Ridpath v. Heller

129 P. 1054, 46 Mont. 586, 1913 Mont. LEXIS 9

• Court: Montana Supreme Court
• Decided: January 29, 1913
• Docket: No. 3,218
• Status: Published

Opinion

MR. JUSTICE SANNER

delivered the opinion of the court.

Action to recover for the breach of .a warranty against encumbrances. A demurrer to the complaint and an objection .to the introduction of any evidence under it were overruled; and at the close of the evidence for the respondent a motion for nonsuit was denied. Respondent had judgment according to the prayer of the complaint, and from that judgment and from an order overruling their motion for a new trial, defendants appeal. The principal questions presented are: (1) The sufficiency of the complaint, and (2) the admissibility of oral testimony by an attorney to establish the law of a sister state.

1. The complaint alleges that on July 16, 1899, the appellants sold and granted to respondent “by deed duly acknowledged in fee simple” certain lots in the city of Spokane; that said deed contained a covenant that the premises were free from all encumbrances, except taxes for the year 1898; that at the time said deed was made and delivered the said premises were not free from all encumbrances except taxes for 1898, but “were subject to a tax, charge or assessment theretofore duly assessed, charged and confirmed by the city of Spokane * * * and by the proper officers thereof, in the sum of $463.03,” and which was “a lien and encumbrance by law upon the said premises”; that by reason thereof and “to extinguish said tax or assessment and to protect said premises from the lien thereof and the enforcement of the same,” plaintiff was obliged to and did pay $722.33, for which amount judgment is prayed, with costs.

It will be noted that the supposed encumbrance referred to is born of some kind of tax or assessment imposed by the city of Spokane. "What the legal status of the city of Spokane is, what kind of tax, charge or assessment it imposed upon the property, what power it had to impose such a tax or assessment, how such power must be exercised, how it was exercised, and how the tax or assessment came to be a lien or encumbrance, are matters concerning which the complaint is silent. . No extended [1] discussion is needed to demonstrate the utter deficiency of such a complaint. A lien or encumbrance is not averred by the mere naked allegation of its existence; the facts should be fully stated. (25 Cyc. 684, par. 3; 13 Ency. Pl. & Pr. 124, par. 2 McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. 428.) To say, in the absence of other allegations, that real property was “subject to a tax, charge or assessment duly assessed, charged and confirmed,” which was “a lien and encumbrance by law,” is to recite a series of mere legal conclusions, ineffective for any purpose as a pleading. .

Nor does it specially aid the matter if we assume that the city of Spokane is a municipal corporation of the state of Washington. Nowhere outside of the law of Washington can there be anything which empowers the city of Spokane to levy any taxes or assessments of such character as to be liens or encumbrances upon real estate. If it has any such power, it must have it by virtue of some statutory provision of the state of Washington, [2] because the circumstances under which a tax or special assessment lien attaches so as to render a grantor liable on his covenant against encumbrances are wholly matters of statute. (11 Cyc. 1114, pars. 1, 3.) Now, the courts of this state do not [3] take judicial notice of the statutes of a sister state (Bank of Commerce v. Fuqua, 11 Mont. 285, 28 Am. St. Rep. 461, 14 L. R. A. 588, 28 Pac. 291; McKnight v. Oregon Short Line Ry. Co., 33 Mont. 40, 82 Pac. 661); they must be pleaded and proved as facts in the case, and to such effect that it may be readily seen that under them a cause of action exists. (11 Cyc. 1114; 5 Encyclopedia of Evidence, 808; Bank of Commerce v. Fuqua, supra; McKnight v. Oregon Short Line Ry. Co., supra.) Of course, these principles apply with especial force where, in addition to the statutes of a sister state, there is involved the existence and validity of the ordinances of cities within its boundaries.

2. Inasmuch as this case must be retried, we deem it advisable to refer briefly to the manner of proving the law of a sister [4] state. The rule is settled that where the unwritten law of a sister state is in question, resort may be had to the published reports of the decisions of the courts of such state, or to oral testimony of witnesses skilled in the subject (Rev. Codes, sec. 7908) ; but where the written law of a sister state is to be proved, other methods must be pursued. (U. S. Const., Art. IV, sec. 1; U. S. Rev. Stats., sec. 905; Rev. Codes, secs. 7906, 7907; Bank of Commerce v. Fuqua, supra; 36 Cyc. 1255.)

The judgment and order appealed from are reversed and the cause is remanded for a new trial.

Beversed and remanded.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.