Snyder v. Bock
| Decision Date | 23 March 1949 |
| Docket Number | 7457 |
| Citation | 69 Idaho 168,204 P.2d 1010 |
| Parties | SNYDER et ux. v. BOCK et al |
| Court | Idaho Supreme Court |
Rehearing Denied April 27, 1949.
Rehearing Denied April 27, 1949.
Appeal from District Court, Seventh District, Canyon County; Thomas E. Buckner, Judge.
Judgment affirmed.
Ariel L. Crowley, of Boise, and Frank F. Kibler, of Nampa, for appellants.
In Idaho, every document, whether option, deed, contract or whatsoever, which is given to secure payment of a debt, is a mortgage. Whatever the form of the agreement may be, if it in fact amounts to a mortgage, it will be so considered. Section 44-801 I. C. A.; Payette-Boise Water Users Ass'n v Fairchild, 35 Idaho 97, 205 P. 258; Section 44-804 I. C. A.; Hannah v. Vensel, 19 Idaho 796, 116 P. 115; Fond v. McCreery, 55 Idaho 144, 39 P.2d 766; Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426; Hagan v. Clyde, 60 Idaho 785, 97 P.2d 400 and cases cited.
The forbearance by the seller as disclosed by the evidence to have continued on many occasions, was either a waiver, or else laches. If either, the right of strict forfeiture is defeated and until a demand or other distinct notice of intention, with lapse of reasonable time to comply therewith. The right must be so clear and insistent as to permit of no denial. Walker v. McMurchie, 61 Wash. 489, 112 P. 500; Watson v. White, 152 Ill. 364, 38 N.E. 902; Douglas v. Hanbury, 56 Wash. 63, 104 P. 1110, 134 Am.St.Rep. 1096; General Motors Acceptance Corp. v. Hicks, 189 Ark. 62, 70 S.W.2d 509; 46 Am.Jur. 274; 24 R.C.L. 284.
Dunlap & Dunlap, of Caldwell, for respondents.
While it is true that a written instrument in whatever form given to secure an obligation is a mortgage, and that parol evidence is admissible to show that it is, in fact, a mortgage, there is an exception to the rule, and that is that where the parties had declared in the instrument their intention in purpose in clear and unequivocable writing that the transaction is an option to purchase or sell absolute and not a mortgage, then parol evidence is not admissible to show that the instrument is, in fact, a mortgage. Smith v. Swendsen, 57 Idaho 715, 69 P.2d 131, 111 A.L.R. 441.
This suit is brought under our "Uniform Declaratory Judgment Act" (S. L. 1933, p. 113). March 1, 1944, J. B. Bock and Bertha Beret Bock, husband and wife, and H. L. Snyder and Margaret M. Snyder, husband and wife, entered into a "Contract for Sale of Real Estate," whereby the Bocks agreed to sell and the Snyders to purchase a section of land located in Canyon county for the sum of $ 17,500. $ 2,000 were paid by the Snyders upon the execution and delivery of the contract, the balance being payable in deferred installments with interest at the rate of 6% per annum. By the terms of the contract the Snyders went into possession of the lands and are still in possession. The Snyders paid on the purchase price a total sum of $ 7,622, and made certain improvments of the value of approximately $ 5,000. The contract required the purchasers to pay all taxes and water charges and to keep the improvements on the land insured for their full insurable value, and not to suffer or permit any claims of liens against the property. The purchasers made default in the payment of taxes for the years 1944 and 1945 and permitted the same to become delinquent, which taxes, by reason of such failure, the Bocks paid. The Snyders also failed to pay assessments of the Riverside Irrigation District, Ltd., for the years 1944 and 1945, or the premiums on the fire insurance on the improvements for those years, or an instalment of $ 2,000 due under the contract April 1, 1946. The contract, executory in form, together with a deed to the property was placed in escrow with the First National Bank of Caldwell, Idaho.
March 3, 1946, Bocks served notice on the purchasers of the forfeiture of the above mentioned contract. June 19, 1946, they served notice of cancelation of the contract and, September 9, 1946, served notice of forfeiture of the contract on the purchasers.
November 15, 1946, an option to purchase the property described in the above mentioned contract, dated March 1, 1944, was executed by the respective parties. By that instrument the Snyders were given the sole and exclusive option to purchase the said property for the sum of $ 15,000, for and during a period of sixty days from November 15, 1946. The purchase price fixed by the option was not paid within such period, nor at any time thereafter.
The main action was commenced January 21, 1947. April 14, 1947, an amended complaint was filed. June 30, 1947, a second amended complaint was filed. July 14, 1947, the Bocks answered such complaint and at the same time filed a cross-complaint against the Snyders to recover the value of the use and occupation of the property described in the executory contract of sale from and after the date respondents allege the forfeiture of said contract became effective, which cross-complaint the Snyders answered August 25, 1947. October 28, 1947, the second amended complaint was amended in certain particulars. The cause was tried November 3, 1947. February 6, 1948, findings of fact and conclusions of law were filed. February 6, 1948, written objections to the sufficiency of the findings were filed and additional findings proposed. On the same day judgment was entered on the findings from which an appeal was taken to this court.
Appellants allege in their second amended complaint, and amendments thereto, in substance:
That they and respondents entered into the "Contract for Sale of Real Estate" hereinbefore mentioned; that they paid $ 7,622 on the contract; that by making certain improvements they increased the value of the property described in the contract "by the sum of $ 5,000.00"; that subsequent to the service on them of the notice of forfeiture dated March 3, 1946, respondents waived that notice by serving on them the notice of cancelation dated June 19, 1946; that respondents did not serve on the escrow holder either of the notices of forfeiture or the notice of cancelation; that respondents did not cancel the contract pursuant to notice of cancelation nor restore or offer to restore appellants' original status, and, on the contrary, respondents September 9, 1946, notified appellants the contract was forfeited; that subsequent to the service of the notice of forfeiture dated September 9, 1946, respondents orally waived the notice and that, therefore, the contract was in full force and effect; that subsequent to the notice of forfeiture dated September 9, 1946, respondents orally abandoned previous attempts to cancel and forfeit the contract; that respondents threatened to forfeit the contract at some future date unless appellants entered into an agreement with respondents; that by reason of such threat and economic pressure appellants entered into an oral agreement to pay and did pay taxes, water assessments, and insurance premiums to the amount of $ 1513.30; that appellants agreed to and did enter into an option to secure the payment of the purchase price of the land; that in pursuance of said oral agreement to execute the option and in consideration of the payment of the said sum of $ 1513.30 by appellants, respondents agreed appellants "should own and possess the said premises under said oral agreement of November 15, 1946, subject to the said defeasance"; "that the said defendants [respondents] knowing the large investment of the plaintiff -- in the said lands, knowing the plaintiff -- to be pressed for ready funds, and by use of business compulsion and the coercion of such circumstances and threats, solely and only for the purpose of securing the said debt of the plaintiff -- to the said defendants, compelled the plaintiff -- to execute the said option; and under the said circumstances and not otherwise, the plaintiff -- did so execute the said option, and thereby renewed and reinstated his rights and obligations, under the Exhibit 'A' [being the Contract for Sale of Real Estate hereinbefore mentioned] as extended and modified by the said oral agreement; and ever since the 15th day of November, 1946, the plaintiff -- has been and now is the equitable owner of said lands, subject to said defeasance"; that the consideration recited in the option, to-wit, $ 1500, is the identical total sum paid by appellants for taxes, water assessments and insurance premiums; that the option was intended by the parties thereto to be a mortgage.
Respondents filed an answer to the second amended complaint as well as a cross-complaint as above stated. By their answer respondents admitted the execution and delivery of the "Contract for Sale of Real Estate", service of the notices of forfeiture and notice of cancelation of the contract and that they did not cancel the contract, nor restore or offer to restore appellants' original status alleged by appellants; admitted the execution and delivery of the option dated November 15, 1946, also alleged by appellants, but denied it was executed to secure the payment of the purchase price of the property covered by such contract, and generally denied the material allegations of the second amended complaint upon which appellants relied to recover. By cross-complaint respondents alleged, so far as material here the execution and delivery of the written option dated November 15, 1946; that appellants did not exercise the option within the...
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Levesque v. Hi-Boy Meats, Inc.
...would not affect or change the result reached herein. Metzker v. Lowther, 69 Idaho 155, 204 P.2d 1025 (1949); Snyder v. Bock, 69 Idaho 168, 204 P.2d 1010 (1949). See also Oliver v. Creamer Heating & Appliance, 91 Idaho 312, 316, 420 P.2d 796 (1966). As herein stated, if the Industrial Commi......