Terry v. Terry, 7527

• Decision Date: 11 January 1950
• Docket Number: No. 7527,7527
• Citation: 70 Idaho 161,213 P.2d 906
• Parties: TERRY et al. v. TERRY et al.
• Court: Idaho Supreme Court

Page 906

213 P.2d 906

70 Idaho 161

TERRY et al. v. TERRY et al.

No. 7527.

Supreme Court of Idaho.

Jan. 11, 1950.

Lawrence B. Quinn, Twin Falls, Beckwith & Langley, Twin Falls, for appellants.

Bissell & Bird, Gooding, for respondents.

PORTER, Justice.

Following the usage in the briefs, appellant, Lila A. Terry, will be herein referred to as plaintiff, and respondent, Alfred M. Terry, will be referred to as defendant. Prior to 1929, plaintiff and defendant were wife and husband. During coverture they acquired 77 acres of land in Gooding County. In 1929, they were divorced. The decree of divorce awarded an undivided one-half interest in such land to each of the parties. Thereafter, they re-married. In 1936, they were again divorced. Again, the decree of divorce awarded an undivided one-half interest in such land to each of the parties.

It is immaterial in this case whether the rights of the parties are founded upon the first decree of divorce or the second decree of divorce. The material fact is conceded that after the second decree of divorce, they were tenants in common of the land in question.

After the second decree of divorce, neither plaintiff nor defendant lived upon the land. The land was rented to one Dick Pope as tenant. There was a mortgage on the land in favor of the Federal Land Bank of Spokane. The tenant was directed to turn over the rent to an agent of the bank who was to pay the interest on the mortgage and the taxes, and to divide the balance between plaintiff and defendant. Plaintiff made her home in Oregon and in Twin Falls. Defendant went to live in the north part of the state.

As additional general facts, in finding of fact No. 4, the trial court found: 'that for the year 1938 and thereafter, any portions of said rentals not required for the purpose of the payment of taxes and mortgage installments were, under the direction of the defendant paid entirely to the plaintiff; that for and after the year 1940 the tenant on said land, under the order of the defendant, paid all of the rent to the plaintiff, to be by her applied in the same manner; and that during the years the ranch was so rented neither the plaintiff nor the defendant lived on the land, but they each visited the property once a year or more from and after 1936, to and including the year 1947; and that after 1938 authority to renew leases on the ranch was left entirely with the plaintiff, under an oral agreement between the plaintiff and defendant, under the terms of which the plaintiff was to lease the property, collect the rents and pay all indebtedness against or accruing against the ranch.'

It appears from the record that at the time of the second divorce, plaintiff borrowed $100 from the Wendell bank and defendant borrowed $75 from the Twin Falls Bank & Trust Company to meet the expenses of the divorce. The trial court found that it was agreed between plaintiff and defendant that these expenses should be paid out of the rentals received by plaintiff. Plaintiff paid her indebtedness to the Wendell bank, but did not pay the indebtedness to the Twin Falls Bank & Trust Company.

The Twin Falls Bank & Trust Company prosecuted its claim to judgment and levied upon the undivided one-half interest of defendant in the land in question. On August 4, 1939, defendant's interest in the land was allegedly sold at sheriff's sale to satisfy the judgment of the bank for the sum of $170.99; and a sheriff's certificate of sale executed to the bank as purchaser.

It thereafter came to the attention of defendant that plaintiff had not paid the Twin Falls bank. Plaintiff and defendant met in Twin Falls where plaintiff agreed to forthwith pay the indebtedness to the bank. Whereupon, on January 2, 1940, plaintiff paid the bank but instead of redeeming the property, took an assignment of the sheriff's certificate of sale in her own name. On September 26, 1940, the sheriff's deed was issued to plaintiff as assignee of the sheriff's certificate of sale.

Plaintiff continued to manage the land, to rent the same and to receive the rentals therefrom. On March 10, 1947, plaintiff sold the whole of said land to appellants, Smith, on contract for the sum of $15,500.00. The agreement of sale, abstracts and other papers were deposited with the respondent First Security Bank under an escrow agreement. Defendant, learning of such sale, notified the escrow holder on July 1, 1947, not to disburse any additional part of the escrow payments and that he was the owner of an undivided one-half interest in the land. The entire purchase price was paid to the escrow holder and so much thereof as had not been disbursed was thereafter held by the bank.

On February 2, 1948, appellants brought this action to quiet title to all the land in question and the proceeds thereof. By the complaint, it was alleged generally that Lila A. Terry acquired the undivided one-half interest of Alfred M. Terry in the land, first, by virtue of the sheriff's deed, and, second, by adverse possession.

Defendant, Alfred M. Terry, filed answer to the complaint consisting in substance of a general denial. He also filed a cross-complaint containing four purported causes of action. Summarized, they allege: (1) That the purchase of the sheriff's certificate of sale by plaintiff was made out of funds in the hands of plaintiff belonging to defendant and that she acquired such certificate of sale and sheriff's deed as equitable trustee for defendant; (2) that the real estate in question was not offered for sale or sold by the sheriff of Gooding County at the time and place advertised in the notice of sale or at all, and that such alleged sale was therefore void; (3) that defendant ratifies the sale to appellants, Smith, upon payment to him of an undivided one-half interest of the net proceeds of the dale; and (4) that plaintiff, during the year of redemption, collected sufficient rentals to pay the debt and redeem the property.

Appellants filed an answer to such cross-complaint consisting of a general denial and pleading the statutes of limitation and laches. Respondent, First Security Bank, deposited the escrow papers and funds in its hands with the clerk of the court and prayed that it be allowed its reasonable expenses including attorney's fees.

A trial was duly had to the court sitting without a jury. The court by its findings of fact and conclusions of law, found that the sheriff did not offer for sale or sell the land at the time and place named in the notice of sale, and that the certificate of sale and deed issued thereon were void; that appellants had not acquired title to the premises by adverse possession; that defendant, Terry, was entitled to judgment as prayed in his cross-complaint; and that respondent, bank, was entitled to judgment against plaintiff for its expenses including attorney's fees. Judgment was entered accordingly; and from such judgment, appellants have appealed to this court.

By their assignments of error, appellants contend that the trial court erred in holding that the sheriff's deed was void, upon the grounds, (1) that the deed cannot be attacked collaterally; (2) that the attack upon the deed is barred by the statutes of limitation; and (3) that such attack is barred by laches.

It must be conceded that the judgment, the writ of execution, the sheriff's certificate of sale and the sheriff's deed constituted prima facie evidence of title in plaintiff; and constituted prima facie evidence that the sale of the land was regularly held. Section 31-2204, I.C.; Jorgensen v. McAllister, 34 Idaho 182, 205 P. 1059; McCall v. First Nat. Bank of Pacatello, 47 Idaho 519, 277 P. 562. However, a sheriff's certificate of sale and a sheriff's deed constitute only prima facie evidence of the recitals contained therein, and where it appears from positive extrinsic evidence that the land was not actually offered for sale or sold at the time and place stated in the notice of sale and as recited in the deed, then such sale is void and the deed ineffective. Section 11-302, I.C., and Section 11-304, I.C.; Jorgensen v. McAllister, supra; American Fruit Growers, Inc., v. Walmstad, 44 Idaho 786, 260 P. 168; Idaho Gold Dredging Corp. v. Boise Payette Lbr. Co., 62 Idaho 683, 115 P.2d 401; 33 C.J.S., Executions, § 281, page 565, and § 282, page 566.

Appellants complain that the introduction of the testimony of witnesses to prove that the sale did not take place as advertised, constituted a collateral attack. Appellants...