Fairview Investment Co. v. Lamberson , 25 Idaho 72 ( 1913 )

AILSHIE, C. J.

This action was instituted for the purpose of quieting plaintiff’s title to the tract of land described in the complaint. Judgment was entered in favor of the plaintiff and one of the defendants appeals. The lands involved in this action are contiguous and form an addition to Boise City.

It appears that on the 10th day of February, 1870, patent issued from the United States to Nicholas Lamberson for 120 acres of land, and that the tract of land involved in this action is a part of that tract. Nicholas Lamberson and wife had the following children: Jay G. Lamberson, Charles G. Lamberson, Elbert S. Lamberson, Lelia L. Smith Lamberson,. and Julia J. Coyle Lamberson, who constituted the heirs at law of Nicholas and Sarah Lamberson, In April and June, 1869, Nicholas Lamberson mortgaged the land to David N. Hyde to secure the payment of $555.16. In October, 1869, Hyde commenced an action in the district court in and for Ada county for the foreclosure of the mortgage executed in April of that year, and decree of foreclosure was entered, and the case was subsequently appealed to the supreme court. (See Hyde v. Lamberson, 1 Ida. 539.) Following the decision of the supreme court, such proceedings were had in the trial court that on the 20th of March, 1875, a final decree of foreclosure was granted, and the order of sale theretofore issued was ordered corrected and sheriff’s sale was had on April 26, 1875, and sheriff’s deed was issued to John Huntoon as purchaser for the sum of $1,500. On April 30, 1875, defendant Lamberson filed a notice of intention to move for a new trial, and on the June following filed a statement asking for a new trial, and on September 11th a stipulation was filed to dismiss the action. On August 27, 1875, the Lambersons executed and delivered to John Huntoon, a quitclaim deed to the property which had been covered by the mortgage and the foreclosure sale. In August, 1875, there was organized, either as a de jure or a de facto corporation, what is known as the Idaho Agricultural Park Association, and about the 21st of September, 1875, John Huntoon and wife conveyed the property to the Idaho Agricultural Park Association. This corporation held, occupied and used the property from 1875 until August, 1902, when it conveyed the same to the respondent corporation. On the 29th day of August, 1907, the Fairview Investment Co., respondent, produced a quitclaim deed to the entire tract of land here in dispute from' the surviving widow of Nicholas Lamberson, and on the 25th day of March, 1908, procured a further deed of conveyance particularly describing the land and setting out various transactions previously had in reference to the title.

1. It is first contended that the complaint in the action does not contain facts sufficient to constitute a cause of action. This was clearly an action prosecuted under the provisions of sec. 4538, Eev. Codes, for the purpose of determining adverse claims to the property and quieting the plaintiff’s title thereto. The objections raised by appellant to the procedure herein in the matter of service of process and amendment of pleadings are not well taken. The court did not err or abuse its discretion in its rulings on these matters.

2. The objection that the court erred in ordering the Huntoons and all unknown heirs and devisees to be brought in is without merit. The mere fact that a court orders additional parties brought into an action does not of itself work an amendment of the pleadings so as to require new service of the pleadings in the case.

3. The court did not err in refusing to submit this ease to a jury. It was an equity case, and the court properly so treated it. It is true in -this ease, as it is in most all equity cases, that there are some questions of fact which a court may properly and sometimes wisely submit to a jury. That is a question, however, addressed to the discretion of the trial court. (Shields v. Johnson, 10 Ida. 476, 79 Pac. 391, 3 Ann. Cas. 245.)

4. One of the points most seriously urged is the alleged lack of corporate existence of the Idaho Agricultural Park Association through which the respondent traces its chain of title. To our minds, many reasons occur why this contention is wholly without merit. In the first place, the Lambersons had parted with all their title. First, they had lost title through the foreclosure of the mortgage given in 1869; and, second, through the quitclaim deed executed in favor of Huntoon in 1875. While the sheriff should have given a certificate of sale instead of a deed, it is now too late, after the lapse of more than thirty years, for the mortgagors to raise that question, when they never offered to redeem or attempted to redeem within the time prescribed by the statute as it was then in force or as it has existed at any time since. Where a sheriff gives a deed instead of a certificate of sale, the deed will have no other effect than that of a certificate of sale for such time at least as the right of redemption would exist. After the lapse of thirty-odd years and no offer having been made in the meanwhile to redeem, it can certainly make no difference to the mortgagor whether the sheriff executed a deed or a mere certificate of sale. If, however, he did show that he has lo'st any right or been deprived of the right of redemption by reason of this deed, then a different question would arise. In the second place, the quitclaim deed from the Lambersons to Iluntoon passed .all tbe title tbe makers of the deed had at that time. (Sec. 44, p. 603, Rev. Laws of 1874; Myers v. City of Oceanside, 7 Cal. App. 87, 93 Pac. 636; 13 Cyc. 652. See Whitney v. Dewey, 10 Ida. 633, 80 Pac. 1117, 69 L. R. A. 572.) "Whether the Idaho Agricultural Park Association was regularly incorporated in accordance with law or not, it certainly became a de facto corporation (Continental Trust Co. v. Toledo etc. Co., 82 Fed. 642), and for the purposes of this ease it would be treated the same as a de jure corporation.

The contention that has been so urgently made that this corporation could not be formed for the purposes designated in its articles under see. 1 of the act of the legislature of 1874, authorizing the formation of corporations, is not well taken. (See p. 618 of the Statutes of 1874-75.) It appears that a corporation was formed for the following purposes: “The company is formed for the purpose of owning ground, erecting buildings and improvements thereon, making a driving track and holding and conducting agricultural exhibitions, fairs, horse and cattle shows, and trials of speed of horses.” The statute, on the other hand, authorized the formation of corporations for “agricultural purposes.” A fair, conducted for making agricultural exhibits, the exhibiting of horses and cattle and giving exhibitions of the speed of horses has been frequently and quite generally recognized as a proper exercise of the powers of an organization and corporation formed for “agricultural purposes.” (See Dillard v. Webb, 55 Ala. 468; Downing v. Indiana State Board of Agriculture, 129 Ind. 443, 28 N. E. 123, 614, 12 L. R. A. 664; Dunn v. Society, 46 Ohio St. 93, 15 Am. St. 556, 18 N. E. 496.)

Still another objection as to appellant’s contention has suggested itself to our minds, and that is, if this corporation undertook to exercise powers outside of, or in excess of, the powers conferred by statute or contemplated by its charter, the appellant here would not be in a position, in a collateral way, to question its existence or authority to act or exercise such powers. That would have been a proper question for the state to raise. (See Seymour Opera House Co. v. Wooldridge (Tex. Civ. App.), 31 S. W. 234.)

"We do not deem it necessary to further review or consider the other points raised by appellant in this connection.

There is only one other point that has been raised that we will give special attention. It is contended by appellants that Nicholas Lamberson and wife, subsequent to executing the mortgages in 1869 and prior to the execution of the quitclaim deed to Huntoon in 1875, executed a warranty deed in favor of the children of Nicholas Lamberson by a former wife, in which deed they reserved to the grantors a life estate. It is contended that this deed was executed in 1873 and that the children who were named as grantees resided in "Wisconsin, and that the acknowledgment to this deed was taken before Jeremiah Brumback and left with him to-be recorded. No such deed, however, was produced, and no such deed appears of record. Other parol evidence was introduced to the eSect that this deed was witnessed by Thomas Cahalan, and that about the year 1882 it was in the possession of Milton Kelly, at one time a justice of this court. Cahalan was not called and did not testify. But little of the evidence on this question was either competent or admissible, and it was all of an uncertain and doubtful character. The execution and delivery of this deed was not satisfactorily shown, and the trial court did not believe that such a deed had been executed and made his findings accordingly.

The motion made in the trial court to strike the cost bill from the files and the ruling of the court thereon are not properly in the record and cannot therefore be considered on appeal. (Sec. 4456, Rev. Codes, as amended 1909 Sess. Laws, 76; Williams v. Boise Basin Mining Co., 11 Ida. 233, 81 Pac. 646; Swanson v. Groat, 12 Ida. 148, 85 Pac. 384; Bissing v. Bissing, 19 Ida. 777, 115 Pac. 827.)

Many other questions have been argued, but we shall not deal with them separately in this opinion. No error has been presented which requires or would justify the reversal of the judgment in this case. Upon a view of the whole record, we are satisfied that the judgment of the trial court is just and equitable and that it should be affirmed, and it is so ordered. Costs awarded in favor of respondents.

Sullivan and Stewart, JJ., concur.