Seeley v. Goodwin

• Citation: 156 P. 934,39 Nev. 315
• Decision Date: 19 April 1916
• Docket Number: 2187.
• Parties: SEELEY v. GOODWIN ET AL.
• Court: Supreme Court of Nevada

156 P. 934

39 Nev. 315

SEELEY v. GOODWIN ET AL.

No. 2187.

Supreme Court of Nevada

April 19, 1916

Appeal from District Court, Humboldt County; Edward A. Ducker Judge.

Action by F. E. Seeley against James Goodwin and others. From a judgment in favor of defendant E. J. Lupin and order denying new trial, plaintiff appeals. Reversed.

R Gilray, of Winnemucca, and J. M. Frame, of Reno, for appellant.

J. A Callahan and C. E. Robins, both of Winnemucca, for respondent Lupin.

T. A Brandon, of Winnemucca, for other respondents.

NORCROSS C.J.

This is a suit in foreclosure of a mortgage upon certain real property in the town of Winnemucca. From a judgment in favor of the defendant E. J. Lupin, the plaintiff has appealed.

From the pleadings and evidence in the case it appears that on the 16th day of March, 1909, at San Francisco, state of California, one James Goodwin, named as a defendant in the complaint, gave his promissory note to one Louis Goldstone, a resident of said city and state, for the sum of $175, payable with interest 60 days after date. At the same place and date the said Goodwin gave to said Goldstone a mortgage upon certain lots belonging to Goodwin in the town of Winnemucca as security for the payment of said note. The note and mortgage were signed by Goodwin, and the execution of the mortgage was acknowledged as of even date before a notary public in and for the city and county of San Francisco. The mortgage was duly recorded at the request of said Goldstone by the county recorder of Humboldt county in the records of said county on the 24th day of March, 1909. It is alleged in the complaint and shown by the evidence that on the 4th day of March, 1910, the said Louis Goldstone, for a valuable consideration, assigned and transferred the said note and mortgage to the plaintiff and appellant, F. E. Seeley.

It appears from the pleadings and evidence that on the 19th day of March, 1909, three days subsequent to the execution of the mortgage, and five days before the recording thereof, the defendant J. W. Ferguson instituted a suit in the justice's court in the town of Winnemucca against the said James Goodwin, and attached the property of the defendant Goodwin described in the mortgage. Having recovered judgment in the attachment suit, the property attached was sold by the constable in satisfaction of the judgment, purchased by the said Ferguson at the constable's sale, and a constable's deed granted to said Ferguson on the 26th day of November, 1909. On the 27th day of May, 1909, the said Goodwin deeded the property to the defendant A. L. Wagner. On the 10th day of February, 1911, the said J. W. Ferguson deeded the property to the defendant J. E. Kendall. On the 25th day of March, 1912, the defendant Kendall deeded the property to the respondent Lupin.

In addition to denying, on information and belief, the making or execution of the note or mortgage by Goodwin, the answer of defendant Lupin set up the following affirmative defenses:

(a) That the note and mortgage were void because made, executed, and delivered at a time when the said Goodwin was entirely irresponsible and incapable of entering into a valid contract by reason of drunkenness.

(b) That, the property having been attached prior to the recording of the mortgage and subsequently sold by the constable in the attachment suit, the rights of the plaintiff were subordinate to the rights of the defendant Lupin.

The case was tried to the court with the aid of a jury, to which were referred two questions, which, together with the answers returned, read as follows:

"Question No. 1: At the time the note and mortgage in question were given by James Goodwin to Louis Goldstone was James Goodwin so intoxicated as to deprive him of his reason and understanding to the extent that he did not know the effect of those instruments or the nature of the transaction? Answer: Yes.

Question No. 2: On March 19, 1909, at the time Ferguson's attachment was levied on the lots described in the complaint, had Ferguson any knowledge that the note and mortgage in question were in existence? Answer: No."

Preliminary to a consideration of the questions presented upon the merits of the appeal a motion to dismiss the appeal should be disposed of. The defendants Wagner, Ferguson, and Kendall were not made parties to the appeal by service upon them of the notice of appeal. It is contended by counsel for respondent that they are necessary parties to the appeal. We think this contention is without merit. The defendants Wagner and Ferguson failed to answer, and their default was duly entered. The judgment shows that, as against the defendant Goodwin and his administrator (Goodwin having died subsequent to the institution of the suit and prior to the trial), an order of dismissal from the case was entered without objection prior to the trial. Wagner's rights under his deed from Goodwin were cut off by the constable's sale and deed to Ferguson. Whatever rights Ferguson and Kendall obtained were transferred by their deeds and acquired by the respondent Lupin. The judgment was in favor of Lupin alone for the property and for the costs of suit. We are unable to see how any reversal of the judgment could, under the pleadings and evidence, affect any of the rights of the codefendants as between each other. The only liability of Ferguson to Kendall or of Kendall to Lupin was upon their "grant, bargain, and sell" deeds. It is not contended that the only liability which the statute imposes by reason of such deeds (Rev. Laws, § 1063) could be of any avail to respondent in this case in the event of a reversal.

Even if it may be said that the several defendants obtained a joint judgment against the plaintiff to the effect that the note and mortgage were void from their inception, none of these other defendants can assert any rights by virtue of that judgment against the respondent Lupin. So far as the plaintiff in the action is concerned, these other defendants were never necessary parties to the suit. Nelson Co. v. Twin Falls Co., 13 Idaho, 767, 92 P. 980, 13 Ann. Cas. 172; Bliss v. Grayson, 25 Nev. 329, 59 P. 888.

The court below adopted the finding of the jury as shown by the answer to question No. 1, supra, and based its decision and judgment thereon.

Relative to the second special issue submitted to the jury, the court held that the defendant could acquire no rights in the property superior to the mortgage by reason of the fact that the attachment was levied upon the mortgaged premises prior to recording of the mortgage, but subsequent to its execution. As the correctness of the ruling of the trial court upon this latter point has not been questioned by counsel for respondent, we will assume it to have been correctly decided. Counsel for appellant in support of the court's ruling have cited Virgin v. Brubaker, 4 Nev. 32; Vaughn v. Schmalsle, 10 Mont. 186, 25 P. 102, 10 L. R. A. 411; Dawson v. McCarty, 21 Wash. 314, 57 P. 816, 75 Am. St. Rep. 841; Rev. Laws, §§ 1038-1040. See, also, 2 R. C. L. p. 860, § 72.

As to the question of Goodwin's mental condition at the time he executed the note and mortgage in San Francisco, there was no testimony of any witness who saw him or observed his physical or mental condition at that time. We quote the following from respondent's brief, and assume that it states the evidence, which, by the way, we have read in full, as strongly in support of respondent's contention as the evidence warrants:

"Four or five days after that time [March 16, 1909] Goodwin returned to Winnemucca, Nev. His physical and mental condition at that time would make any one know that he had been drunk quite awhile; he was emaciated and in such a condition that one would know he had been on a big drunk and had not got back all of his mental faculties; he had been on a drunk not less than ten or twelve days, and had the appearance of having been on a protracted spree prior to that time.

Witness Ferguson, who had known Goodwin and was well acquainted with him for a number of years, testified that after Goodwin had been drinking for two or three days that the faculties of his mind would be destroyed, and that when he drank he would get very nervous at first, could not be kept in bed, would just run around, stay awake, and be nervous and excitable, and as he kept on drinking he would get so that he could not take care of himself at all, and became...