Sunderlin v. Warner

• Decision Date: 01 May 1926
• Citation: 42 Idaho 479,246 P. 1
• Parties: CHARLES A. SUNDERLIN et ux., Appellants, v. T. F. WARNER and NATIONAL SURETY COMPANY OF NEW YORK, a Corporation, Respondents
• Court: Idaho Supreme Court

246 P. 1

42 Idaho 479

CHARLES A. SUNDERLIN et ux., Appellants, v. T. F. WARNER and NATIONAL SURETY COMPANY OF NEW YORK, a Corporation, Respondents

Supreme Court of Idaho

May 1, 1926

ATTACHMENT - AFFIDAVIT FOR - JUDGMENT - ELECTION OF REMEDIES-ESCROWS-EFFECT OF DELIVERY OF DEED WITHOUT CONDITION PERFORMED-RATIFICATION BY ELECTION OF REMEDY.

1. In absence of express statutory provision, attachment will not lie on demands existing ex delicto.

2. Under C. S., sec. 6780, authorizing writ of attachment affidavit failing to specify amount of indebtedness sought to be recovered over and above all legal set-offs and counterclaims is fatally defective, and gives court no jurisdiction to issue writ.

3. Although attachment of property within jurisdiction of court belonging to nonresident will not support personal judgment against nonresident on whom personal service has not been had, attachment brings property attached into jurisdiction of court, and judgment is good as to property attached.

4. Where deeds for exchange of property were placed in escrow pending determination of title, and plaintiffs, on failure of defendants to furnish good title, brought action to recover judgment for purchase price of property, they could not thereafter pursue any other remedy inconsistent with that form of action.

5. Whenever law supplies a person with two or more remedies for redress of given wrong or enforcement of given right, and remedies are based on inconsistent theories, such person is put to his election.

6. Where, after failure of defendant to deliver title to property, plaintiffs recovered judgment for value of property exchanged therefor, as on implied contract, they must be deemed to have elected to confirm conveyance to defendant by escrow-holder, and such action is inconsistent with election to sue escrow-holder for wrongful delivery of deed.

7. Although delivery of deed to grantee without his performing condition on which right depends vests no title in him, after grantor brings suit ex contractu and recovers judgment for purchase price, he thereby ratifies act of delivering deed.

8. Improper delivery of deed held in escrow may be ratified by person as to whom delivery was improper, and ratification may be shown by conduct of party in relation thereto.

9. Where escrow-holder, holding deeds to property to be exchanged, wrongfully delivered deed to one party, the other party by suing for value of such property ratifies act of escrow-holder, precluding recovery against him for such wrongful delivery.

APPEAL from District Court of Eleventh Judicial District, for Cassia County. Hon. T. Bailey Lee, Judge.

Action against escrow-holder for wrongful delivery of deed and bill of sale. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

Charles A. Sunderlin and Willard R. Griswold, for Appellants.

Under the circumstances of this case, the owner has an election of one of two remedies; he may maintain an action for the recovery of the lands, subject only to the rights of innocent purchasers for value without notice, or he may maintain an action for damages for the amount of money specified in the escrow papers, which money the bank failed to receive or turn over, and which escrow agreement was violated by the bank. ( Keith v. First Nat. Bank, 36 N.D. 315, 162 N.W. 691 L. R. A. 1917E, 901; Landon v. Brown, 160 Pa. 538 28 A. 921; Riggs v. Trees, 120 Ind. 402, 22 N.E. 254, 5 L. R. A. 696; Blight v. Schenck, 10 Pa. 285, 51 Am. Dec. 478; Hubbard v. Greeley, 84 Me. 340, 24 A. 799, 17 L. R. A. 511; Schmid v. Frankfort, 131 Mich. 197, 91 N.W. 131; Gardiner v. McDonogh, 147 Cal. 313, 81 P. 964; Smith v. Clews, 114 N.Y. 190, 11 Am. St. 627, 21 N.E. 160, 4 L. R. A. 392; McNeil v. Tenth Nat. Bank, 46 N.Y. 325, 7 Am. Rep. 341; McFall v. Kirkpatrick, 236 Ill. 281, 86 N.E. 139; Tiffany on Agency, pp. 398, 399; Miller v. Hannan, 29 N.Y.App.Div. 178, 51 N.Y.S. 816.)

If the true owner has clothed an escrow-holder with apparent ownership so that authority to sell may be implied, a bona fide purchaser will take the title free from any claim by the owner. (Brown v. Citizens' State Bank, 17 Idaho 716, 107 P. 405; McNeil v. Tenth Nat. Bank, supra; McFall v. Kirkpatrick, supra; Blaisdell v. Leach, 101 Cal. 405, 40 Am. St. 65, 35 P. 1019; Riggs v. Trees, supra; Hubbard v. Greeley, supra; Schmid v. Frankfort, supra; Provident Life Ins. Co. v. Mercer County, 170 U.S. 593, 5 S.Ct. 788, 42 L.Ed. 1156; Mercer County v. Provident Life Ins. Co., 72 F. 623.)

The fact that the action was for damages does not alter the nature of the obligation that the action was for a debt. The character of such a debt is so well established that it is a provable debt in bankruptcy, even though unliquidated. ( Talcott v. Friend, 179 F. 676; affirmed (Friend v. Talcott), 228 U.S. 27, 33 S.Ct. 505, 57 L.Ed. 718; Crawford v. Burke, 195 U.S. 176, 25 S.Ct. 9, 49 L. ed 147; Matter of Manhattan Ice Co. (U. S. Dist. Ct. of N. Y.), 114 F. 399, 7 Am. Bankr. Rep. 408; In re Frederic L. Grant Shoe Co. (U. S. Dist. Ct. of N. Y.), 11 Am. Bankr. Rep.; Schall v. Camors, 251 U.S. 239, 40 S.Ct. 135, 64 L.Ed. 247, 44 Am. Bankr. Rep. 547).

"A subsequent purchaser in good faith acquires a good title though his grantor had received his deed from a depositary without performing the condition upon which such deed was to be delivered. The depositary of the deed is the agent of the grantor as well as of the grantee." (4 Thompson on Real Property, par. 3954; Moore v. Trott, 156 Cal. 353, 134 Am. St. 131, 104 P. 578; Quick v. Milligan, 108 Ind. 419, 58 Am. Rep. 49, 9 N.E. 392; Guthrie v. Field, 85 Kan. 58, 116 P. 217, 37 L. R. A., N. S., 326; Hubbard v. Greeley, 84 Me. 340, 24 A. 799, 17 L. R. A. 511; Somes v. Brewer, 2 Pick. (Mass.) 184, 13 Am. Dec. 406; Simson v. Bank of Commerce, 43 Hun (N. Y.), 156, 6 N.Y.S. 176; affirmed, 120 N.Y. 623, 23 N.E. 1152; Waldock v. Frisco Lumber Co., 71 Okla. 200, 176 P. 218; 10 R. C. L. 639.

Hawley & Hawley, S. L. Hodgin, Stephan & North and S. T. Lowe, for Respondents.

Where an escrow-holder wrongfully delivers a deed, title does not pass, even to a bona fide purchaser. (Bowers v. Cottrell, 15 Idaho 221, 96 P. 936; United States v. Payette Lumber Co., 198 F. 881; Osby v. Reynolds, 260 Ill. 576, Ann. Cas. 1914D, 387, 103 N.E. 556; Thornhill v. Olson, 31 N.D. 81, Ann. Cas. 1917E, 427, 153 N.W. 442, L. R. A. 1916A, 493; Bradford v. Durham, 54 Ore. 1, 135 Am. St. 807, 101 P. 897; Tiedeman, Real Property, 3d ed., 579; Tiffany, Real Property, par. 406, p. 932; 11 Am. & Eng. Ency. of Law, 2d ed., 350; Dixon v. Bristol Sav. Bank, 102 Ga. 461, 66 Am. St. 193, and note, 31 S.E. 96; Seibel v. Higham, 216 Mo. 121, 115 S.W. 987; Hunter Realty Co. v. Spencer, 21 Okla. 155, 95 P. 757, 17 L. R. A., N. S., 622; Tisher v. Beckwith, 30 Wis. 55, 11 Am. Rep. 546; Chickasaw Loan & Trust Co. v. Mills, 59 Okla. 230, 158 P. 1156.)

Since the plaintiffs had the right to elect between inconsistent remedies, and did elect, they cannot now recover on the abandoned remedy. (Eichlor v. Holroyd, 15 Ill.App. 657; McMasters v. Torsen, 5 Idaho 536, 51 P. 100; Bernhard v. Idaho Bank & Trust Co., 21 Idaho 598, Ann. Cas. 1913E, 120, 128 P. 481; Crook v. First Nat. Bank of Baraboo, 83 Wis. 31, 35 Am. St. 17, 52 N.W. 1131; Headlee v. Cain (Mo. App.), 250 S.W. 611; Foster v. Los Angeles Trust & Sav. Bank, 36 Cal.App. 460, 172 P. 392; Shonkweiler v. Harrington, 102 Neb. 710, 169 N.W. 258.)

Since the plaintiffs ratified the act of Warner in delivering the deed, they cannot recover from Warner. (Triggs v. Jones, 46 Minn. 277, 48 N.W. 1113; Gochnauer v. Union Trust Co., 225 Pa. 503, 74 A. 371; Beagles v. Robertson, 135 Mo.App. 306, 115 S.W. 1042; Halloway v. Arkansas City Milling Co., 77 Kan. 76, 93 P. 577.)

WILLIAM A. LEE, C. J. Wm. E. Lee, Budge, Givens and Taylor, JJ., concur.

OPINION

WILLIAM A. LEE, C. J.

--William J. Johnson and his wife, Nena Johnson, contracted with Charles A. Sunderlin and his wife, Pearl I. Sunderlin plaintiffs and appellants in this action, September 18, 1919, whereby the Johnsons agreed to sell appellants certain farm lands for a stated consideration of $ 11,000 subject to certain encumbrances. Four thousand five hundred dollars of this consideration was to be paid by appellants in two semi-annual payments, one-half in six months and the remainder in one year after the Johnsons delivered to appellants an abstract of title showing that they had the legal right, title and interest in themselves to transfer and convey to appellants this farm land, free and clear from all encumbrances except such as were provided for in the agreement. The contract also recited that there was a case pending in the supreme court entitled Lott versus Anderson, which involved this title and prevented the Johnsons from transferring this property which they had contracted to sell to appellants, and that the $ 4,500 due on the contract should draw interest from the date of the contract at the rate of ten per cent per annum, payable quarterly, until the debt should be extinguished. The agreement also provided that the remaining $ 6,500 should be paid by appellants transferring to the Johnsons a house and lot and the household goods contained therein, which transfer should be subject to a mortgage of $ 3,500 that appellants were permitted to place upon the property. This agreement was in effect an exchange of farm land by the Johnsons to appellants for their town property, and the household goods mentioned in the agreement, with a money consideration to be paid by appellants to the Johnsons to equalize the greater estimated value given the Johnson land. It was also provided that in the event the Johnsons were unable to obtain a good title to this farm land, they were to...