AILSHIE, J.
This is an appeal from a judgment in favor of respondents, directing compliance with and specific performance of an escrow agreement.
Numerous errors are assigned but they reduce themselves to two classes: First, that the evidence is insufficient to support the judgment; and secondly, that the court erred in failing to make findings on certain issues tendered by the cross-complaint.
It appears that respondents held a lease on the premises
here involved coupled with an option to purchase. Before the expiration of the lease, and about the month of August, 1941, they entered into oral negotiations looking to the sale by appellants and the purchase by respondents of the real property in question; and it was agreed by the parties that the purchase price should be.$2500 for the property clear of all encumbrances. About the 4th of September, 1941, respondents arranged with the Home Federal Savings and Loan Association (hereinafter designated as Loan Company) of Nampa, to make them a loan of $2500; and they accordingly executed their promissory note in favor of the Loan Company and secured the same by a mortgage on the premises they had agreed to purchase from appellants. Thereafter, and on September 15, 1941, the parties all met at the Loan Company’s office in Nampa and appellants executed their warranty deed to the premises and delivered it to the Loan Company in escrow, with the oral agreement and understanding, that the Loan Company should pay off all outstanding liens and encumbrances against the property out of the $2500 secured by the execution of the promissory note, and pay the balance to appellants and deliver them the deed.
It appears that, at the time of the execution of this deed and its delivery to the escrow holder, there was outstanding against the property taxes and assessments aggregating approximately $112.00, two mortgages in favor of the College of Idaho, each for $500.00, with accrued interest, and a justice court judgment for about $83.93.
It is not clear from the record as to whether all these items were enumerated and discussed at the time of the execution of the deed and its delivery in escrow; but it is quite certain that the Loan' Company was to clear the title, so that an abstract thereof would meet the requirements of the attorney who was to examine it and pass an opinion as to the sufficiency of the title. It was further understood, at the time of the execution of the deed, that appellants would call at the Loan Company’s office September 19th for whatever money was left for them after the satisfaction of these several liens and encumbrances. They failed to call for the money on the date agreed upon but later Mr. Altizer did call for the money and was furnished, by the Loan Company, a statement of the outstanding obligations . against the property and was tendered the balance remaining after satisfaction of the lien claims. Altizer refused to
accept the money and notified the Loan Company that he would not go through with the deal. Shortly thereafter this suit was filed against the Altizers and the Loan Company, to compel the company as escrow holder to carry out and perform the requirements of the escrow agreement and to deliver the deed to respondents, as the purchasers of the premises.
There is very little substantial conflict of evidence in the case. It is admitted that the Altizers agreed to sell the property for $2500 and executed and delivered the deed to the Loan Company in escrow. The only conflict, which is more -theoretical than real, arises out of an apparent difference between them over the payment of a judgment rendered in the justice’s court, transcript of which had been filed in the district court.
The Altizers both admit that the taxes were to be paid out of the $2500; and Mr. Altizer denied on the witness stand, that the College of Idaho mortgages were to be paid out of the $2500; but there is substantial evidence to support the contention that he did so agree and that the expense of abstract and opinion of an attorney was to be paid for out of this purchase price; and that the title was to be cleared before any money should be paid over to appellants. The deed executed and delivered to the escrow holder contains full warranty. This bound the vendors to furnish a
clear and marketable title. (Blaine County Canal Co. v. Mays et al.,
65 Ida. 190, 142 P. (2d) 589 and cases therein cited.
Appellants urge that there was a lack of mutuality of contract, for the reason that the parol agreements and understandings between the parties, had prior to the execution of the deed, were not reciprocal or mutual and not binding upon, both parties. It seems clear, however, that these conversations were simply the negotiations which culminated in the written contract, namely, the executed deed which was placed in escrow under a parol escrow agreement.
While a deed must be in writing, executed and acknowledged by the grantors, here husband and wife, the delivery of the deed — absolute or in escrow — is not required to be in writing. (19 Am. Jur., p. 422, sec. 6, p. 424, sec. 8;
Manning v. Foster,
49 Wash. 541, 96 P. 233, 18 L.R.A., N.S., 337, 126 Am. St. R. 876, 16 Ann. Cas. 95.) Delivery is necessarily an act extraneous and subsequent to the
writing and does not appear therein.
(Whitney v. Dewey,
10 Ida. 633, 655, 80 P. 1117, 69 L.R.A. 572;
Reed v. Reed,
117 Me. 281, 104 Atl. 227, 230.)
It is also suggested that this was a transaction involving community property in which husband and wife must join. The requirement for joinder only extends to “executing and acknowledging.” (Sec. 31-913,1.C.A.) After that is done, the husband may deliver the deed and collect the purchase price. (See
Hughes v. Thistlewood,
40 Kan. 232, 19 P. 629, a case which is very similar to this on the question of delivery of deed and collection of purchase price and which has been widely cited and followed. See also
Craddock v. Barnes,
142 N.C. 89, 54 S.E. 1003, 1006; 21 C.J., p. 888, sec. 34; 30 C.J.S., Escrows, sec. 13.
Let us next consider the complaint, that the court erred in failing to find on the allegations of the cross-complaint. The cross-complaint alleged that the plaintiffs were let into possession of the premises under a lease and option to purchase; and that they failed to surrender up possession at the expiration of their lease and were unlawfully holding over at the time they commenced this action.
It is true, that the court must find on all the material issues tendered by the pleadings.
(Cheesbrough v. Jensen,
62 Ida. 255, 257, 109 P. (2d) 889; sec. 7-302, I.C.A.) The findings in all cases must cover the
material issues necessary to support a judgment. (Uhrlaub v. McMahon,
15 Ida. 346, 97 P. 784;
Bentley v. Kasiska,
49 Ida. 416, 288 P. 897.) This rule, however, is subject to a number of variations.
It has been held that, in order to raise the question as to failure of the court to find on an issue, the aggrieved party must call the matter to the attention of the trial court, either by a requested finding, motion, or otherwise; and that failure to do so is a waiver of the error, if any has been committed.
(Mine, etc., Co. v.
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AILSHIE, J.
This is an appeal from a judgment in favor of respondents, directing compliance with and specific performance of an escrow agreement.
Numerous errors are assigned but they reduce themselves to two classes: First, that the evidence is insufficient to support the judgment; and secondly, that the court erred in failing to make findings on certain issues tendered by the cross-complaint.
It appears that respondents held a lease on the premises
here involved coupled with an option to purchase. Before the expiration of the lease, and about the month of August, 1941, they entered into oral negotiations looking to the sale by appellants and the purchase by respondents of the real property in question; and it was agreed by the parties that the purchase price should be.$2500 for the property clear of all encumbrances. About the 4th of September, 1941, respondents arranged with the Home Federal Savings and Loan Association (hereinafter designated as Loan Company) of Nampa, to make them a loan of $2500; and they accordingly executed their promissory note in favor of the Loan Company and secured the same by a mortgage on the premises they had agreed to purchase from appellants. Thereafter, and on September 15, 1941, the parties all met at the Loan Company’s office in Nampa and appellants executed their warranty deed to the premises and delivered it to the Loan Company in escrow, with the oral agreement and understanding, that the Loan Company should pay off all outstanding liens and encumbrances against the property out of the $2500 secured by the execution of the promissory note, and pay the balance to appellants and deliver them the deed.
It appears that, at the time of the execution of this deed and its delivery to the escrow holder, there was outstanding against the property taxes and assessments aggregating approximately $112.00, two mortgages in favor of the College of Idaho, each for $500.00, with accrued interest, and a justice court judgment for about $83.93.
It is not clear from the record as to whether all these items were enumerated and discussed at the time of the execution of the deed and its delivery in escrow; but it is quite certain that the Loan' Company was to clear the title, so that an abstract thereof would meet the requirements of the attorney who was to examine it and pass an opinion as to the sufficiency of the title. It was further understood, at the time of the execution of the deed, that appellants would call at the Loan Company’s office September 19th for whatever money was left for them after the satisfaction of these several liens and encumbrances. They failed to call for the money on the date agreed upon but later Mr. Altizer did call for the money and was furnished, by the Loan Company, a statement of the outstanding obligations . against the property and was tendered the balance remaining after satisfaction of the lien claims. Altizer refused to
accept the money and notified the Loan Company that he would not go through with the deal. Shortly thereafter this suit was filed against the Altizers and the Loan Company, to compel the company as escrow holder to carry out and perform the requirements of the escrow agreement and to deliver the deed to respondents, as the purchasers of the premises.
There is very little substantial conflict of evidence in the case. It is admitted that the Altizers agreed to sell the property for $2500 and executed and delivered the deed to the Loan Company in escrow. The only conflict, which is more -theoretical than real, arises out of an apparent difference between them over the payment of a judgment rendered in the justice’s court, transcript of which had been filed in the district court.
The Altizers both admit that the taxes were to be paid out of the $2500; and Mr. Altizer denied on the witness stand, that the College of Idaho mortgages were to be paid out of the $2500; but there is substantial evidence to support the contention that he did so agree and that the expense of abstract and opinion of an attorney was to be paid for out of this purchase price; and that the title was to be cleared before any money should be paid over to appellants. The deed executed and delivered to the escrow holder contains full warranty. This bound the vendors to furnish a
clear and marketable title. (Blaine County Canal Co. v. Mays et al.,
65 Ida. 190, 142 P. (2d) 589 and cases therein cited.
Appellants urge that there was a lack of mutuality of contract, for the reason that the parol agreements and understandings between the parties, had prior to the execution of the deed, were not reciprocal or mutual and not binding upon, both parties. It seems clear, however, that these conversations were simply the negotiations which culminated in the written contract, namely, the executed deed which was placed in escrow under a parol escrow agreement.
While a deed must be in writing, executed and acknowledged by the grantors, here husband and wife, the delivery of the deed — absolute or in escrow — is not required to be in writing. (19 Am. Jur., p. 422, sec. 6, p. 424, sec. 8;
Manning v. Foster,
49 Wash. 541, 96 P. 233, 18 L.R.A., N.S., 337, 126 Am. St. R. 876, 16 Ann. Cas. 95.) Delivery is necessarily an act extraneous and subsequent to the
writing and does not appear therein.
(Whitney v. Dewey,
10 Ida. 633, 655, 80 P. 1117, 69 L.R.A. 572;
Reed v. Reed,
117 Me. 281, 104 Atl. 227, 230.)
It is also suggested that this was a transaction involving community property in which husband and wife must join. The requirement for joinder only extends to “executing and acknowledging.” (Sec. 31-913,1.C.A.) After that is done, the husband may deliver the deed and collect the purchase price. (See
Hughes v. Thistlewood,
40 Kan. 232, 19 P. 629, a case which is very similar to this on the question of delivery of deed and collection of purchase price and which has been widely cited and followed. See also
Craddock v. Barnes,
142 N.C. 89, 54 S.E. 1003, 1006; 21 C.J., p. 888, sec. 34; 30 C.J.S., Escrows, sec. 13.
Let us next consider the complaint, that the court erred in failing to find on the allegations of the cross-complaint. The cross-complaint alleged that the plaintiffs were let into possession of the premises under a lease and option to purchase; and that they failed to surrender up possession at the expiration of their lease and were unlawfully holding over at the time they commenced this action.
It is true, that the court must find on all the material issues tendered by the pleadings.
(Cheesbrough v. Jensen,
62 Ida. 255, 257, 109 P. (2d) 889; sec. 7-302, I.C.A.) The findings in all cases must cover the
material issues necessary to support a judgment. (Uhrlaub v. McMahon,
15 Ida. 346, 97 P. 784;
Bentley v. Kasiska,
49 Ida. 416, 288 P. 897.) This rule, however, is subject to a number of variations.
It has been held that, in order to raise the question as to failure of the court to find on an issue, the aggrieved party must call the matter to the attention of the trial court, either by a requested finding, motion, or otherwise; and that failure to do so is a waiver of the error, if any has been committed.
(Mine, etc., Co. v. Idaho, etc., Mines Co.,
20 Ida. 300, 310, 118 P. 301;
Gould v. Hill,
43 Ida. 93, 251 P. 167;
Reid v. Keator,
55 Ida. 172, 184, 39 P. (2d) 926;
Mitchell v. Munn Warehouse Co.,
59 Ida. 661, 674, 86 P. (2d) 174.)
There is another variation from the rule which is recognized, to the effect, that failure to find on all the issues of the case will not result in a reversal-of the judgment, if the findings made by the trial court are inconsistent with
the theory advanced by the appellant or presented by his pleadings and are, standing alone, sufficient to support the judgment. In other words, if the findings already made are inconsistent with the allegations and theory of appellant’s case, the presumption will be indulged, that if findings had been made thereon, they would have been adverse to appellant.
(Stewart v. Stewart,
32 Ida. 180, 184, 180 P. 165;
Reid, v. Keator,
supra.)
The findings of the court in favor of respondents were in effect adverse findings upon the issues presented by the appellants’ cross-complaint.
Complaint is made by appellants because the court failed to make findings as to the amount due on each of the liens and encumbrances against the property that were to be deducted from the purchase price by the Loan Company and applied in payment and satisfaction of such claims. The answer to that complaint is, that no issue was made by the pleadings as to the
amount
of the claims or any one thereof; and no dispute arose over the amount of these several liens; but the real controversy and dispute was over the question as to whether or not, under the escrow agreement, these claims (College of Idaho mortgages, taxes and assessments, and the justice court judgment), whether much or little, were to be paid out of the purchase price for these premises. The court found that the respondents’ contention was upheld by the proofs and entered judgment accordingly. If the appellants desired to have the amount due on these claims determined in this suit, they should have made that an issue and submitted proof and asked for findings thereon.
The findings and judgment appear to be fully supported by the evidence, and the judgment should be affirmed, and it is so ordered. Costs awarded to respondents.
Holden, C.J., concurs.
Givens, J., concurs in the conclusion reached.