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der the act of September 27, 1850 (chapter proceeds of all the property; that is, the net 76), commonly called the “Donation Act.” rents. Q. State whether or not she ever The Missionary Society of the Methodist claimed to be the absolute owner of the Episcopal Church held the legal title under property during that time to you. A. She patent from the United States, but in trust, never did. Q. To whom, if any one, did she however, for the testator, and for his use claim the property belonged? A. To Mrs. and benefit. On the 3d day of October, 1877, Anna Moore, I think it is, and her children, the defendant bought in the outstanding title her daughter and her children; largely the of the missionary society, and took a deed children. Q. Do you remember any particuthereto in her own name, paying $120 as a lar time when she spoke of the property beconsideration therefor. In 1882 the grade of ing owned by the persons mentioned? A. In Washington street in front of the premises the spring of 1883, or about the time the imwas raised from 212 to 5 feet, at an expense provements were made on the property. I to defendant of about $100, and the build- think it was in 1883. I cannot say for cer. ings situate thereon were raised so as to con- tain. Q. Can you explain in what connecform to the grade at an additional expense tion she made the claim? A. Referring to of about $3,000. During the time the building the improvements on the property, she was being repaired, the defendant sold some spoke of it as being in the end going to Mrs. irop doors therefrom, for which she realized Moore and her children. The money in mak. $100. The court below decreed that the de ing the improvements was borrowed from fendant holds the legal title to said premises, French & Co., and the note was signed by but in trust for all persons taking and to take Mrs. Whitney, A. B. Moore, and wife. I under the will of Jonas Whitney; that two think the amount was two thousand dollars, thirds of the amount paid the Missionary she having some money in her dame, which Society in buying in its outstanding title, to was also expended on the improvements, wit, $280, plus $3,000, expended on the build- which came from rents of buildings and ings, less the sum of $100, received from the farm." Mrs. Sarah A. Moore also testifies sale of the iron doors, leaving a balance of that her mother, the defendant, claimed only $2,880, was a charge upon the estate; and a life estate in the premises up to the time that, upon the payment of said sum by plain- she was married to Simonson, which was tiffs, the defendant shall convey said premises some time after the improvements were to them and to said minor children, by a good made. It may be remarked, while passing, and sufficient deed, subject to the life estate that the defendant held, not only the life esof the defendant, in accordance with the last tate to the premises under the will of Jonas will and testament of the said Jonas Whitney. Whitney at the time she purchased the out. From this decree both parties appeal. Other standing mission title, but she occupied the facts will appear in the course of the opinion. position of a trustee in respect to said premF. P. Mays, for plaintiffs. A. S. Bennett,

ises, the owners of the remainder under said for defendant.

will being the cestuis que trustent. She was

then executrix of the estate, and bad served WOLVERTON, J. (after stating the facts). as such scarcely a year, and was also in posFrom the testimony it appears that in 1877, session, collecting rents. Ewing, J., in Bowl. at the time the defendant-bought in the mis- ing's Heirs v. Dobyns' Adm’rs, 5 Dana, 446, sion title, the property was worth from nine says: "It is certainly true, as a general to ten thousand dollars. Mr. D. M. French proposition, that if a trustee, mortgagee, or says the land was worth $1,000, and the im-tenant for life, being in possession, purprovements $9.000. William Lord testifies: "I chases in an outstanding title or incumshould think the land was worth $1,000, and brance, he cannot apply it to his own benefit, the improvements $8,000. Whitney claimed but it, in general, inures to the benefit of it was worth more." The defendant was him under whom he entered, or is considered asked, "What was the value of the property as held in trust for the cestui que trust, mortat the time you bought in the mission title?" gagor, or him in reversion or remainder." to which she answered, “I suppose the prop- Or, as stated by Bibb, C. J., in Morgan's erty was worth perhaps six thousand dol- Heirs v. Boone's Heirs, 4 T. B. Mon. 297: lars.” She testifies, however, that, imme- "It is a general principle that if a trustee, diately after she obtained the mission deed, mortgagee, tenant for life, or purchaser gets she claimed the whole interest in the prop- an advantage, by being in possession, or beerty, and continued to claim it from that bind the back of the party interested, and time on, including the time the improvements | purchases in an outstanding title or incumwere made by her, but that prior to the ex- brance, he shall not use it to his own benefit, ecution of the deed she had only a life es- and the annoyance of him under whose title tate therein. Dr. H. Logan, who became he entered, but shall be considered as holdthe agent of defendant in 1878, or 1979, and ing it in trust." See, also, Holridge v. Gilacted as such for her until after the improve lespie, 2 Johns. Ch. 33; Whitney v. Salter ments were made, testifies as follows: "Q. (Minn.) 30 N. W. 755; Daviess v. Myers, 13 State, if you know, what interest she [de- B. Mon. 511; 1 Washb. Real Prop. 96. There fendant) was claiming in this property while is but little doubt that the defendant pur. you were acting as her agent. A. The net | chased this title with her own funds. They came out of the rents and profits which were The defendant claims, however, that, if rightly hers under the will, or else were de- she is held to be a trustee, she ought to be alrived from the personal property which she lowed a fair proportion of the amount exwas also entitled to after the payment of pended by her in the purchase of the outdebts and the expenses of settling the estate. standing title, and in making permanent imHowever this might be, a court of equity provements, upon the ground that she made may treat the claim as having been pur- such expenditures from her own funds, bechased for the benefit of those in remainder. lieving that she was the owner of the absoIn the case of Bowling's Heirs v. Dobýns' lute title. The rule is established by Hatcher Adm'rs, supra, which was a stronger case v. Briggs, 6 Or. 31, that where a purchaser for the life tenant than the one at bar, the of real property, for full value, at an unaucourt say: “And though, after a recovery in thorized partition sale, in good faith and withejectment, and before possession is taken, it out notice of any infirmity of title, believing might be competent for the mortgagee, trus- it to be good, makes permanent improve tee, or tenant for life to abandon their claims, ments, which add to the value of the estate, and take shelter under the adversary claim he is entitled to recover to the extent of such by purchase, without waiting to be ousted added value, as well as for the amount exby writ, yet they will in all such cases be pended in purchasing his supposed title, held to a rigid scrutiny and strict accounta- where such improvements and purchase price bility. Slight testimony tending to show inure to the benefit of the true owners. But that they purchased with the means of the the defendant occupies the position of a selfmortgagor, cestui que trust, or him in rever- constituted trustee, by purchase of an outsion or remainder, or with the combined standing title, which inured to the benefit of means of the latter and the tenant for life, others as well as of herself. She undoubtwill render the claim so acquired subject to edly believed at the time that she was taking all the rights and limitations over of the a title without infirmities, but she took it as original claim. And though a judgment has trustee, and whatever expenditures she made been recovered in ejectment, and he pur- were made in the belief that she was a life chases with his own funds, while he is still tenant only. So that she is not in a position in possession, a court of chancery might, per- to invoke the doctrine applicable to a purhaps, treat the claim as purchased for their chaser in good faith for value, making imbenefit, requiring them to account to him for provements which add to the value of the all reasonable disbursements in its acquisi-premises. Whenever it is once established tion." In that case the life tenant was ex- that a trusteeship exists, then the obligations ecutrix of the estate, as in this, and the and duties of a trustee ensue. He will be court concluded that her purchase was in held to a strict accountability as to the man. trust for the remainder-men. Here we have agement of the trust estate, and cannot ina life tenant and an executrix of the estate cumber it except in accordance with the powin full possession, purchasing the outstand- ers given by the terms of his trust, by ing title, which she now declares was nego- | authority of the court, or with the consent of tiated as an individual investment, intending the cestui que trust. So that it is difficult thereby to become the absolute owner there- to see how the defendant, being a trustee, of, unincumbered with any trust obligations. can claim for the value of improvements, on The testimony is so strong, however, that the ground of having purchased an outstandshe never claimed more than a life estate in ing title, without notice of infirmities, when the premises until a comparatively recent the very purchase itself inured to the benefit date, admitting all the while that Mrs. Sarah of other parties, and the very parties against A. Moore and her children were entitled to whom she now claims reimbursement. the remainder after her estate had termi- The defendant is a trustee of the legal title nated, that we are convinced that she had merely by operation of law. Her duties and a more equitable purpose in view when she obligations towards the owners of the estate made the purchase, and that she in reality in remainder are those of a life tenant. As intended the title to inure to the benefit of such, she is required to keep down interest her child and grandchildren, as well as that upon incumbrances, and to keep up repairs, of herself. The property was worth at the so that those in remainder shall come into time of purchase from $9,000 to $10,000. She their estate after the expiration of the life admits it to have been worth $6,000, and yet estate in substantially the same condition as she purchased the title under which she it came to her hands. As a general propoclaims the fee for $420, so that the subsist- sition, if a tenant for life makes improveing equities are strongly against her present ments upon the premises, he cannot claim contention. Hence we think her purchase of compensation therefor from the reversioner the mission title ought now to be regarded or remainder-man, though he is under no as having been made, as she originally in- obligation to do more than keep the premises tended it, for the benefit of the devisees un- in repair, and generally he cannot make reder the will of her former husband, Jonas pairs or permanent improvements at the exWhitney and she ought now to be regarded pense of the inheritance. 1 Washb. Real as holding the legal title to said premises in Prop. 129; 6 Am. & Eng. Enc. Law, 882. trust for the beneficiaries under said will. Paxton, J., in Datesman's Appeal, 127 Pa. St. 359, 17 At). 1086, 1100, says: “It is set- ready to be paid her. When she collects this tled law that the life tenant cannot of his fund, it ought to go towards the discharge of own motion improve the remainder-men out the incumbrance. Plaintiffs seek to have the of their estate.” Or, as was said in Van Bib- $400 which defendant received for the iron ber v. Williamson, 37 Fed. 759: “Improve- doors offset against any claim she may have ments made by the life tenant, or those hold- for expenditures; but this is in the nature of ing or claiming by, through, or under him waste, and no claim is made therefor under prior to his death, could nor, upon well-set- the pleadings, nor was there any evidence tled principles, be charged against the re- offered during the trial showing that she was mainder-men, who were minors, and in no guilty of committing waste in this respect. position to interfere or complain.” See, also, She may or may not have committed waste Elam v. Parkhill, 60 Tex. 582, and Miller v. in selling the iron doors, but the evidence is Shields, 55 Ind. 71.

insufficient to determine that question, none The cost of the improvement in raising the apparently having been offered with that end stone buildings was about $3,000. This ex- in view. Hence this claim cannot be allowed. penditure was entirely, as we have seen, from The decree will be that the defendant conthe funds of the defendant, but it was by vey to the other devisees of Jonas Whitney her own volition, with knowledge at the time the premises in the proportion they would of the exact relationship which she sustained take under the will, reserving to herself the to the owners of the remainder. So that this rents, issues, and profits thereof during her expenditure cannot be allowed, upon any natural life, and that the $520 be declared ground that we are now enabled to discover, an incumbrance thereon, to be discharged by at the expense of the inheritance. The ex- the life tenant and other devisees, the proporpenditure for the improvement of the street tion for each to pay to be ascertained under should, however, be allowed the defendant. the rule herein determined. The decree of This improvement constituted a betterment, the court below will therefore be modified in and inured to the benefit of the inheritance, accordance with this opinion. as well as to the life estate, and the cost thereof should be treated as an incumbrance on the whole estate. Plympton V. Boston

(4 Idaho, 431) Dispensary, 106 Mass. 547; Cairns v. Chabert,

FIRST NAT. BANK OF PALOUSE CITY 3 Edw. Ch. 330. In view of the fact that

v. LIEUALLEN et al. the defendant bought in the outstanding mission title in good faith, believing it to be

(Supreme Court of Idaho. April 6, 1895.)

ATTACHMENT LIEN-NOTICE OF LETY-SALE. necessary for the protection of the whole

1. The evidence of the levy of the attachestate, the amount expended therefor should

ment and the notice thereof, filed with the realso be treated as an incumbrance. The

corder, held sufficient to give notice of the ato amount expended for improving the street tachment lien. was $100, which, being added to the consid

2. A sheriff's deed for land sold under exe

cution relates back to the date of the attacheration for the mission title, makes $320.

ment, and cuts off all subsequent liens. The defendant, by paying this sum out of her (Syllabus by the Court.) own funds, became a creditor of the estate

Appeal from district court, Latah county; to that extent, deducting the interest she

W. G. Piper, Judge. would have to pay as life tenant during her

Action by the First National Bank of Palife. It is the duty of the defendant to keep

louse City against J. W. Lieuallen and others down the interest upon this sum during her

to foreclose a mortgage. Plaintiff had judg. life, and of the remainder-men to pay the principal at her death. 4 Kent, Comm, 74,

ment, and defendants appeal. Reversed. 75; Reyburn v. Wallace (Mo. Sup.) 3 S. W. J. H. Forney and I. N. Smith, for appel482. The rule is well settled by which may lants. J. A. C. Freund and Hanna, McCros. be ascertained the relative proportion of the ky & Ettinger, for respondent. incumbrance to be borne, respectively, by the life tenant and the owners of the remainder SULLIVAN, J. This is an appeal from a if paid at once or at any given time before judgment and decree of foreclosure. The the death of the life tenant. The life tenant | facts are substantially as follows: The demust pay the present worth of an annuity, fendants Lieuallen and Lestoe brought suit equal to the annual interest running during against the defendant Andrew Clyde, doing the number of years which constitute the business under the name of the Andrew expectancy of life. The balance, after sub- Clyde Company, on the 19th of November, tracting the sum thus ascertained from the 1892, to recover the sum of $1,041.09, with incumbrance, should be borne by those in re- interest and costs; and an attachment was mainder. 3 Pom. Eq. Jur. § 1223, and note duly issued in said action, and levied upon 2, at page 213.

the land described in the complaint in this There is evidence in the case tending to action. Thereafter, on the 20th day of Deshow that the Missionary Society has agreed cember, 1893, Lieuallen and Lestoe obtained to refund to the defendant the $120 paid for judgment in said suit for the sum $1,446.84. the mission title, and that a percentage of On the 14th day of February, 1893, the said that amount has been tendered and is now Andrew Clyde and Anna Clyde, his wife, exe

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ber, 1892 (the date of the levy), and the lien of the judgment in that case relates back to that date. Said land was sold under the execution issued in said case, and the certificate of sale of the land issued to said Lieuallen and Lestoe. The sheriff's deed, if issued, will relate back to the date of the levy of the writ of attachment, and cut off all subsequent liens on said land, unless subsequent lien holders redeem said land from the execution sale to Lieuallen and Lestoe. Said mortgage bears date of February 14, 1893, and is subsequent to the lien of said attachment. The court erred in holding that said mortgage was a prior lien to said attachment. The judgment and decree are reversed, with directions to the court below to enter judgment in favor appellants, whereby their lien obtained by said attachment judgment and execution sale is made a prior lien to that of the mortgage of the plaintiff, the First National Bank of Palouse City. Costs awarded to appellants.

MORGAN, C. J., and HUSTON, J., concur.

cuted their certain mortgage upon the real estate described in the complaint to secure the payment of their promissory note for $7,010.27, due November 1, 1893, in favor of the plaintiff, the First National Bank of Palouse City, Wash. Thereafter said First National Bank brought this suit to foreclose said mortgage, and the said Lieuallen and Lestoe were made parties, for the reason following, stated in the complaint: "That the defendants Lieuallen and Lestoe have, or claim to have, some interest or claim upon said premises, or some part thereof, as judgment creditors;" and that such interest was subsequent to that of plaintiff's. The defendants answered the complaint, and denied that their interest in and to said land was subsequent to the lien of plaintiff's mortgage, and set up their said action brought on November 19, 1892, against Andrew Clyde, and their attachment proceedings therein, the judgment obtained in said case, the issuance of an execution to enforce said judgment, the sale of the land described in said notice of attachment under said execution, and the purchase thereof by said Lieuallen and Lestoe. The cause was tried by the court, and judgment and decree entered in favor of the First National Bank. The court held that said attachment was invalid, and that plaintiff's said mortgage was a prior lien to the attachment and judgment of the said Lieuallen and Lestoe against Andrew Clyde. The appeal is from the judgment. Respondent has not filed a brief in this court.

The main question in the case is as to the validity of the attachment levied November 19, 1892, in the case of Lieuallen and Lestoe V. Andrew Clyde. The record shows that on the 20th day of November, 1892, the notice of the levy of the attachment, together with a copy of the writ of attachment and a description of the property attached, was duly filed in the office of the auditor and recorder of Latah county,-the county in which said real estate is located. Section 4307, Rev. St., provides that a writ of attachment must be executed by the sheriff to whom it is delivered without delay if the undertaking mentioned in section 4305, Id., be not given. Subdivision 1 of that section is as follows: "(1) Real property standing upon the records of the county in the name of the defendant must be attached by filing with the recorder of the county, a copy of the writ together with a description of the property attached and a notice that it is attached.

The record shows a sufficient compliance with the provisions of said section in making the levy of said attachment. While it is a fact that the notice of levy is not as complete as it might have been made, it is sufficient to put any person dealing with said Clyde in regard to said land upon inquiry, and to give notice to the world of the lien claimed thereon by the said Lieuallen and Lestoe, under said attachment. Said attachment lien attached to said land on the 19th of Novem

(4 Idaho, 426) SIMMONS v. CUNNINGHAM et al. (Supreme Court of Idaho. April 6, 1895.) JURY-DISCHARGE OF PANEL-OPEN VENIRE

NONSUIT. 1. Under provisions of section 3961, Rev. St., the court may, for good cause, discharge reg. ularly drawn and summoned jurors, and order open venire for jurors to try causes at the term for which jurors were regularly drawn.

2. When plaintiff refuses to introduce evidence to prove his case, and defendants fail to produce evidence to prove their cross demand against plaintiff, it is error to instruct the jury to find for the defendant. Held, in that case action should have been dismissed, or a judgment of nonsuit entered.

(Syllabus by the Court.) Appeal from district court, Shoshone county; J. Holleman, Judge.

Action in ejectment by Moses S. Simmons against Clarence Cunningham and others to recover certain placer mining ground. Defendants had judgment, and plaintiff appeals. Reversed.

Albert Hagan and C. W. Beale, for appellant. C. W. O'Neil, for respondents.

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SULLIVAN, J. This is an action in ejectment to obtain possession of a mining claim. It appears from the record that at the commencement of the June term, 1894, of the district in and for Shoshone county there were present 36 jurors, who had been regularly drawn and summoned; that afterwards, on June 20th, 30 additional jurors were ordered by the court to be summoned on an open venire. On July 7th the court took a recess until July 16th, by reason of a resolution adopted by the bar of Shoshone county requesting the judge to adjourn the term to that date. This recess was taken, at the request of said bar, on account of a troubled

condition of affairs in said county, and it was y tired, and afterwards returned a verdict in doubtful whether the business of the court favor of defendants, and judgment was enwould be proceeded with on the day to which tered in their favor, decreeing that the dethe court adjourned; and the judge, not fendants were owners of and entitled to the wishing to keep the panel then summoned, possession of the placer mining ground in because of the great expense to the county, dispute. This appeal is from the judgment. discharged the jurors. On July 16th the court The first error assigned is that the court convened, and the conditions had become such erred in overruling the challenge to the panel. that it was deemed advisable for the court to Under this assignment of error, the appellant proceed with the business; and, it appearing contends that, as a jury regularly drawn and to the court that a jury was needed to prop- summoned had been discharged, the court was erly dispose of the business then before the not authorized by law to order an open venire court, an open venire was ordered, and 40 for a jury; that section 3961, Rev. St., is jurors summoned, and the court proceeded to the only one that permits the court to order dispatch the business of the term. The case on open venire, and the provisions of that at bar came regularly on for trial on Au- section permits such order only “whenever gust 2, 1894; and, a jury being about to be jurors are not drawn and summoned to atcalled to try the issues, appellant's counsel tend." Said section is as follows: interposed a challenge to the panel, which "Sec. 3961. Whenever jurors are not drawn challenge is as follows: "Comes now the and summoned to attend any court of record, plaintiff, and challenges the panel of the or a sufficient number of jurors fail to apjury herein in attendance on said court, and pear, such court may, in its discretion order the whole thereof, upon the following grounds, a sufficient number to be drawn and sumto wit: (1) That at the commencement of moned to attend such court; or it may, by the present term of court, in June, 1894, to an order entered on its minutes, direct the wit, June 13, 1894, a jury was regularly | sheriff of the county to summon so many good drawn from the box as provided by law; and and lawful men of his county to serve as said jury was in attendance upon this court jurors as the case may require. And in either until on or about the 7th day of July, 1891, case such jurors must be summoned in the when said panel, so drawn and in attendance, manner provided by the preceding section." was discharged by the court, and the whole We think, under a fair construction of thereof discharged; and thereafter, on the said section, if jurors are drawn and sum6th day of July, 1894, an open venire was is- moned and appear, and are thereafter dissued and placed in the hands of the sheriff charged by the court for good cause, and it to summon a jury from the body of the thereafter appears that a jury is necessary in county, and not from the names drawn from the trial of any case, the court may order an the jury box, and that such order and such open venire.

We do not hold that a court panel was unauthorized and illegal. (2) That may captionsly or through caprice discharge the court had no authority to discharge a the regularly drawn and summoned jurors, drawn jury in toto in the middle of or dur- and issue an open venire for others. But ing the term, and substitute therefor a panel when, as in this case, it was shown that, be. summoned by the sheriff on an open venire. cause of the excited condition of the people, (3) That the plaintiff is entitled as much as the turmoil and strife occasioned by strikes, any other litigant to have his case tried by the riots, and murders in the county in which jury regularly drawn, and in attendance upon court is being held, the court discharges the the court, and should not be forced to accept regular panel, and takes a recess, upon the a panel not drawn as provided by law. (4) reconvening of the court, if the business reThat in summoning and procuring the pres- quires it the court may issue an open venire, ent panel the court proceeded without au- and thus secure a jury. No claim is made by thority of law, and did not conform to title appellant that the court acted in bad faith in 3 of the Code of Civil Procedure, nor did discharging the regularly drawn jurors, or in the court conform to sections 3960–3962 of ordering the open venire, or that the sheriff the Revised Statutes of Idaho. (5) Said pan- acted corruptly in summoning the jurors. In el was not drawn and summoned as provided Bennett v. Iron Co. (Utah) 34 Pac. 61, the by section 3961. Wherefore plaintiff moves court says: "There is abundant authority for that this challenge be sustained; that said holding that, when there is no intimation or panel be discharged; and that he be not com- charge of bad faith, the court has the power, pelled to select therefrom jurors to try his whenever the necessity arises, and there is cause.” The challenge was denied by the no regular jury in attendance, to impanel court; whereupon the plaintiff announced that a jury to try a case which has been prophe would stand on his challenge, and refused erly set, and is ready for trial to a jury." to go to trial; whereupon the jury was im- Under the circumstances of the case at bar, paneled and sworn to try the cause, to which we do not think the court erred in denying the action plaintiff duly excepted, and refused to challenge. offer any testimony. The defendants offered The second error assigned is: "The court no testimony, but asked the court to instruct erred in submitting the case to the jury when the jury to find for the defendants, which in- plaintiff rested upon his challenge, but should struction was given; whereupon the jury re- have simply dismissed the plaintiff's case,

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