Civils v. First National Bank

Appellant sues as administratrix of Oliver K. Exum, survivor of Allie Exum, both dying March 27, 1923, to cancel a mortgage covering community property of the deceased Exums and to vacate and set aside a foreclosure and sheriff's certificate of sale pursuant to judgment, and restrain the sheriff from executing a deed.

The complaint in part alleged that Allie Exum never signed the mortgage and that summons in the foreclosure action was never served upon her. On respondents' motion the court struck certain paragraphs of the complaint, and refused to admit any evidence on the ground that the portions of the complaint not stricken did not state a cause of action.

Allie Exum was joined as a defendant in the original foreclosure proceedings and therefore was entitled to defend her own right, and upon her husband's neglect to defend, to defend his right also. (C. S., sec. 6638; Overland Nat. Bank v.Halveston, 33 Idaho 489, 196 P. 217.) Since a wife has the right to defend after a disclaimer is filed by the husband (Stowell v. Tucker, 7 Idaho 312, 62 P. 1033), she would certainly have such right after he has defaulted. If process was not served upon her and she did not voluntarily appear she was not bound by the judgment. (34 C. J. 994.) If she did not sign the mortgage it was of course void. (Knudsen v. Lythman, 33 Idaho 794, 200 P. 130; Fargo v.Bennett, 35 Idaho 359, 206 P. 692; McKinney v. Merritt,35 Idaho 600, 208 P. 244; Childs v. Reed, 34 Idaho 450,202 Pac. 685; C. S., sec. 4666.)

The portion of the complaint remaining after paragraphs 15 to 22, inclusive, were stricken, on its face stated a cause of action, since the wife had the right to assert her defenses to the mortgage and such rights on her death passed as an incident to her share in the community to her husband and from him in turn to the appellant.

Paragraphs 15 to 19 of the amended complaint were to the effect that Allie Exum never signed the mortgage; that Oliver K. Exum had forged her name to it and that by fraud he had prevented her from appearing and defending the action. There was no allegation that respondents knew of such situation prior to the foreclosure. The administratrix has no greater rights than Oliver K. Exum, and while in connection with the interest of Allie Exum he could have raised any defense she had, not based on his wrongful acts, he could not have asserted a defense based on his unlawful participation therein; hence these paragraphs did not state all or any part of a cause of action in appellant's behalf and there was no error in striking them. Paragraphs 20 to 22 alleged in substance that respondents unlawfully coerced Oliver K. Exum into signing the mortgage and prevented him from making a defense thereto, and that it had been paid. These were defenses available to Allie Exum, since Oliver K. Exum did not unlawfully participate therein, and therefore should not have been stricken.

The judgment of the lower court is therefore reversed, and it is so ordered.

Costs awarded to appellant.

William A. Lee, C.J., and Wm. E. Lee, J., concur.

Budge, J., being disqualified, took no part in the opinion.