Warren v. Stoddart

• Decision Date: 07 December 1899
• Citation: 6 Idaho 692,59 P. 540
• Parties: WARREN v. STODDART
• Court: Idaho Supreme Court

59 P. 540

6 Idaho 692

WARREN v. STODDART

Supreme Court of Idaho

December 7, 1899

BILLS OF EXCEPTIONS-SPECIFICATIONS OF ERROR-Under the provisions of sections 4426, 4428 and 4430 of the Revised Statutes, a bill of exceptions is not required to contain a specification of the errors relied on, unless the exception is to the verdict or decision upon the ground of the insufficiency of the evidence to sustain it. In that case, the bill of exceptions must specify the particulars in which the evidence is not sufficient.

STATEMENT ON MOTION FOR A NEW TRIAL.-Under the provisions of subdivision 3, section 4441, of the Revised Statutes, a statement on motion for a new trial must specify the particular errors relied on.

WHAT BILL OF EXCEPTIONS MUST CONTAIN.-Under the provisions of section 4427 of the Revised Statutes an order striking out a portion of a pleading is deemed excepted to and when such order, and the papers upon which it is made, are a part of the records and files in the action; it need not be embodied in a bill of exceptions, but may be reviewed on appeal as though settled in a bill of exceptions.

ATTORNEY'S FEES.-A stipulation, in a mortgage for an attorney fee, in case of suit brought, is valid, but should be enforced only for a reasonable fee.

SAME-HOW COURT TO DETERMINE WHAT IS A REASONABLE FEE.-The court, in determining what fee is reasonable, may take into consideration the amount actually paid or agreed to be paid if any such agreement was entered into, also should take into consideration the importance of the suit, the amount involved, the nature and extent of the work and labor in the preparation and trial of the action and any other facts that would assist the court in arriving at a right conclusion as to what would be a reasonable fee.

SAME-WHEN FEE NOT ALLOWED.-No judgment should be allowed for attorney's fees, unless the attorney has or is entitled to receive it himself. No fee should be allowed of which the plaintiff is to receive a part.

DEFENSES.-Held that the answer set up two separate defenses and that it was error to strike such defenses out.

SAME-TRANSFEREE-ASSIGNOR.-Where a promissory note payable "to order" is transferred without indorsement, the transferee acquires only the equitable title and can only recover subject to the defenses that were available against his assignors.

COVENANTS IN DEED.-The word "grant" when used in a conveyance by which an estate of inheritance is to be passed, is a covenant that the estate so conveyed is at the time of the execution thereof, free from encumbrances done, made or suffered by the grantor or any person claiming under him.

BREACH OF COVENANTS AGAINST ENCUMBRANCE.-There is a clear distinction between breaches of covenants of "warranty" and "quiet and peaceable enjoyment" and breaches of covenants against encumbrances.

SAME-REMEDY.-In cases of this kind the vendee may pay off the encumbrance and recoup the sum so paid against the amount due on the purchase price, but that is not his only remedy, as a defense on the ground of breach of covenant of encumbrance is sufficient to defeat an action for the recovery of the purchase price until such encumbrance be removed.

(Syllabus by the court.)

APPEAL from District Court, Canyon County.

Reversed and remanded. Costs of this appeal are awarded to the appellants.

Wyman &amp Wyman and Hugh E. McElroy, for Appellants.

Plaintiff having alleged title by written assignment from the payee to Simmons and the same being denied, in order to recover he must prove the title he has alleged. (14 Am. & Eng. Ency. of Pl. & Pr. 504, note B.) Does the evidence sustain the finding of the court that the sum of $ 1,000 was a reasonable attorney's fee for the foreclosure of this mortgage? It is not alleged in the complaint that any expense whatever had been incurred in that behalf, and while plaintiff's witnesses testified that the sum allowed is a reasonable fee, they also testified that so far as they knew plaintiff had not agreed to pay that amount. Attorney's fees are allowed to the mortgagee for the sole purpose of reimbursing him for any reasonable sum he has actually paid or agreed to pay for such services and not as an additional means of speculating on the mortgagee's necessities or misfortunes. If there is an attorney, the plaintiff's expense is limited to the amount paid therefor, provided it is reasonable. (Broadbent v. Brumback, 2 Idaho 366, 16 P. 555.) It becomes necessary to determine whether the allegations stricken out constitute a defense to the cause of action alleged in the complaint. By his pleading, plaintiff claims title, not by indorsement, but by assignment. He introduced no proof of indorsement. He only claims to be an assignee and not an innocent purchaser, and whatever rights he may have are subject to any defense which would have been good against the original payee at the time of the assignment. (Daniel on Negotiable Instruments, sec. 741; Lyon, Potter & Co. v. First Nat. Bank, 85 F. 120, 29 C. C. A. 45; Harrisburg Trust Co. v. Shufeldt, 87 F. 669; Gaylord v. Nebraska etc. Bank, 54 Neb. 104, 69 Am. St. Rep. 705, 74 N.W. 415; Randolph on Commercial Paper, 788.) While a thing once proved to exist continues as long as it is usual with things of that nature, this principle has no application to a statement of facts in a pleading. (Fredericks v. Tracy, 98 Cal. 658, 33 P. 750.) The officers of a corporation can only execute a deed in its name pursuant to resolution of the board of directors. (Johnson v. Sage, 4 Idaho 758, 44 P. 641; Bliss v. Kaweah Canal & Irr. Co., 65 Cal. 502, 4 P. 507.) The owners of canals and ditches are entitled to reasonable compensation for appropriating and delivering said water. (Syllabus, Wilterding v. Green, 4 Idaho 773, 45 P. 134.) The covenant is not a warranty of title or of "quiet enjoyment against encumbrances." It is that there are no encumbrances--that the property is "free from encumbrances." There is a very material difference between the last and either of the other covenants. In the case of the former, there must be some interruption of the possession of the property before there is any breach of the covenant. All the grantor contracts is that the grantee shall have the quiet possession of the thing conveyed and so long as he remains in possession, the contract is not broken. In the case the covenant is that there are no encumbrances, it is clear that the breach occurs whenever the deed is given and that no eviction is necessary. (Streeper v. Abeln, 59 Mo.App. 485; Anderson v. Knox, 20 Ala. 156; 8 Am. & Eng. Ency. of Law 2d ed., 122; Kramer v. Carter, 136 Mass. 504, (507).) It will not be disputed that the vendee may pay off the encumbrance and recoup the sum so paid against the amount due on the purchase price. (Davis v. Bean, 114 Mass. 358; Baker v. Railsback, 4 Ind. 533; Stilwell v. Chappell, 30 Ind. 72; Nesbitt v. Campbell, 5 Neb. 429; Tod v. Gallagher, 16 Serg. & R. 261, 16 Am. Dec. 571; Tone v. Wilson, 81 Ill. 529.) Under these circumstances, the vendor being insolvent, courts of equity will restrain the collection of the purchase price by injunction, where that remedy is sought or, in cases like this, where the mortgage is sought to be foreclosed, will stay the action until that duty has been performed. (Van Riper v. Williams, 2 N. J. Eq. 407; White v. Stretch, 22 N. J. Eq. 76; Bank v. Pinner, 25 N. J. Eq. 495; Daton v. Dusenburg, 25 N. J. Eq. 110; Yonge v. McCormick, 6 Fla. 368, 63 Am. Dec. 214; Jaques v. Esler, 4 N. J. Eq. 461; Nesbitt v. Campbell, 5 Neb. 431; McLemore v. Mabson, 20 Ala. 137; Arnold v. Curl, 18 Ind. 339; Johnson v. Jones, 13 Smedes & M. 580; Foote v. Clark, 102 Mo. 394, 14 S.W. 981; Young v. Butler, 1 Head, 640.) Respondent contends that the action of the court in striking out certain paragraphs of the answer has not been specified as error in the record, although specified in appellant's brief, and therefore cannot be considered. The supreme court of California has repeatedly held that in cases of this character, where evidence is not to be reviewed, the bill of exceptions need not contain specifications of error. (Miller v. Wade, 87 Cal. 410, 25 P. 487; Shadburne v. Daly, 76 Cal. 355, 18 P. 403.) Appellants have not appealed from the order striking out part of their answer. That order is not appealable. (Rev. Stats., secs. 4807, 4808; Gates v. Walker, 35 Cal. 289.) Where an amended complaint has been filed, the original complaint may be placed in the transcript as part of the judgment-roll to show action not barred by statute of limitations. (Dougall v. Schulenberg, 101 Cal. 158, 35 P. 635.)

T. J. Jones and A. A. Fraser, for Respondent.

The first error complained of in appellants' brief was the action of the court in striking out paragraphs 6 to 12 inclusive, of appellants' further answer. On this point we contend; 1. That the court cannot consider said assignment of error, as the same is not assigned as error in the record. (Purdy v. Steel, 1 Idaho 216; Burnett v. Pacheco, 27 Cal. 408; Crosett v. Whelan, 44 Cal. 200; People ex rel. Dickinson v. Bainard, 27 Cal. 470.) 2. The order appealed from is not designated in the notice of appeal. (Williams v. Dennison, 86 Cal. 430, 25 P. 244; Gates v. Walker, 35 Cal. 289; Gruell v. Spooner, 71 Cal. 493, 12 P. 511.) 3. The answer being struck out is no part of the judgment-roll, and as it is not incorporated in the bill of exceptions the court cannot consider the same. (Commissioners v. Krap, 90 Ind. 236; Abbott v. Douglass, 28 Cal. 299 of the dissenting opinion.) The further answer of the appellants did not state facts sufficient to constitute a defense to this action. The note and mortgage sued upon were given on September 16, 1892, and for a period of over five years the appellant made no...