Brown v. Bryan
Idaho Supreme Court
APPEAL from District Court, Alturas County. Yenable purchased this deed of trust with funds, a large part of which belonged to Eoberts, and all of which had been money of the firm; the deed of trust became the property of the firm and was no longer capable of being foreclosed by advertisement under the power of attorney contained in it. Such foreclosure is in the nature of enforcing a penalty.
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APPEAL from District Court, Alturas County. Yenable purchased this deed of trust with funds, a large part of which belonged to Eoberts, and all of which had been money of the firm; the deed of trust became the property of the firm and was no longer capable of being foreclosed by advertisement under the power of attorney contained in it. Such foreclosure is in the nature of enforcing a penalty. It has been recognized by the decisions of this state from which we derive our practice, but it is not authorized or recognized in any statute. The statute expressly prohibits it. It pro-* vides “that…
1Opinion of the CourtMobgan, C. J.
In the view we take of this case there is no necessity of determining whether the trust deed given to the First National Bank of Hailey can be foreclosed by notice and sale, as was done in this case, or whether it must be foreclosed by suit as seems to be required by sections 4520 and 4523 of the Bevised Laws of Idaho. I may say, however, that this court has repeatedly decided that a deed absolute ■on its face and a contemporaneous contract for reconveyance upon payment of amount due grantee, that is, an article of de-feasance, although in a separate paper, constituted a mortgage, and must be…
2Cases cited4 opinions
- Kelley v. LeachmanIdaho Supreme Court · 1892
- Hawkins v. Spokane Hydraulic Mining Co.Idaho Supreme Court · 1891
- First National Bank of Lewiston v. WilliamsIdaho Supreme Court · 1890
- Wilson v. ThompsonIdaho Supreme Court · 1896
3Cited by3 opinions
- Dickens v. HestonIdaho Supreme Court · 1933
- Sturm v. UlrichCourt of Appeals for the Eighth Circuit · 1925
- Brown v. BryanIdaho Supreme Court · 1898