought, or those claiming under them, could not be ousted of their possession because their distinct title had not been tried. (Sampson v. Ohlyer, 22 Cal. 207; Moulton v. McDermott, 93 Cal. 660, 29 P. 259; Ex parte Reynolds, 1 Caines, 500; Campbell v. Hall, 16 N.Y. 575; Hart v. Moulton, 104 Wis. 349, 76 Am. St. Rep. 881, 80 N.W. 600; Coles v. Allen, 64 Ala. 105; Winslow v. Grindal, 2 Greenl. 64; Powers v. Heath, 20 Mo. 319; Bartero v. Real Estate Sav. Bank, 10 Mo.App. 76.) The principles for which we are contending "are fundamental; that in order that a judgment be binding upon a party he must either be a party to it or privy to someone who was a party, and in order to be such he must have acquired an interest in the property subsequent to the commencement of the suit." (24 Ency. of Law, 2d ed., pp. 746-748; Sorenson v. Sorenson (Neb.), 98 N.W. 837; Hays v. Marsh, 123 Iowa 81, 98 N.W. 605; Keokuk etc. Ry. Co. v. Scotland County, 152 U.S. 317, 14 S.Ct. 608, 38 L.Ed. 457; Carroll v. Goldschmidt, 83 F. 508, 27 C. C. A. 566; Austin v. Hoxsie (Fla.), 32 South, 878; Garrison v. Savignac, 25 Mo. 47, 69 Am. Dec. 448; Georges v. Hufschmidt, 44 Mo. 179; State v. Cin. Co., 66 Ohio St. 182, 64 N.E. 68; 2 Black on Judgments, secs, 549, 600; 1 Freeman on Judgments, sec. 154; Bensinur v. Fell, 35 W.Va. 16, 29 Am. St. Rep. 774, 12 S.E. 1078; Henry v. Wood, 77 Mo. 281; Koontz v. Kaufman, 31 Mo.App. 409, 14 S.W. 307; Winston v. Starke, 12 Gratt. 317; Bradford v. Knowles, 78 Tex. 109; Boling v. Howell, 93 Ind. 320; Ellis v. LeBow, 96 Tex. 532, 74 S.W. 528.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

The facts are stated in the opinion.

AILSHIE, J.

STATEMENT OF FACTS.

The history of the transaction covered by this case and material to be considered in its determination are covered by the findings of fact made and filed by the trial judge, and are as follows:

1. "That upon the twenty-third day of April, 1898, an action was commenced in the superior court of the state of Washington, in and for the county of Spokane, by Nathan Toklas; H. W. Bonne, Ed. Erp. Brockhausen, C. J. Kemp, and Harry E. Schuler were plaintiffs, and Geo. Wirtz, John Welch E. D. Ford, John Henderson, Joseph Phillips and the Traders' National Bank of Spokane, Washington, were defendants; that neither John Welch, F. D. Ford, John Henderson nor Joseph Phillips were served with summons or process in said action, and neither of them appeared in said action at any time by attorney or otherwise; that said cause was tried October 19, 1898, as against the defendant, George Wirtz; that findings of fact, conclusions of law and decree were entered, said decree bearing date February 16, 1900; that to said decree it was recited and decreed inter alia 'that this cause was dismissed as to the defendants, John Welch and E. D. Ford, John Henderson and Joseph Phillips without prejudice,' and it was further decreed in substance that the plaintiffs were entitled to a decree for an undivided two-thirds...