Smutz v. Scott

• Decision Date: 19 July 1927
• Docket Number: 4682
• Citation: 258 P. 525,44 Idaho 534
• Parties: OLLIE K. SMUTZ, Respondent, v. A. R. SCOTT and KATHERINE SCOTT, Husband and Wife, and LILLIE KOCH, Respondents, and OLOF NELSON and ETTA NELSON, Husband and Wife, Appellants
• Court: Idaho Supreme Court

258 P. 525

44 Idaho 534

OLLIE K. SMUTZ, Respondent, v. A. R. SCOTT and KATHERINE SCOTT, Husband and Wife, and LILLIE KOCH, Respondents, and OLOF NELSON and ETTA NELSON, Husband and Wife, Appellants

No. 4682

Supreme Court of Idaho

July 19, 1927

MORTGAGES - TAX SALE - PURCHASER AS AGENT AND TRUSTEE FOR MORTGAGOR - APPEAL AND ERROR-CONFLICTING EVIDENCE-FINDING UNDISTURBED-FORECLOSURE SALE-QUESTION OF MORTGAGOR'S HOLDING TAX TITLE NOT INVOLVED.

1. In action to foreclose a mortgage, evidence held sufficient to support finding that purchaser at tax sale purchased mortgaged property as agent and trustee for mortgagor.

2. Supreme court will not disturb the finding of trial court based on conflicting evidence.

3. Where appeal from judgment foreclosing a mortgage was taken only by purchasers of mortgaged property at foreclosure sale in their own right, and not as agent or trustee for mortgagor, question whether mortgagor would be precluded from holding tax title adversely to mortgagee will not be considered, since question can be of no concern to such purchasers at tax sale.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Action to foreclose a mortgage. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent Smutz.

Porter & Witham, for Appellants.

To establish that one person is acting as trustee for another in purchasing a tax title, in fraud of a third party, the evidence must be substantial, clear and convincing, and not founded on mere suspicion or conjecture. (Note to Lepley v. Anderson, 142 Wis. 668, 125 N.W. 433, 33 L. R. A. N S., 836; Nelson v. Hudgel, 23 Idaho 327, 130 P. 85; Price v. Salisbury, 41 Okla. 416, 138 P. 1024, L. R A. 1917D, 520; Nelson v. Krigbaum, 38 Idaho 716, 226 P. 169; Fehr v. Haworth, 33 Idaho 96, 190 P. 248; Crumpacker v. Bank of Washington Co., 38 Idaho 534, 223 P. 229.)

A finding of fact not supported by the necessary competent evidence will be reversed. (Rivers v. Rivers, 33 Idaho 349, 194 P. 94; Wolter v. Dixon, 29 Idaho 26, 157 P. 250; Van Meter v. Zumwalt, 35 Idaho 235, 206 P. 507.)

A vendee under a contract of sale may acquire a title paramount to a mortgagee by a purchase at a sale by the county of property acquired by tax deed. (26 R. C. L. 414, 416; Price v. Salisbury, supra; Laton v. Balcom, 64 N.H. 92, 10 Am. St. 38, 6 A. 37; United States v. Elliott, 164 U.S. 373, 17 S.Ct. 140, 41 L.Ed. 474; Moss v. Shear, 25 Cal. 38, 85 Am. Dec. 94.)

E. L. Ashton, Stephan & North and Ray Agee, for Respondent Smutz.

An assignment of error, which does not specifically point out wherein the evidence is insufficient to support a finding of the court, is insufficient to raise the question of the insufficiency of the evidence to sustain such finding, and will not be considered by this court on appeal. (Smith v. Harrington, 41 Idaho 155, 43 A. L. R. 1240, 238 P. 530; Intermountain Farmers Equity v. Norris, 39 Idaho 685, 229 P. 745; Hardy v. Butler, 39 Idaho 99, 226 P. 669; Weber v. Pend d'Oreille Min. etc. Co., 35 Idaho 1, 203 P. 891; Blackfoot City Bank v. Clements, 39 Idaho 194, 226 P. 1079; C. S., sec. 6886; Supreme Court Rule No. 40, p. 27; Parker v. Reay, 76 Cal. 103, 18 P. 124.)

Findings of a court on questions of fact generally have the force and effect of a verdict of a jury, and where there is any evidence in the record to support them, this court will not set aside such findings. (First Nat. Bank v. Cruikshank, 38 Idaho 789, 225 P. 142; Pence v. Shivers, 40 Idaho 181, 232 P. 568; Clinton v. Utah Construction Co., 40 Idaho 659, 237 P. 427; Lus v. Pecararo, 41 Idaho 425, 238 P. 1021.)

Where a purchaser enters into a contract for the purchase of real property, upon which there is an outstanding mortgage, and the amount of the mortgage is deducted or retained by the purchaser out of the agreed price, such purchaser assumes the mortgage debt and is personally liable to the mortgagee therefor, and such purchaser's relation to the mortgagee and the mortgaged premises is just the same as that of the original mortgagor. (41 C. J., p. 724, sec. 770; Sanderson v. Turner, 73 Okla. 105, 2 A. L. R. 347, 174 P. 763; Hadley v. Clark, 8 Idaho 497, 69 P. 319; Moore v. Boise Land & Orchard Co., 31 Idaho 390, 173 P. 117; Rockwell v. Blair Sav. Bank, 21 Neb. 128, 47 N.W. 641; Brown v. Avery, 119 Mich. 384, 78 N.W. 331; 41 C. J. 744, par. 807.)

A mortgagor or his grantee cannot, by acquiring a tax title upon the land, defeat the lien of the mortgagee. If the grantee of the mortgagor acquires a tax title to the premises, his purchase thereunder constitutes nothing more nor less than a redemption of the premises from the tax sale and any title so acquired by him inures to the benefit of the mortgagee, and it does not change the rule if the purchase is made in the name of another. (Jones on Mortgages, 7th ed., par. 680; C. S., secs. 3254, 6361; Bashore v. Adolf, 41 Idaho 84, 41 A. L. R. 932, 238 P. 534; 41 C. J. 758, par. 834; National Surety Co. v. Walker, 148 Iowa 157, 125 N.W. 338, 38 L. R. A., N. S., 333; Simon v. Rood, 129 Mich. 345, 88 N.W. 879; Curran v. Banks, 123 Mich. 594, 82 N.W. 247; Blackwell v. Kinney, 119 Ark. 578, 180 S.W. 757.)

Stephan & North, for Respondents A. R. Scott and Katherine Scott.

BRINCK, Commissioner. Varian and McNaughton, CC., concur.

OPINION

BRINCK, Commissioner.--

Plaintiff Ollie K. Smutz, brought this action to foreclose a mortgage. The defendants were A. R. Scott and Katherine Scott, his wife, the mortgagors, Lillie Koch, purchaser from the Scotts under an executory contract of sale, Olof Nelson, the holder of a tax title, and Etta Nelson, wife of Olof Nelson. The Scotts made no appearance. Mrs. Koch and the Nelsons joined in a demurrer to the complaint, which was overruled, and, so far as the record shows, the Nelsons alone answered the complaint. In their answer, the Nelsons affirmatively alleged that on February 12, 1923, they purchased the property mortgaged from Twin Falls county; said county having theretofore received a tax deed to the same, and that ever since said date they have been the owners of said property. Upon these affirmative allegations and by way of cross-complaint they prayed that their title be quieted as against plaintiff's mortgage. Plaintiff answered the cross-complaint, setting out as an exhibit the contract whereby Mrs. Koch purchased the property from the Scotts in 1919, being several years subsequent to the date of plaintiff's mortgage, and alleged that Mrs. Koch, after purchasing the property, permitted the taxes thereon to become delinquent for more than three years...