Gamble v. Ankney , 1 Idaho 268 ( 1869 )

Kelly, J.

delivered the opinion,

BoweRS, C. J., and Mil-lee, J., concurring.

This is an appeal brought from the first judicial district. The defendants had notice of the findings and judgment of the court below, but made no motion for a new trial. At the nest term of the court they made an ineffectual effort to file a motion for a new trial, but the same was not allowed, and the case comes here on an appeal from the judgment of the. court below, and nothing can be considered but the judgment roll. It is an equity case brought for the foreclosure of a mortgage upon personal property. The complaint alleges that Dunwell mortgaged certain personal property, then being on the Nez Perce Indian Preservation, at a way station known as the Twelve-mile House in Nez Perce county, Idaho territory. The complaint further charges that defendants, Nison and the Ankneys, with the full knowledge of plaintiff’s mortgage and his ownership in said property, and with intent to cheat and defraud plaintiff out of the same, conspired together, took and disposed of said property or a certain portion thereof, and hold or claim the residue thereof under a pretended sale from the defendant Nison to the defendants Ankneys, and that said sale or pretended ownership of Nison and the Ankneys is without any consideration whatever. The prayer of the complaint asks to have the defendants Nixon and the Ankney account to the court for the property claimed by them, and all property that remains be sold, etc., in the usual form of the foreclosure of a mortgage.

The defendant Dunwell allows a default to be entered against him, and the defendants, Nison and the Ankneys, answer, and admit the taking and conversion of all the property, but deny that the plaintiff had any mortgage or ownership in the property, or that they had any knowledge of the same, or that they committed any fraud; and for a further answer, justify by saying that Dunwell and Nison were partners, and owned said property as partnership property, and that the defendants Ankneys were creditors of said Dunwell and Nixon, and they bought said property of Nixon to pay said partnership debts. They make a further plea to the jurisdiction of the court, by saying that the said Dunwell had no right to grant, convey, or mortgage said property, and that the execution of said pretended mortgage did not convey any title to said plaintiff whatever to said property mentioned in plaintiff’s complaint, for that the said premises ar§ situated upon the Nez Perce Indian reservation, and therefore not subject or capable of being sold, granted, or conveyed, as alleged, and are not within the jurisdiction of the court. The court below found in favor of all the necessary allegations in plaintiff’s complaint to charge the defendants in appeal, and against the denials and matters in avoidance set up in the answer, and that the defendants Ankneys had consumed, sold, and converted all of said property, or placed the same beyond the jurisdiction of the court, and rendered judgment against the Ankneys for the value of the property so converted.

It is contended by appellant’s counsel that Dunwell and Nixon were creditors of the Ankneys, and that fact appears by the complaint. The complaint and answer, in this and some other particulars, are almost incomprehensibly drawn. The only allegation in the complaint is, that the Ankneys have a docketed judgment against Dunwell and Nixon for one thousand four hundred and five dollars. The answer says that they had this judgment entered, but entered satisfaction at the same time, so that in case their title to the property failed they could have satisfaction set aside; they claimed nothing under it. The complaint is filed nearly a year after the taking of the property by the Ankneys, and does not show when the judgment was docketed or anything further about their being creditors, and the court does not find when they became creditors, or whether they were ever creditors of Dunwell and Nixon.

We have already held, in the case of Hazard v. Cole et al., that when the court fails to find upon a question, the question can not be considered for the first time in this court, unless the finding would be necessary to enable the court to render judgment. The court did find in this case that the Ankneys had full notice of the mortgage or sale to Gamble, and that Nixon liad no title to tbe property, and that tbe Ank-ne.ys purchased tbe same without consideration. And this is sufficient to charge tbe Ankneys, though tbe property be in tbe possession of tbe mortgagor. For it must be held that all questions put in issue and not found upon would have been found against tbe appellants, or they were deemed immaterial. From tbe findings of tbe court below, it does not appear that tbe Ankneys bad any title or right to tbe property more than any stranger. They took the property as trespassers under a pretended sale from Nixon. From tbe answer, and from tbe first, fifth, sixth, and seventh findings of tbe court, it would appear that tbe defendants in appeal relied upon tbe title of Nixon to them, and that Nixon’s title grew out of an existing partnership with Nixon and Dunwell; and that tbe court bad no jurisdiction in this, that tbe property was on an Indian reservation. Those findings are against tbe appellants, and of course, if Nixon bad no title, he did not convey any to tbe Ankneys, and the absolute title being in tbe mortgagee, Gamble, be bad to presume the property against tbe trespasser or fraudulent bolder, or recover bis judgment for tbe conversion. Tbe fact that tbe property was not within tbe jurisdiction of tbe court constitutes no bar in a court of equity if tbe person is within tbe jurisdiction; for a court of equity acts upon tbe person.

For these reasons we must affirm the judgment of tbe court below.

Judgment affirmed.