Strode v. Miller

• Decision Date: 24 January 1900
• Citation: 7 Idaho 16,59 P. 893
• Parties: STRODE v. MILLER
• Court: Idaho Supreme Court

59 P. 893

7 Idaho 16

STRODE v. MILLER

Supreme Court of Idaho

January 24, 1900

MORTGAGE-FORECLOSURE.-It is error to decree a joint sale of distinct parcels of property mortgaged to secure several different debts, by different mortgages, for the satisfaction of the aggregate amount of all the mortgage debts.

ESTOPPEL-ATTORNEYS-STIPULATION.-A party who stipulates that a certain decree may be entered, is not estopped from appealing from a decree different from that contemplated by the stipulation.

SAME-MARRIED WOMAN.-Attorneys cannot by stipulation bind a married woman in a case where she could not bind herself, or make her liable on a contract that she has never executed.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded, with instructions.

Hugh E McElroy, for Appellant.

In mortgage foreclosure the jurisdiction of the court is strictly limited to ordering the mortgaged property sold in satisfaction of the lien thereon. Section 4520 of the Revised Statutes of Idaho provides as follows: "In such action the court may, by its judgment, direct a sale of the encumbered property (or so much thereof as may be necessary) and the application of the proceeds of the sale to the payment of the costs of the court and the expenses of the sale, and the amount due to the plaintiff. A judgment must accord with and be warranted by the pleadings of the party in whose favor it is rendered. A judgment not supported by the pleadings is as fatally defective as one not sustained by the verdict or finding. (Black on Judgments, sec. 183; Bachman v. Sepulveda, 39 Cal. 688; Marshman v Conklin, 21 N. J. Eq. 546; Parsley v. Nicholson, 65 N.C. 207; Frevert v. Henry, 14 Nev. 191.) When foreclosure of several mortgages is sought and embraced in a single action, the decree should find the amount due on each, the priority or order in which each is to be paid, and only such property as is embraced in a particular mortgage should be sold to satisfy the debt secured thereby. (Collier v. Ervin, 2 Mont. 335.) The court had no jurisdiction to order deficiency judgment against Sarah M. Miller. It appears from the complaint that she had not executed the $ 2,000 note at all, and there is no allegation that the other notes evidenced indebtedness incurred for her separate use and benefit or for the use and benefit of her separate estate. (Jaeckel v. Pease, 6 Idaho 399, 53 P. 399.) Ordinarily, the pleadings as well as the findings on matters in issue, must authorize the judgment. Where the judgment is by stipulation, findings of the court become wholly unnecessary, and the judgment must be supported by the stipulation. If a party to such stipulation is entitled to judgment, it is upon the stipulation and not upon a trial of the case. (Gilmore v. Insurance Co., 65 Cal. 63, 2 P. 883.)

W. E. Borah, for Respondent.

The case below is one which seems to us to be directly in point. It was for the foreclosure of a mortgage, and the decree was consented to by the solicitors for defendants. An appeal was taken, but the court held that nothing could be considered as error which could and had been waived by the consent decree, saying: "If, when the case gets here, it appears that the decree appealed from was assented to by the plaintiff, we cannot consider any errors that may be assigned which were in law waived by the consent. . . . And so of all other provisions of the decree which are complained of. All these were matters to which the parties might properly agree; and having agreed, it does not lie with them to complain of what the court has done to give effect to their agreement. (Pacific R. R. Co. v. Ketchum. 101 U.S. 932; Fletcher v. Holmes, 25 Ind. 458.) It appears, from the printed record, that the decree below was entered by the consent of the defendant, by his solicitor. Such a decree is binding upon the parties, unless impeached for fraud or mistake, and no such claim is advanced by this appeal. (Brick v. Brick, 65 Mich. 230, 31 N.W. 907, 33 N.W. 761; Harvey v. Bunker Hill etc. Co., 2 Idaho 765, 24 P. 30; Schmidt v. Oregon etc. Co., 28 Ore. 9, 52 Am. St. Rep. 759, 40 P. 406, 1014; Nashville R. Co. v. United States, 113 U.S. 266, 5 S.Ct. 460; Town of Bristol v. Water Works, 19 R. I. 631, 35 A. 884; Indianapolis etc. Ry. Co. v. Sands, 133 Ind. 433, 32 N.E. 722; Knobloch v. Mueller, 123 Ill. 554, 17 N.E. 696; Board of Commrs. v. Scott, 19 Ind.App. 227, 49 N.E. 395; Pemberton v. Pemberton, 41 N. J. Eq. 349, 7 A. 642; Schermerhorn v. Mahaffie, 34 Kan. 108, 8 P. 199; Beach on Modern Equity Practice, sec. 795; Meecham v. McKay, 37 Cal. 154; Oullahan v. Morrisey, 73 Cal. 297, 14 P. 864; Erlanger v. Southern P. Ry., 109 Cal. 395, 42 P. 31; Brotherton v. Hart, 11 Cal. 405; Sleeper v. Kelley, 22 Cal. 456; Soc. Francaise D'Espergnes v. Beardslie, 63 Cal. 16; Rader v. Barr, 22 Ore. 495, 29 P. 889; San Francisco v. Certain Real Estate, 42 Cal. 513.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

This action was commenced by the respondent, plaintiff below, to foreclose three several mortgages on distinct parcels of land, securing three several notes executed at different times, each of said notes being payable to said respondent--one dated June 10, 1893, for $ 2,000, executed by appellant A. O. Miller alone; one for $ 1,000, dated October 25, 1893, executed by said Miller and his wife, Sarah M Miller; and the other for $ 1,000, dated December 12, 1894, executed by said Miller and wife. Each of said mortgages was executed and acknowledged by both said Miller and wife. There are no allegations in the complaint that the mortgaged property, or any of it, is the separate estate of Mrs. Miller, or that said debts were created for the benefit of her separate estate. The presumption, therefore, is that said debts are debts of the husband, and that said property is community property. (Jaeckel v. Pease, 6 Idaho 131, 53 P. 399.) The prayer of the complaint demanded judgment for the amount due on each of said mortgage notes, and "that the usual decree may be made for the sale of said premises by the sheriff of said county, according to the law...