Wilson v. Wilson

• Decision Date: 12 June 1899
• Citation: 6 Idaho 597,57 P. 708
• Parties: WILSON v. WILSON
• Court: Idaho Supreme Court

57 P. 708

6 Idaho 597

WILSON v. WILSON

Supreme Court of Idaho

June 12, 1899

NOTICE TO DISMISS APPEAL-SERVICE OF NOTICE OF APPEAL.-Admission of service of notice of appeal by one defendant within the time required by law for service of notice is equivalent to service.

SAME - VOLUNTARY APPEARANCE-JURISDICTION.-Admission of due service of notice of appeal is a waiver of irregular service, and when a party voluntarily appears in court he will be subject to the same jurisdiction as if brought in by regular process.

SAME-SERVICE OF STATEMENT.-Co-respondents cannot take advantage of failure of appellant to serve statement on motion for a new trial on one of their co-respondents, such co-respondent having failed to do so.

UNDERTAKING ON APPEAL.-When the clerk certifies that a sufficient undertaking on appeal in due form of law has been filed, the appeal will not be dismissed on motion, unless a certified copy of such undertaking is presented and it is thus shown that the undertaking is not in due form of law.

CERTIFICATE TO TRANSCRIPT.-Certificate of counsel for respective parties to transcript to the effect that the transcript is correct and contains all of the evidence, held sufficient.

ACKNOWLEDGMENT OF MARRIED WOMAN.-The acknowledgment of a married woman must be taken in substantial compliance with the provisions of section 2956 of the Revised Statutes.

DISPOSITION OF COMMUNITY PROPERTY.-Under the provisions of section 2505 the husband has the management and control of the community property, with like absolute power of disposition (other than testamentary), as he has of his separate property, but such power of disposition does not extend to the homestead or to that part of the common property occupied or used by the husband and wife as a residence.

SAME-SIGNATURE OF WIFE.-The wife's signature is not necessary to an instrument by which the husband conveys or encumbers that part of the community property of which he has absolute power of disposition.

FINDINGS.-The finding of facts must respond to all of the material issues.

PARTNERSHIP.-Held under facts of this case no partnership existed.

SUBROGATION.-When a person, being under obligation to do so, or is interested in so doing, pays the debts of another, he may be subrogated to all the rights, securities or remedies of the creditor whom he satisfies.

SAME.-When one voluntarily, and as a mere volunteer, having no interests to protect, pays the debts of another, the payment operates as an extinguishment of the claim and doctrine of subrogation does not apply.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Reversed and remanded, with instructions. Costs of this appeal awarded to the appellant.

John A Bagley and E. E. Chalmers, for Appellant.

The findings must cover all the material issues and settle the rights of parties. (Bosquett v. Crane, 51 Cal. 505; Nephi Irr. Co. v. Jenkins, 8 Utah 369, 31 P. 986; Potwin v. Blasher, 9 Wash. 460, 27 P. 710; Ernst v. Cummings, 55 Cal. 179; Carson v. Thews, 2 Idaho 176; 9 P. 605.) Plaintiff's payment was not a voluntary payment, and if not and his securities proved to be invalid, then he was entitled to be subrogated as prayed having theretofore advanced two thousand two hundred and fifty pounds sterling for said business. (Matzen v. Schaeffer, 65 Cal. 81, 3 P. 92; Hofman v. Demple, 52 Kan. 756, 35 P. 803; Everston v. Central Bank, 33 Kan. 352, 6 P. 605; Crippen v. Chappel 35 Kan. 495, 57 Am. Rep. 187, 11 P. 453; Yaple v. Stephens, 36 Kan. 680, 14 P. 222; Swift v. Kraemer, 13 Cal. 526, 73 Am. Dec. 603; Tolman v. Smith, 85 Cal. 280, 24 P. 743; Lewis v. Chittick, 25 F. 176; Citizens' Nat. Bank v. Wert, 26 F. 294; Equitable Mortgage Co. v. Lowry, 55 F. 165; Memphis etc. Co. v. Dow, 120 U.S. 287, 7 S.Ct. 482; Wiltsie on Mortgage Foreclosure, sec. 344; Patterson v. Birdsall, 64 N.Y. 294, 21 Am. Rep. 609; Harris on Subrogation, sec. 14, p. 19, sec. 139, p. 102.) A mortgagee in possession by consent of the mortgagor is entitled to remain in possession and to receive the rents and profits until his debt is paid. (1 Jones on Mortgages secs. 702, 703, 715-718; Wiltsie on Mortgage Foreclosure, sec. 677; Spect v. Spect, 88 Cal. 443, 22 Am. St. Rep. 318, 26 P. 203; Edwards v. Wray, 12 F. 42.) Upon a bill of exceptions containing all the evidence plaintiff moved for a new trial of said cause, and, his motion being denied, he duly excepted and appeals from said order assigning as error the denial of said motion. A party to an action is entitled to present on appeal the points, first, that the judgment is not a legal conclusion from the facts found; and second, that the evidence does not sustain the findings or some of them. (Dowd v. Clarke, 51 Cal. 262.) There never was a partnership of which plaintiff was a member actually existing or launched, but only an agreement to enter into the partnership relation. To constitute this relation the agreement between the parties must be an executed agreement. So long as it remains executory the partnership is inchoate, not having been called into being by the concerted action necessary under the partnership agreement. (Meagher v. Reed, 14 Colo. 335, 24 P. 681; Baldwin v. Burrows, 47 N.Y. 199; Grooves v. Tollman, 8 Nev. 178; Powell v. Maguire, 43 Cal. 11; Stevenson v. Mathers, 67 Ill. 125; Martin v. Baird, 175 Pa. St. 540, 34 A. 809.) The acknowledgment of Mrs. Elizabeth H. Wilson to the conveyance is conclusive of that fact as against plaintiff, who is an innocent grantee. (Frieberg v. De Lamar, 7 Tex. Civ. App. 263, 27 S.W. 151; Mather v. Jarel, 33 F. 366; 1 Devlin on Deeds, 530, 535; Jones on Mortgages, sec. 500; Johnston v. Wallace, 53 Miss. 331, 24 Am. Rep. 699; 2 Wharton on Evidence, 1052; Pierce v. Feagans, 39 F. 587; Kerr v. Russell, 69 Ill. 666, 18 Am. Rep. 634; Young v. Duvall, 109 U.S. 573, 3 S.Ct. 414; Browne on Parol Evidence, sec. 304.) Mrs. Wilson did by her letter make "some kind" of acknowledgment and cannot now impeach the certificate thereof. (Banning v. Banning, 80 Cal. 271, 13 Am. St. Rep. 156, 22 P. 210.)

S. C. Winters and R. S. Spence, for Respondents.

Where a mortgage is given on land owned in common by husband and wife, to secure the debts of the husband, a purchaser of the husband's interest in the land who pays off the mortgage debts is not entitled to be subrogated to the mortgagee's rights as against the wife's interest in the land, since she was only a surety for the husband and was as effectually released by the payment of the debt by the purchaser, as if her husband, the principal debtor, had paid it. (Zeller v. Henry, 157 Pa. St. 1, 27 A. 559; Cornwell v. Orton, 126 Mo. 355, 27 S.W. 536; Kleimann v. Gieselmann, 114 Mo. 437, 35 Am. St. Rep. 761, 21 S.W. 796; Bunn v. Lindsay, 95 Mo. 250, 6 Am. St. Rep. 48, 7 S.W. 473.) And if the appellant paid the prior mortgages or trust deeds with the intent to extinguish them and did so satisfy them, and he got the kind of security he expected to get, he cannot be subrogated to the prior mortgage liens. (Wentworth v. Tubbs, 53 Minn. 388, 55 N.W. 543; Wormer v. Waterloo Agricultural Works, 62 Iowa 699, 14 N.W. 331.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

The amended complaint, on which this action was tried, demanded the foreclosure of two certain mortgages on real estate and a chattel mortgage. The real estate mortgages are deeds absolute on their face, one given on certain real estate known as the "Howdon ranch," situated in Bannock county, Idaho and the other on what is known as the "Fish Haven ranch," situated in Bear Lake county, Idaho. The chattel mortgage is in the form of a bill of sale, and given on four hundred head of horned cattle, thirty-five head of horses, and a lot of farming implements and machinery, wagons, harness, furniture, and other personal property. The plaintiff also asked to be subrogated to the rights of certain other mortgagees whose mortgages, he alleges, he had paid, amounting to $ 15,000. It is also alleged that the deeds and bill of sale sued on herein were given in consideration of the payment of the mortgages last above referred to as belonging to certain other mortgagees, which payments were made under an agreement with the defendant and respondent, Charles B. Wilson. Plaintiff asks to be subrogated to the rights of G. C. Gray, whose mortgages he paid off on the second day of October, 1895, in the event the court finds that the deed, exhibit "C," was not acknowledged by Elizabeth H, as required by law. The defendant Charles B. Wilson failed to answer, and his default was entered. The defendants Mrs. Dryden, George Reay and Mrs. George Reay, answered, disclaiming any interest in the action or in the property in controversy. Defendants Elizabeth H. Wilson and Franc S. Brereton answered, denying the material allegations of the complaint, and, by way of affirmative defense, put in issue many material facts. The court tried the case without a jury, and filed its finding of facts and conclusions of law, and entered judgment of absolute dismissal against the plaintiff, dismissing his cause of action, and gave judgment against him for costs. A motion for a new trial was made, and denied by the court. The appeal is from the judgment and order denying a new trial.

A motion to dismiss the appeal was made by counsel for respondents Elizabeth H. Wilson and Franc S. Brereton, argued by respective counsel, and taken under advisement by the court, which we shall now proceed to decide.

The first ground of said motion is that the notice of appeal was not served upon Charles B. Wilson, the principal defendant. The transcript contains a stipulation in which said Wilson admits that the notice of appeal was served on him on January 12, 1899,...