Bothwell v. Keefer , 53 Idaho 658 ( 1933 )

While it is true respondent caused three writs of attachment to be issued out of the district court for Twin Falls county, but one of them was levied on real estate. The sheriff, in his return on that writ, recites that he executed it "by delivering to and leaving with Harry C. Parsons, County Recorder of Twin Falls County, State of Idaho, a copy of said writ of attachment, together with a notice in writing that all the right, title, interest and claim of Filer Livestock Company, Inc., a corporation, the within named defendant, of, in and to the following described real estate, was attached and levied upon by virtue of said writ of attachment, to wit: The Northwest Quarter; the West-Half of the Northeast Quarter and the Southeast Quarter of the Northeast Quarter of Section Thirteen (13), Township Nine (9) South, Range Fifteen (15) East of the Boise Meridian, in Twin Falls County, State of Idaho." The water right was not mentioned, nor does the return indicate any intention on the part of the sheriff to levy on a water right or any other appurtenance unto the land belonging.

The question in this case is, did the attachment, levied as above described, create a lien on a water right evidenced by a certificate of stock in a corporation, which water right was appurtenant to the land, so that an attachment, subsequently and correctly levied as provided by law, on the stock and water right would be subsequent and inferior to the claim of lien thereon by the first attaching creditor?

A careful examination of the authorities cited in the foregoing opinion will disclose that none of them is decisive of this question. It should be borne in mind that the rule governing voluntary incumbrances and conveyances of property, where the intention of the parties if ascertainable, will be given controlling weight, does not apply to attachments, where the property of an alleged debtor is taken, or encumbered, against his will and without his consent. In such a case the debtor will not be presumed to have intended to part with any of his property, nor to have consented that a lien be placed on it, nor will the creditor be presumed to have intended to acquire a lien on more of it than he causes the officer to expressly state, in his return, he has levied on.

Of course, parol evidence is admissible to correct an erroneous description occurring, by mutual mistake of the parties thereto, in a voluntary conveyance, or encumbrance, or to make definite and certain that which, through such mistake, is ambiguous in such description, but this rule does not apply to attachments.

In First Nat. Bank v. Sonnelitner, 6 Idaho 21, 51 P. 993, this court said:

"The notice of levy must describe the land with as much certainty as the sheriff's deed. The description must be such that a purchaser can tell from it the identical land which he buys. Parol evidence is not admissible to help out a defective description in the notice of levy required by the statute."

In the foregoing opinion the court has presumed it was the intention of respondent, not only to attach the land described in the notice of attachment, but also the water right, not referred to nor described. The effect of this presumption is to explain and correct a description which could neither have been explained nor corrected by parol evidence had it been offered.

It must be borne in mind that, as we have frequently held, although appurtenant to land, a water right is not an inseparable appurtenance and may be sold and conveyed separate from it. (Hard v. Boise City Irr. etc. Co., 9 Idaho 589,76 P. 331, 65 L.R.A. 407; Crockett v. Jones, 42 Idaho 652,249 P. 483; Twin Falls Canal Co. v. Shippen, 46 Idaho 787,271 P. 578; In re Department of Reclamation, 50 Idaho 573, cited in300 P. 492 as In re Johnson; In re Rice, 50 Idaho 660,299 P. 664.)

Even if presumptions could be indulged to support respondent's claim, it is not to be presumed the attachment was intended to be levied on the water right. I. C. A., sec. 6-504, provides:

"The writ must be directed to the sheriff of any county in which property of such defendant may be, and must require him to attach and safely keep all the property of such defendant, within his county, not exempt from execution, or somuch thereof as may be sufficient to satisfy the plaintiff'sdemands, . . . ."

If presumptions are to be indulged, the one this statute invites is that respondent intended to attach only so much of the debtor's property as was necessary to satisfy its demand, and did not, therefore, include the water right.

In Cooper v. Shannon, 36 Colo. 98, 85 P. 175, 118 Am. St. 95, the Supreme Court of Colorado had this question under consideration, and the part of its opinion pertinent thereto is correctly digested in the eighth section of the syllabus, as follows:

"Where a sheriff's deed did not purport to convey the water right, although he had the right to levy on the water right, but did not do so, neither the sheriff's nor the purchaser's intention can control, and where there is no act of the judgment defendant from which an intention to convey could be inferred, the water right is not conveyed."

Since an attaching creditor may attach all or any part of the debtor's property necessary to satisfy the debt, and may and should attach less than all, when less is sufficient, the attachment does not include more than the notice thereof describes, nor does it become a lien on a water right, appurtenant to the land, but which may be sold separately from it, unless it is expressly described, or is included in the description of the land by the use of the phrase "together with the appurtenances thereunto belonging" or some expression the equivalent thereof. An attachment cannot be construed to be a lien on property not described in the officer's return.