Williamson v. Moore

• Decision Date: 13 March 1905
• Citation: 10 Idaho 749,80 P. 227
• Parties: WILLIAMSON v. MOORE. (Two cases heard together.)
• Court: Idaho Supreme Court

80 P. 227

10 Idaho 749

WILLIAMSON v. MOORE. (Two cases heard together.)

Supreme Court of Idaho

March 13, 1905

(Two cases heard together.)

LIEN ON PERSONAL PROPERTY FOR CARE THEREOF-TENANTS IN COMMON OF PERSONAL PROPERTY-INJUNCTION PENDING DETERMINATION OF AN ACTION FOR DAMAGES.

1. One who renders services in the care and protection of personal property is, under the provisions of section 3445, Revised Statutes, as amended by act of February 9, 1899 (Sess. Laws 1899, p. 181), entitled to a lien on such property, dependent on possession, for his pay therefor.

2. Two of three tenants in common in possession of personal property may lawfully manage and control the same and their employment of another person to care for and protect the property will entitle such person to a lien thereon dependent on possession, for his pay for such services.

3. Where M. sells a tract of land to W. and others, and places a deed therefor in escrow and upon payment of the balance due on the escrow, M. refuses to surrender possession of the premises, the grantees are not thereby entitled to an injunction restraining M. from drawing the purchase money from the bank holding the escrow until the termination of an action for damages for unlawfully holding possession.

(Syllabus by the court.)

APPEAL from District Court in and for Blaine County. Honorable Lyttleton Price, Judge.

Action in ejectment for the possession of real property and to recover possession of certain personal property, and also suit for injunction restraining defendant from drawing certain money from the bank in which the same was deposited. Judgment for plaintiffs, from which defendant appeals. Injunction issued against defendant, and from an order refusing to dissolve the same, defendant also appeals. Affirmed in part and reversed in part.

Orders reversed. Judgment affirmed in part and reversed in part and cause remanded. Costs awarded to appellant.

Sullivan & Sullivan, for Appellant.

Although a contract may not expressly say it is not transferable, yet if there are equivalent expressions or language which exclude the idea of performance by another, it is not assignable. (La Rue v. Groezinger, 84 Cal. 283, 284, 18 Am. St Rep. 179, 24 P. 42.) The parties to a contract may in terms prohibit its assignment so that the assignees cannot succeed to any rights in virtue of it. (2 Am. & Eng. Ency. of Law 1035.) Contracts which are entered into with a view to the confidence reposed in each other by the contracting parties with the belief on one side and the other in the responsibility and solvency of the opposite party, are not assignable. (2 Am. & Eng. Ency. of Law, 1037, and authorities cited; Arkansas Valley Smelting Co. v. Belden Min Co., 127 U.S. 379, 8 S.Ct. 1308, 32 L.Ed. 246.) An executory contract, made in view of the confidence reposed in one another by the parties thereto, is not assignable by one without the consent of the other. (Boykin v. Campbell, 9 Mo.App. 495.) Either cotenant may charge his separate interest, or may convey or mortgage it, or become personally liable upon an undertaking respecting it. (17 Am. & Eng. Ency. of Law, p. 673.) In general, the tenant in possession may use and manage the common property in any way he chooses, provided he does not injure his cotenants. (17 Am. & Eng. Ency. of Law, p. 670, and authorities cited.) In general, all acts done by one tenant for the protection or preservation of the common property, will inure to the benefit of all the cotenants, who in a proper case may be called upon for contribution for the expense incurred in proportion to their respective interests. (17 Am. & Eng. Ency. of Law, p. 671, and authorities cited; Crary v. Campbell, 24 Cal. 637, 638.) A tenant in common is entitled to charge his cotenant with a just proportion of the expenses incurred for the benefit of the common property. (Peyton v. Smith, 22 N.C. 325; Hitchcock v. Skinner, 1 Hoff. Ch. 21; Anderson v. Greble, 1 Ashm. 136; Ruffners v. Lewis' Exrs., 7 Leigh, 720, 30 Am. Dec. 513.) The right of a tenant in common to the use and enjoyment of the common property exists not only in favor of the tenant himself but also in favor of a stranger claiming under him as lessee, licensee, or otherwise, so long as such possession and use do not interfere with the rights of the other cotenants. (17 Am. & Eng. Ency. of Law, p. 671; Berthold v. Fox, 13 Minn. 501, 97 Am. Dec. 243; McGarrell v. Murphy, 1 Hilt, 132; Causee v. Anders, 20 N.C. 388; Ord v. Chester, 18 Cal. 77; Carpentier v. Small, 35 Cal. 361, 362; Lee Chuck v. Quan Chong & Co., 91 Cal. 593, 28 P. 45; Hardy v. Johnson, 68 U.S. 371, 17 L.Ed. 502.) Defendant, in his cross-complaint, claims a special lien on said property under his contract of employment with Newland and Jensen. (Idaho Rev. Stats., sec. 3445; Comstock Min. & Milling Co. v. Lundstrum, 9 Idaho 257, 74 P. 975.) An assignment, after the lien of a creditor has attached, as by filing a bill, etc., only conveys the property subject to that lien. (Corning v. White, 2 Paige, 567.) An assignee generally succeeds only to the rights of his assignor. (Bullard v. Kinney, 10 Cal. 60.) Generally, the assignee of a contract takes his assignor's rights, but subject to the same burdens. (Smith v. Rogers, 14 Ind. 224; Phalen v. State, 12 Gill & J. 18; Kelley v. Schupp, 60 Wis. 76, 18 N.W. 725.) Where it appears that the defendant is in possession of the property with the license or consent of the plaintiff's cotenant it is error to render judgment in favor of the plaintiff for restitution and possession of the whole property. All that he is entitled to is to be let into possession with the defendant to enjoy his moiety. (Lee Chuck v. Quan Wo Chong & Co., 91 Cal. 593, 28 P. 45.) Section 4288, Revised Statutes, enumerates cases in which an injunction may be granted. The complaint filed does not come under any of the cases enumerated. It is necessary to allege facts. It is a well-settled rule of pleading that bare allegations of conclusions cannot avail the pleader, especially where a demurrer is interposed, without a statement of probative facts upon which the conclusions are based. (10 Ency. of Pl. & Pr., p. 925, and authorities cited.)

P. M. Bruner, for Respondent, cites no authorities.

AILSHIE, J. Stockslager, C. J., concurs.

OPINION

The facts are stated in the opinion.

AILSHIE, J.--

On April 25, 1902, the defendant Moore entered into a contract with the plaintiffs Newland and Williamson and one Lars J Jensen for the sale of a certain farm, together with livestock and farm implements thereon, situate in the county of Blaine, for the sum of $ 2,050, and on that date the purchasers paid the sum of $ 1,000, and the defendant executed a deed to the property and placed the same in the First National Bank at Hailey, in escrow. The escrow agreement accompanying the deed provided that the purchasers should pay the balance of $ 1,050 into the First National Bank, with interest thereon at the rate of eight per cent per annum, which sum was to be paid on or before the twenty-fifth day of April, 1904. It is conceded by all parties to the action that the purchase price of $ 2,050 was to be paid in full for both the ranch and the personal property, but no mention was made of the personalty in the deed, and no bill of sale appears to have been executed. But the escrow agreement contains the following reference to the personal property: "It is further mutually agreed that said second parties do not dispose of any stock on said land, consisting of one cow and six head of horses, until the land is paid for." The plaintiff Sherry was the agent and attorney in fact for the plaintiff Williamson in negotiating this purchase, and appears to have been the agent and attorney in fact for Williamson ever since that time. It was agreed between Moore, Newland and Jensen at the time of the transaction that Newland and Jensen should take immediate possession of the property, both real and personal, but it was specifically stipulated between them that Sherry should not be let into the possession of any of the property prior to making final payment. This agreement appears to have been made because of Moore's personal dislike for Sherry and his opinion as to Sherry's responsibility. In accordance with this agreement, Newland and Jensen entered into the possession of the...