Wooddy v. Jamieson

• Citation: 4 Idaho 448,40 P. 61
• Parties: WOODDY v. JAMIESON
• Decision Date: 06 April 1895
• Court: United States State Supreme Court of Idaho

40 P. 61

4 Idaho 448

WOODDY v. JAMIESON

Supreme Court of Idaho

April 6, 1895

ATTACHMENT-WILL NOT BE DISSOLVED WHEN IT IS SHOWN SECURITY HAS BEEN VOLUNTARILY SURRENDERED.-W. at one time held real estate as security for money furnished by him to J. Afterward this real estate was delivered up to J. and received by him, and thereafter W. brought suit upon his debt, and issued attachment. Held, that as the security had been delivered up to defendant and received by him, plaintiff was entitled to his attachment.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded.

Thorne Forney & Smith, for Appellant.

Cite no authorities on the point decided by the court.

Elder French and Denning, for Respondent, file no brief.

Plaintiff filed complaint on twenty-fourth day of May, 1894, alleging that defendant was indebted to plaintiff in the sum of $ 929.53. On the same day affidavit and undertaking for attachment were made and filed. Attachment was thereupon issued, and placed in the hands of the sheriff, who levied the same upon real estate belonging to defendant. On June 1 1894, defendant filed his motion to dissolve the attachment in said action, alleging as a reason therefor that the debt sued upon in this action was secured by a lien upon real estate which was voluntarily surrendered by plaintiff. The facts concerning the so-called security are sufficiently set forth in the affidavit of defendant in support of his motion for the dissolution of the attachment, and the counter-affidavit of plaintiff, as follows:

"State of Idaho County of Latah. ss.

"I L. D. Jamieson, being first duly sworn, on oath depose and say that I am the defendant in the above-entitled action; that the amount of money for which this action is brought was for money had and received by me upon a contract for the sale of certain real estate, wherein and whereby it was agreed between me and the plaintiff that he should pay me the sum of $ 603.68, and on taking possession of the hereinafter described real estate, and that the defendant herein was to execute to plaintiff herein a good and sufficient warranty deed for the premises, which were described as follows, to wit: The east half (1/2) of the northwest quarter (1/4), and lots No. 1 (1) and two (2), all in section twelve (12), township forty-two (42) north, range six (6) west, Boise meridian. That the defendant herein did make and tender a good and sufficient deed of warranty to the plaintiff herein, and it was mutually agreed between the said parties, and so contracted at the time, that the plaintiff should give his promissory notes secured by real estate mortgage on the aforesaid real estate, to secure the payment of whatever balance should remain due this defendant and unpaid on the sale of said real estate; and that by the terms of the said contract entered into it was mutually agreed and contracted between the plaintiff and defendant that the plaintiff herein should enter into the immediate possession of the said premises, and farm and hold and keep possession of the same; and that the plaintiff, acting under the terms of the said agreement, did enter into the possession of the said premises, and did hold and have a lien upon the said premises for the amount of money so paid. Affiant would further show that the plaintiff herein utterly failed to perform his part of the agreement by making, executing, and delivering to this affiant his certain promissory note and real estate mortgage upon the said premises for whatever balance might be found to be due; and, further, that the plaintiff herein did voluntarily surrender the possession and whatever lien he held upon the said premises to this defendant. L. D. JAMIESON."

Counter-affidavit of plaintiff is as follows:

"State of Washington, Whitman County. ss.

"I J. T. Wooddy, being first duly sworn, on oath depose and say in reply to the affidavit made by the defendant to dissolve attachment in the above-entitled action, that I am the plaintiff in said action; that I admit there was an oral agreement between the defendant and myself, whereby I was to have the premises described in defendant's affidavit, to wit: The east half (1/2) of the northwest quarter (1/4), and lots one (1) and two (2), in section 12, township forty-two (42), range six (6) west, Boise meridian. That I paid said defendant the sum of $ 603.68, in pursuance of said agreement. That I took possession of said premises, but I deny that defendant at any time made or tendered to me a warranty deed or any kind of a deed, though I requested him so to...