Seeley v. Security Nat. Bank of Fairfield

• Citation: 235 P. 976,40 Idaho 574
• Parties: M. D. SEELEY, Appellant, v. SECURITY NATIONAL BANK OF FAIRFIELD, a Corporation, SIG MORRELL, D. K. HENDRY and MAY P. HENDRY, Husband and Wife, Respondents
• Decision Date: 13 April 1925
• Court: United States State Supreme Court of Idaho

235 P. 976

40 Idaho 574

M. D. SEELEY, Appellant, v. SECURITY NATIONAL BANK OF FAIRFIELD, a Corporation, SIG MORRELL, D. K. HENDRY and MAY P. HENDRY, Husband and Wife, Respondents

Supreme Court of Idaho

April 13, 1925

VENDOR AND PURCHASER-CONTRACT-PAYMENTS-WAIVER OF STRICT PERFORMANCE - CROP MORTGAGE - ESTOPPEL - ADMISSION OF EVIDENCE-OBJECTIONS TO-RESERVED RULING-EFFECT-APPEAL AND ERROR-REVIEW-ADMISSION OF EVIDENCE-INSUFFICIENCY-FINDINGS AND CONCLUSIONS.

1. One who sells land upon contract subject to a mortgage which he has assumed and agreed to pay, and which the vendee assumes and agrees to pay, by accepting a part of one of the payments due him and thereafter consenting to the vendee's giving a crop mortgage upon crops sown and to be thereafter sown, to secure funds to make a payment due upon the assumed mortgage will be held to have waived strict performance of the contract and has not a right to declare a forfeiture thereafter for previous default without giving reasonable notice to the vendee of his intention so to do, and a reasonable opportunity to make the delinquent payment.

2. One who tacitly encourages an act to be done and receives and accepts the benefits thereof cannot afterwards exercise his legal right in opposition to such consent and acceptance of benefits if his conduct or acts of encouragement induced the opposite party to change his position so that he will be pecuniarily prejudiced by the assertion of such legal right.

3. The practice of a trial court in reserving a ruling on an objection to evidence offered, and admitting the evidence, is to be condemned. However, evidence received subject to objection, whether a ruling is reserved or the privilege given of moving to strike it out later, is before the court and in the absence of a subsequent ruling excluding such evidence, it will be deemed to have been admitted.

4. Judgment in a cause tried by the court without a jury will not be reversed for error in the admission of evidence where the decision does not depend upon the evidence admitted, and is supported by ample evidence properly admissible.

5. A judgment will not be reversed for the insufficiency of the evidence to sustain a particular finding of fact or conclusion of law when there is ample evidence to sustain other findings of fact and conclusions of law which of themselves are sufficient to support the judgment.

APPEAL from the District Court of the Fourth Judicial District, for Camas County. Hon. H. F. Ensign, Judge.

Action to enjoin the foreclosure of a crop mortgage. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

James &amp Ryan, for Appellant.

Where the vendor forfeits the contract, the crops then growing on said land pass to such vendor even as against the holder of a mortgage on such crops executed before the forfeiture. In such case the mortgagee takes subject to the right of the vendor under his contract. (Union Farm Land v. Isaacs, 106 Wash. 168, 179 P. 84.)

Where a tenant by a breach of the terms of his lease forfeits his lease and his landlord re-enters, the landlord is entitled to the growing crops on the land. (24 Cyc. 1071, subd. D (see also notes); 8 R. C. L.. p. 365.)

Where a lessee, who had given a mortgage on crops to be planted in the future, terminates his lease before said crops are planted, no lien of the mortgage attaches to the crops planted on the land by other persons. (C. S., sec. 6373; Gamman v. Bull, 86 Iowa 754, 53 N.W. 340; Green v. Consolidated Wagon & Machine Co., 30 Idaho 359, 164 P. 1016; 11 C. J., pp. 431, 432, sec. 41.)

The validity of a crop mortgage given by a tenant depends upon the continuance of the lease, and if the lease is terminated before the crops are sown, or after they are sown but before maturity, the mortgage is void. (16 R. C. L., pp. 1139, 1140, sec. 660; 15 Ann. Cas. 1033; Woody v. Wagner, 89 Wash. 429, 154 P. 819; 24 Cyc. 1071 (D); Gregg v. Boyd, 53 N.Y. 386, 69 Hun, 588, 23 N.Y.S. 918.)

The relation between a vendor and vendee under an executory contract to purchase real estate is analogous to the relation existing between a landlord and tenant in so far as the right to claim crops is concerned. (39 Cyc. 1627; Lynch v. Sprague Roller Mills, 51 Wash. 535, 99 P. 578.)

Frawley & Koelsch and R. M. Angel, for Respondents.

"Findings of fact by the court on evidence substantially conflicting will not be disturbed on appeal." (Smith v. Faris-Kesl Construction Co., 27 Idaho 407, 150 P. 25; Capital Lumber Co. v. Saunders, 26 Idaho 408, 143 P. 1178.)

Where a contract for the sale of real estate makes time of the essence and provides for a forfeiture of the vendee's rights for failure on his part to make payments at certain times, a continued course of conduct on the part of the vendor in failing to declare a forfeiture, thereby leading the vendee to believe that the vendor waives a strict compliance with the terms of the contract, works a waiver of the vendor's rights to declare a forfeiture, unless and until he gives the vendee reasonable notice of his intention to do so and a reasonable opportunity to make the delinquent payments. (Sullivan v. Burcaw, 35 Idaho 755, 208 P. 841; 29 Am. & Eng. Ency. Law, 2d ed., 673; Quinn v. Olsen, 34 Minn. 422, 26 N.W. 233; Wadham v. McVicar, 115 Wash. 503, 197 P. 616; Luther v. Hekking, 110 Kan. 478, 204 P. 523.)

Erroneous rulings in the admission of evidence in an equity case are generally not sufficient to justify a reversal of the case. (Nelson-Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 P. 789; Spongberg v. First National Bank of Montpelier, 15 Idaho 671, 99 P. 712.)

"Where a person tacitly encourages an act to be done, he cannot afterwards exercise his legal right in opposition to such consent, if his conduct or acts of encouragement induced the party to change his position, so that he will be pecuniarily prejudiced by the assertion of such adversary claim." (Leaf v. Reynolds, 34 Idaho 643, 203 P. 458; Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090; Shafer v. Killpack, 53 Utah 468, 173 P. 948; Lillard v. Board of County Commrs., 102 Kan. 822, 172 P. 518; Lake v. O'Brien, 54 Cal.App. 543, 202 P. 158.)

TAYLOR, J. William A. Lee, C. J., Budge and Givens, JJ., concur. Wm. E. Lee, J., did not sit at the hearing and took no part in the decision.

OPINION

TAYLOR, J.

This action was brought by appellant Seeley to contest and enjoin the foreclosure by respondent Security National Bank of a chattel mortgage upon a crop raised on the lands involved in a contract of purchase between appellant and respondents Hendry and wife. Respondent Morrell is the sheriff who was proceeding to foreclose the mortgage under notice and sale, being in possession of the crop after it was cut and harvested.

Respondents answered denying title in the appellant, setting out certain facts with relation to the loan and mortgage and its execution, and alleging that the appellant was estopped by the facts and by his conduct, acts and representations from claiming any interest in the crop adverse or superior to the lien of the Security National Bank, and from questioning, denying or contesting the validity of the chattel mortgage. The court found in favor of the respondent bank upon all questions, and entered judgment against the appellant. The appeal is from that judgment.

Appellant's assigned errors may be grouped as follows: (1) error in reserving rulings upon contested points, and in not thereafter making any ruling upon the points reserved; (2) error in the admission of evidence; (3) errors in the findings of fact and conclusions of law; and (4) insufficiency of the evidence to sustain the findings and conclusions.

Most of the material facts are either admitted or there is a direct and substantial conflict of the evidence with respect thereto. As to the evidence in which there is a conflict, the court might well have found, as it did, in favor of respondents, and those findings will not be disturbed. (Smith v. Faris-Kesl Construction Co., 27 Idaho 407, 150 P. 25; Olson v. Caufield, 32 Idaho 308, 182 P. 527.) For a full understanding of the case and to make a concise statement, we will combine those facts found by the court upon evidence in which there is no controversy and those which might readily be found from the conflicting evidence in favor of respondents.

The appellant had purchased this land under a contract by which he had agreed to assume and pay what may be called the Naser mortgage on the property. On May 15, 1920, he sold it upon contract to respondent Hendry. By the terms of the contract, Hendry paid $ 5,000 in cash, and agreed to pay $ 5,000 on October 27, 1920, $ 5,000 on October 27, 1921, and $ 2,000 on October 27, 1922, and to assume and pay the Naser mortgage, then amounting to $ 9,000, upon which a payment of $ 2,000 would become due January 1, 1921. Time was made "an essential element," and forfeiture, at the option of Seeley, was provided for in the event of default on the part of the vendee, with a further recital that ". . . . Upon the forfeiture of this agreement as aforesaid the relation of landlord and tenant shall immediately exist between the said parties hereto."

This agreement, with a deed to the premises, was placed in escrow with the respondent Security National Bank on May 15, 1920. The respondent Hendry went into immediate possession of the lands and personal property, and planted some thirty acres of wheat in the fall of 1920. When the $ 5,000 payment became due October 27, 1920, Hendry was unable to pay the amount but did pay $ 1,900 about November 1, 1920. On November 19, 1920, Hendry and Seeley went to the bank and drew down the contract and deed, and they were turned over to Seeley. There is a conflict of...