Westheimer v. Thompson

• Decision Date: 30 January 1893
• Citation: 3 Idaho 560,32 P. 205
• Parties: WESTHEIMER v. THOMPSON
• Court: Idaho Supreme Court

32 P. 205

3 Idaho 560

WESTHEIMER v. THOMPSON

Supreme Court of Idaho

January 30, 1893

MORTGAGE-ASSIGNMENT OF MORTGAGE-MERGER.-When the grantee of mortgagor buys in and takes assignment of a mortgage upon the premises conveyed the mortgage so purchased does not merge, except in the case when the grantee has assumed payment of mortgage as part of consideration for the conveyance of the fee, or has manifested or declared an intention to have it merge.

PRESUMPTION AS TO MERGER.-Presumptions are against merger, where it is manifestly for the interest of the grantee that the charge should not merge.

PAROL EVIDENCE TO SHOW INTENTIONS.-Parol evidence is admissible to show all the facts and circumstances attending the transfer to establish the intention of the purchaser of the mortgage.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

Reversed and remanded for a new trial.

W. C Howie, for Appellants.

Oral evidence is always admissible to vary, control, explain or contradict a receipt. (See Brannon v. Mesich, 10 Cal. 108; Hawley v. Badger, 15 Cal. 45; Jackson v. Sacramento Valley R. R. Co., 38 Cal. 541; Winans v. Hassey, 48 Cal. 634.) A mortgage will not merge into the legal title on both coming into the hands of the same person, except he be the original debtor, liable for the debt secured, where it is not the intention of the holder to so merge, nor where it is not for the best interest of the holder that they should so merge, even though his action should indicate an intention to merge them. (Belknap v Dennison, 61 Vt. 520, 17 A. 738; Collins v. Stocking, 98 Mo. 290, 11 S.W. 750; Appeal of Fink (Pa.), 18 A. 621; Newton v. Manwarring, 32 N. Y. St. Rep. 389, 10 N.Y.S. 347; Brooks v. Rice, 59 Cal. 496; Scrivner v. Dietz, 84 Cal. 295, 24 P. 171; 2 Parsons' Equity Jurisprudence, secs. 791, 793; Gray v. Nelson, 77 Iowa 63, 41 N.W. 566; Watson v. Gardner, 119 Ill. 312, 10 N.E. 192; Lockard v. Joines (N. J. Eq.), 23 A. 1075.) The court erred in ruling that the interest of Nora Linehan, under the tax sale, was merged in her other titles, for at the time of the assessment and sale she had and claimed no right or title in or to the land, and was under neither a legal nor a moral obligation to pay the taxes, nor did the tax title ever come into the hands of anyone whose duty it was to pay them. (See Kanawha Valley Bank v. Wilson, 29 W.Va. 645, 2 S.E. 768; Oswald v. Wolf, 129 Ill. 200, 21 N.E. 839 (see from bottom of page 841, and following); Mass v. Shear, 25 Cal. 38, 85 Am. Dec. 94, and note; McMinn v. Whelan, 27 Cal. 300 (see page 319).

Charles H. Reed and Hawley & Reeves, for Respondents.

This being an appeal from the judgment, and no part of the evidence being before the court to explain any objection or exception taken at the trial, we must look to the complaint to see if the allegations are sufficient to sustain the judgment and decree in this case. The complaint must state a cause of action. (Gather v. English, 29 Cal. 166; Black v. Merrill, 65 Cal. 90, 3 P. 113.) The presumption is that the court found the facts sufficient to sustain the judgment. (Reed v. Bernal, 40 Cal. 628.) We contend that the question of merger is one that does not arise in this case, and did not enter the mind of the judge when he tried this cause.

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

Action to foreclose mortgage on real estate. The facts, as near as we can make them out from the record, which is very incomplete and unsatisfactory, are, in substance, as follows: On the fifteenth day of December, 1886, one Archibald D. Thompson made and executed to one John E. Byrne a mortgage, to secure the payment of the sum of $ 2,000 and interest, upon certain real estate situated in Mountain Home, (then) Alturas county, Idaho territory. Afterward, on the 24th of August, 1887, said Archibald D. Thompson made and executed to the plaintiffs, as Ferdinand Westheimer & Sons, another mortgage upon the same premises, for the sum of $ 320 and interest, to foreclose which last-named mortgage this action is brought. On the 13th of March, 1889, John E. Byrne, the mortgagee in the first-named mortgage, for a valuable consideration, to wit, the sum of $ 2,000, assigned said first-mentioned mortgage to the defendant Norah Linehan; and on the 30th of March, 1889, said Archibald D. Thompson executed and delivered to said defendant, Norah Linehan, a warranty deed of the same premises, covered by the two mortgages aforesaid. At same time said Norah Linehan made the following indorsement upon the assignment of said mortgage from J. E. Byrne to said Norah Linehan: "Have received the within money to satisfy the mortgage that this refers to by deed from A. D. Thompson"--and also at the same time made the following writing across the promissory note accompanying said mortgage, and to secure the payment of which said mortgage was given, to wit: "Received payment in full. [Signed] Norah Linehan." On the day of June, 1887, one C. A. Morrill recovered a judgment in the probate court for Alturas county against said Archibald D. Thompson, upon which the property described in the deed and mortgages aforesaid was subsequently sold. That on February 21, 1889, said Morrill, having become the purchaser under the sale upon said judgment in his favor and against said Thompson, and having received the sheriff's deed of said property under said sale, conveyed the same by deed to said defendant, Norah Linehan. That said real estate was on February 4, 1889, sold for the taxes of 1889, and on March 19, 1891, said Norah Linehan having become by assignment the owner and holder of the certificate on such tax sale, the assessor and tax collector of said Alturas county executed to her, said Norah Linehan, a deed of said premises. Although all of the above-mentioned instruments are referred to in the "stipulation of facts," only the two mortgages and accompanying notes, and the assignment from Byrne to Norah Linehan, appear in the record. It seems the case was heard in the district court upon what is denominated in the transcript as an "agreed stipulation of facts," and the same is incorporated into the bill of exceptions, as settled and allowed by the district judge. Judgment was rendered in the district court in favor of plaintiffs. Defendants Patrick Linehan and Norah Linehan appeal from said judgment. The case was heard by the court without a jury, in the court below, and is submitted here upon briefs.

Respondents contend that appellants have no standing in this court, because their notice of appeal, as the same appears in the transcript, "is not directed to the clerk of the court below." We know of nothing in our code requiring such a direction. Section 4808 of the Revised Statutes of Idaho, cited by respondents, is as follows: "An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney." The notice of appeal, as it appears in the record, is in strict compliance with provisions of said section. The record shows that the notice of appeal was duly filed with the clerk, and served upon the attorney of the adverse party. The proposition that the appeal must fail because the notice of appeal does not appear to have been "directed" to the clerk of the court below is decidedly attenuated.

Respondents further contend that "this being an appeal from the judgment, and no part of the evidence being before the court to explain any objection or exception taken at the trial," this court can only look to the complaint to see if the allegations are sufficient to sustain the judgment. The transcript contains what is denominated therein an "agreed stipulation of facts," "which shall be used upon the trial and hearing of this case as the evidence therein," and this stipulation is embodied in, and made a part of, appellants' bill of exceptions; and the following is the closing paragraph of said stipulation "We agree...