Farnsworth v. Pepper

SULLIVAN, C. J. — This action was brought to enforce an alleged vendor’s lien upon certain real estate situated in Cassia county, near Burley, Idaho. The action was tried by the court without a jury and finding of facts and conclusions of law were made by the trial court and judgment entered in favor of the plaintiff decreeing a vendor’s lien upon the premises involved. The appeal is from the judgment. Numerous errors are assigned and reversal of the judgment demanded. The following facts appear from the record: [156] The plaintiff and defendant on or about August 18, 1910, entered into a written contract for the sale and purchase of a 40-acre tract of land in Cassia county, for the purchase price of $2,650'. In said written contract the receipt of one dollar thereof is acknowledged and two promissory notes were executed by the appellant, one for $1,000 and one for $1,650, for the balance of the purchase price. This contract .was entered into on or about August 18, 1910. Said land had been entered as a homestead by Benjamin Farnsworth, the brother of respondent. At the time said contract was entered into final proof had not been made at the United States Land Office for said land, but was made on November 4, 1910. At the time said contract was entered into, the respondent did not have the title to said land, but he put the appellant in possession thereof and the appellant had the crop then growing on the land, harvested it, sold it and received the proceeds thereof. The record shows that there had been some arrangement between respondent and his brother who entered said land, that the respondent should have the 40-acre tract of said land involved in this controversy for certain advances that he had made to his brother, Benjamin Farnsworth, and that the appellant desired to and did purchase the other 40 acres of said homestead entry and entered into a contract with Benjamin Farnsworth for its purchase, and it was then arranged between the appellant, Pepper, and Farnsworth that Benjamin Farnsworth should convey said entire 80 acres to him under such purchases and avoid the necessity of Benjamin Farnsworth’s conveying to Joseph Farnsworth one forty of said tract and Joseph Farnsworth’s then conveying the same to Pepper, and a written contract was entered into on November 4, 1910, for that purpose. The consideration named in said written contract of November 4th was $4,000, and thereafter on November 15, 1910, Benjamin Farnsworth and his wife conveyed said 80-acre tract to Pepper for a consideration named in the deed of $7,000. Appellant contends that he bought the entire 80-acre tract of Benjamin Farnsworth and the evidence is conflicting [157] upon this point. The court, however, found, and we think the evidence amply sustains the' finding, that he purchased only one forty of said 80-acre tract from Benjamin Farnsworth and purchased the other 40 acres from Joseph Farnsworth. The court finds that said conveyance from Benjamin Farnsworth to Pepper conveying said 80-acre tract, which includes the 40-acre tract sold by Joseph Farnsworth to Pepper, was made in pursuance of an agreement and arrangement between Pepper and Joseph Farnsworth and Benjamin Farnsworth, and the evidence amply supports that finding. On November 30, 1910, the appellant wrote a letter to an attorney in Idaho Falls, in which he explained to the attorney that he had bought one-half of said homestead from Benjamin Farnsworth and the other half from the respondent. On December 2,1910, the appellant signed a written acknowledgment and release in which the said contract of August 18, 1910, made between Joseph Farnsworth and the appellant for the purchase of Joseph Farnsworth’s 40-acre tract is referred to, in which it is stated as follows: “Now, therefore, I do hereby acknowledge that the said Jos. Farnsworth has performed all requirements that were called for in said contract, except that the final certificate of B. W. Farnsworth does not properly describe the land to have been deeded, and is not yet of record, and I herewith release him from any liability under said contract, except for above notation. ’ ’ It is true that appellant claims that said release was obtained through misrepresentation or fraud, but the evidence does not support that contention. Taking all of the evidence, it clearly establishes the fact or facts that the appellant had purchased 40 acres of said land from respondent and 40 acres of Benjamin Farnsworth. At the time he purchased the 40 acres from respondent, he executed and delivered to this respondent his two promissory notes, as above stated, and did not demand that they be returned to him at the time he entered into the contract or arrangement for Benjamin Farnsworth to convey said entire 80-acre tract to him, and [158] made a written, acknowledgment some weeks after receiving said deed from Benjamin Farnsworth that Joseph Farnsworth had fully kept his contract with him in regard to the sale of said 40 acres of land, and stated in his letter, above referred to, that he had purchased one forty of said tract from Benjamin Farnsworth and the other from respondent. The evidence amply sustains the findings of the trial court. Counsel for appellant contends that under the provisions of see. 3441, Rev. Codes, in order for plaintiff to maintain this action to foreclose a vendor’s lien, he must prove that he sold and conveyed the land on which he claims his lien, and contends that the record shows that the respondent never held the title to said land and did not convey it to the appellant. Said section is as follows: “One who sells real property has a vendor’s lien thereon, independent of possession, for so much of the price as remains unpaid and unsecured otherwise than by the' personal obligation of the buyer. ’ ’ That section simply provides that one who sells real property has a vendor’s lien. The evidence shows that the respondent was the equitable owner of said land and sold it to the appellant, and it was agreed among them that the legal title should go directly from Benjamin Farnsworth to Pepper. That was sufficient to sustain the vendor’s lien under our statute. Joseph Farnsworth owned said 40-acre tract; he had a right to sell it; he did sell it, and the promissory notes involved in this case represented the consideration to be paid for said land by Pepper therefor, and the conveyance of said land by Benjamin Farnsworth to the respondent as effectually conveyed the title of said land to the appellant as if Benjamin Farnsworth had first conveyed it to the respondent and the respondent had then conveyed it to the appellant. Finding no reversible error in the record, the judgment •must be affirmed, and it is so ordered, with costs in favor of the respondent. Budge and Morgan, JJ., concur. (April 27, 1915.) Brief of Appellant — Assignment of Errors — Attorney’s Eee — -Vendor's Lien — Deficiency Judgment. 1. Under the provisions of rule 45 of the rules of this court, the brief of appellant must contain a distinct enumeration of the several-errors relied upon. 2. Under the provisions of see. 3441, Bev. Codes, a vendor’s lien is only permitted as security for the balance remaining for whatever may be due on the unpaid purchase price of the land, and the attorney’s fee allowed for foreclosing such lien and any other indebtedness or liability is not made a lien by the provisions of said section. 3. Where an action is brought to foreclose a vendor’s lien, the judgment or decree may provide for a deficiency judgment in case the property charged with the lien does not sell for sufficient to pay the amount of the lien.