Cross References.

Aircraft, damage from, lien to extent of injury,§ 21-205.

Attorney’s lien,§ 3-205.

Bankers’ liens,§ 45-808.

Carey Act liens,§ 42-2026 et seq.

Drainage district assessment liens,§§ 42-2935, 42-2936.

Factors’ liens,§ 45-807.

Forest fire protection, lien on property,§ 38-112.

Judgment liens,§§ 5-513, 10-1110.

Livestock, liens for feeding and pasturing,§ 45-805.

Mining claims, lien for assessments,§§ 47-1101, 47-1102.

Mining partnership property, liens on,§ 53-404.

Purchaser of real property, lien of,§ 45-804.

Repair of personal property, lien for,§ 45-806.

Secured transaction under Uniform Commercial Code,§ 28-9-101 et seq.

Seed liens,§ 45-304 et seq.

Service on personal property, lien for,§ 45-805.

Sheep disease control, cost of dipping sheep a lien,§ 25-146.

Transfer and inheritance tax a lien on property,§ 14-409.

Unclaimed property held for charges,§ 55-1401 et seq.

Vendors’ liens,§ 45-801 et seq.

Encumbrance.

An encumbrance may be defined as any right or interest in land to the diminution of its value, but consistent with the free transfer of the fee. Hunt v. Bremer, 47 Idaho 490, 276 P. 964 (1929).

Lien.

A lien is a charge upon property to secure payment of a debt and transfers no title to the property subject to the lien. Liberty Bankers Life Ins. Co. v. Witherspoon, Kelley, Davenport & Toole, P.S., 159 Idaho 679, 365 P.3d 1033 (2016).

Transfer in Trust.

Transfer in trust mentioned by this section is one which creates a trust and absolutely conveys title from grantor, and not a deed of trust which hypothecates the property for payment of the debt. Brown v. Bryan, 6 Idaho 1, 51 P. 995 (1896).

Cross References.

Animals running at large in herd districts, lien for damages,§ 25-2408.

Bridges and culverts across highways, costs a lien against premises of ditch owners,§ 40-2322.

Federal court judgments, lien of,§ 10-1110.

Insect pests and plant diseases, cost of abatement a lien,§ 22-2010.

Livestock breaking into inclosure,§ 25-2201.

Partition fences, lien when erected by one owner,§ 35-103.

Prior Lien.

Payments to satisfy a subsequent mortgage may not be added to the amount owing on a prior lien, as those earlier expenditures were not made on a prior lien, as required by this section. Spencer v. Jameson, 147 Idaho 497, 211 P.3d 106 (2009).

Second Deed of Trust.

Since the second deed of trust held by the seller of house was functionally equivalent to a mortgage, the holders’ lien was special; accordingly, this section entitled them to include payments they made to prevent foreclosure of the first deed of trust as part of the mortgage indebtedness created by their junior encumbrance. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984).

Usury.

Junior mortgagee has right to raise question of usury in respect to the first mortgage contract in the same manner as owner of the property. United States Bldg. & Loan Ass’n v. Lanzarotti, 47 Idaho 287, 274 P. 630 (1929).

Compiler’s Notes.

Section 33 of S.L. 1967, ch. 272 read: “Transactions validly entered into before the effective date specified in section 32 and the rights, duties and interest flowing from them remain valid thereafter and may be terminated, completed, consummated or enforced as required or permitted by any statute amended by this act as though such amendment had not occurred.”

Effective Dates.

Section 32 of S.L. 1967, ch. 272 read: “This act shall become effective at midnight December 31, 1967, simultaneously with the Uniform Commercial Code. It applies to transactions entered into and events occurring after that date.”

Chattel Mortgage Clause.

After-acquired property clauses in chattel mortgages are invalid insofar as applied to a shifting stock of merchandise, unless the mortgage contains a proper accounting provision. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

Failure to comply with the terms and conditions of the accounting provision of after-acquired property, as regards shifting stock, will invalidate a chattel mortgage. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

For protection of creditors, Idaho law requires a provision with reference to sales and accounting be incorporated on a shifting stock of goods; where such provision is ignored and a substituted provision never incorporated into a chattel mortgage on the shifting stock of merchandise, the mortgage is void. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

Where mortgagee failed to require that mortgagor comply with provision with respect to sales and accounting the mortgage did not constitute a valid lien on the shifting stock of logs and lumber, as against the trustee in bankruptcy, and this applies to the rights under a valid field warehouse arrangement. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

Where the evidence is not in conflict that the chattel mortgagee failed to require compliance by the bankrupt with accounting provisions of the mortgage, the court is not bound by the referee’s conclusion that the mortgage was valid as to the shifting stock of merchandise. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

Effective Dates.

Section 2 of S.L. 1955, ch. 145 declared an emergency. Approved March 12, 1955.

Evidence.

By reason of this section, parol evidence was admissible to prove that purported deeds were intended to be mortgages. Gem-Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966).

Priority.

The general rule in the United States is that if a future advance is obligatory, it takes its priority from the original date of the mortgage, and the subsequent creditor is junior to it; however, if the advance is optional, and if the mortgagee has notice when the advance is made that a subsequent creditor has acquired an interest in the land, then the advance loses its priority to that creditor. Idaho First Nat’l Bank v. Wells, 100 Idaho 256, 596 P.2d 429 (1979).

Deeds of trust are not liens: thus, the lien priority rule in this section does not extend to deeds of trust. Liberty Bankers Life Ins. Co. v. Witherspoon, Kelley, Davenport & Toole, P.S., 159 Idaho 679, 365 P.3d 1033 (2016).

Cross References.

Partition, lienholders may be brought into actions for,§§ 6-509 to 6-515.

Lien on Increase.

Provision in a contract for the lease of sheep whereby a lien is given on all increase to secure payment of rental therefor conveys no title to such increase. Solomon v. Franklin, 7 Idaho 316, 62 P. 1030 (1900).

Lien on Joint Property.

Where no severance of jointly owned stock certificates occurred before pledgor’s death, pledgee bank took as security the interest of but one of two joint tenants, and this interest extinguished when the pledgor failed to survive the other joint owner. Ogilvie v. Idaho Bank & Trust Co., 99 Idaho 361, 582 P.2d 215 (1978).

Possession of Mortgaged Property.

Mortgage may provide that mortgagee may take possession of mortgaged property. Larsen v. Roberts, 32 Idaho 587, 187 P. 941 (1919).

Lease of Sheep.

Provision in contract for lease of sheep declaring forfeiture of all interests of lessee in the sheep, wool, product, and increase thereof, in case of default in payment of rental thereof, is void. Solomon v. Franklin, 7 Idaho 316, 62 P. 1030 (1900).

Quieting of Title by Vendor of Realty.

Provisions for forfeiture in contract for failure to make payments in time and manner specified may be enforced by action to quiet title after due declaration of forfeiture. Clinton v. Meyer, 43 Idaho 796, 255 P. 316 (1927).

Quieting Title in Mortgagee.

It was error for the trial court, upon finding that purported deeds were in fact mortgages, to decree that, upon failure of the grantor to pay the sum adjudged to be owing within a specified time, title to the land should be quieted in the grantee. Gem-Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966).

Assumption of Mortgage Indebtedness.

Where purchasers bought the subject property and assumed and agreed to pay as a part of the purchase price the indebtedness payable to the original mortgagors, the mortgage given to secure such indebtedness as to such purchasers became a purchase money mortgage. Hagen v. Butler, 83 Idaho 427, 363 P.2d 712 (1961).

Mortgage Priority Agreements.

Irrespective of what may have been the status of the mortgages had the parties not agreed regarding the order of priorities, it is clear that by such agreement any rights the appellants might otherwise have had were waived. Parties affected thereby may agree to the order of priority between two or more mortgages. Hagen v. Butler, 83 Idaho 427, 363 P.2d 712 (1961).

Mortgage to Procure Money for Purchase Price.

Mortgage on preempted public land made to procure money to make final payment for the land is a purchase money mortgage within the meaning of this section, and has priority over subsequently accruing marital rights of mortgagor’s wife in the land, although she did not join in the mortgage. Kneen v. Halin, 6 Idaho 621, 59 P. 14 (1899).

Purchase Money Mortgages.

Both parties had purchase money mortgages where each party received a mortgage for a portion of the price of the property and received the mortgage at the time of conveyance, and the deed and both mortgages were part of one continuous transaction involving the purchase of the property. Estate of Skvorak v. Sec. Union Title Ins. Co., 140 Idaho 16, 89 P.3d 856 (2004).

A purchase money mortgage must be a part of one continuous transaction involving the purchase of land; however, the execution of the mortgage and the transfer of the deed need not be strictly contemporaneous. When a deed and mortgage are executed as part of the same transaction, the mortgage is not granted to the mortgagee after the mortgagor has obtained title; rather, the mortgagor takes title already encumbered by the mortgage. Insight LLC v. Gunter, 154 Idaho 779, 302 P.3d 1052 (2013). The taking of additional security on a mortgage, beyond the land being purchased, does not destroy the purchase money status of a mortgage. Insight LLC v. Gunter, 154 Idaho 779, 302 P.3d 1052 (2013).

Mortgage Priority.

According to Idaho’s recording statutes, a mortgage recorded first in time had priority against all other subsequent mortgagees, and where the title company executed and recorded its mortgage first (twelve days before the landowners) and the owners were not good faith purchasers because they knew of the company’s mortgage, such that because the owners did not record first and had at least constructive notice of the company’s mortgage, the company’s mortgage took priority. Estate of Skvorak v. Sec. Union Title Ins. Co., 140 Idaho 16, 89 P.3d 856 (2004).

Construction.

This statute makes the right of redemption absolute, provided the redemption is sought after debt becomes due and before period of redemption on foreclosure expires. Hannah v. Vensel, 19 Idaho 796, 116 P. 115 (1911).

It was error for the trial court, upon finding that purported deeds were in fact mortgages, to foreclose the debtor’s right of redemption by decreeing that, upon failure of the grantee to pay the sum adjudged to be owing within a specified time, title to the land should be quieted in the grantee. Gem-Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966).

Applicability.

This section does not apply to tax redemptions, because a tax deed is a conveyance and not a lien. Valiant Idaho, LLC v. JV LLC, 164 Idaho 280, 429 P.3d 168 (2018).

Usury.

Junior mortgagee has right to raise question of usury in respect to first mortgage contract in same manner as owner of property. United States Bldg. & Loan Ass’n v. Lanzarotti, 47 Idaho 287, 274 P. 630 (1929).

Prior Laws.

Former chapter 45, which comprised S.L. 1925, ch. 25, §§ 1 to 5, p. 37; S.L. 1929, ch. 39, §§ 1 to 5, p. 49; I.C.A.§§ 44-201 to 44-210, was repealed by S.L. 1967, ch. 262, § 8.

Former§§ 45-201 to 45-207, which comprised S.L. 1967, ch. 262, §§ 1 to 7, p. 733, were repealed by S.L. 1979, ch. 226, § 1 and the present sections substituted therefor.

ALR.

COMMISSIONER’S COMMENT

This Act is a successor to the Revised Federal Tax Lien Registrations Act as revised by the Conference in 1966. The changes made in the previous Act are brought about by the provisions of the Pension Reform Act which prescribes the method of perfecting the employer liability lien to the same as for federal tax liens.

Therefore, the Act has been changed and now applies to the employer liability lien established by Section 4068(a) of the Pension Reform Act as well as a federal tax lien. Other similar liens that may be perfected like a federal tax lien, such as the provisions for collection of federal fines contained in proposed revisions to the federal criminal laws, are within the scope of this Act.

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 45-202 was repealed. See Prior Laws,§ 45-201.

Prior Laws.

Former§ 45-203 was repealed. See Prior Laws,§ 45-201.

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 45-204, which comprised I.C.,§ 45-204, as added by 1983, ch. 40, § 2, p. 98, was repealed by S.L. 1992, ch. 156, § 2.

Another former§ 45-204 which comprised 1967, ch. 262, § 4, p. 733 was repealed by S.L. 1979, ch. 226, § 2, p. 733 and replaced by I.C.,§ 45-204, as added by 1979, ch. 226, § 2, p. 621 which was in turn repealed by S.L. 1983, ch. 40, § 1.

Compiler’s Notes.

The bracketed insertions in subsection (a) and in the introductory paragraph in subsection (b) were added by the compiler to reflect the 2001 revision of chapter 9, title 28, Idaho Code.

Prior Laws.

Former§ 45-205 was repealed. See Prior Laws,§ 45-201.

Another former§ 45-205, which comprised I.C.,§ 45-205, as added by 1979, ch. 226, § 2, p. 621, was repealed by S.L. 1992, ch. 156, § 2.

Prior Laws.

Former§ 45-206 was repealed. See Prior Laws,§ 45-201.

Prior Laws.

Former§ 45-207 was repealed. See Prior Laws,§ 45-201.

Compiler’s Notes.

These sections, which comprised S.L. 1925, ch. 25, §§ 3 to 5, p. 37; I.C.A.,§§ 44-208 to 44-210; am. 1951, ch. 251, § 9, p. 540; am. 1959, ch. 72, § 9, p. 157, were repealed by S.L. 1967, ch. 262, § 8.

Prior Laws.

The following former sections were repealed by S.L. 1989, ch. 359, § 1:

45-301. (1893, p. 49, ch. 3, § 1; am. 1895, p. 137, § 1; reen. 1899, p. 147, ch. 3, § 1; am. 1903, p. 93, § 1; reen. R.C. & C.L., § 5141; C.S., § 7372; I.C.A.,§ 44-301; am. 1967, ch. 272, § 11, p. 745).

45-302. (1893, p. 49, ch. 3, § 3; reen. 1899, p. 147, ch. 3, § 2; reen. R.C., § 5142; am. 1915, ch. 79, p. 192; reen. C.L., § 5142; C.S., § 7373; am. 1923, ch. 33, § 1, p. 36; am. 1927, ch. 182, § 1, p. 245; I.C.A.,§ 44-302).

45-303. (C.S., § 7373a, as added by 1923, ch. 33, § 1, p. 36; am. 1927, ch. 182, § 1, p. 245; I.C.A.,§ 44-303).

45-304. (C.S., § 7373b, as added by 1923, ch. 33, § 1, p. 36; am. 1927, ch. 182, § 1, p. 245; I.C.A.,§ 44-304).

Compiler’s Notes.

Section 3 of S.L. 1989, ch. 359 read: “This act shall not take effect unless and until a sufficient appropriation to support its implementation is passed for the fiscal year 1990.” An appropriation was made from the general appropriation to the secretary of state in order to implement this act and, therefore, it has gone into effect.

Decisions Under Prior Law

Exclusivity of Remedies.

Former section provided a lien on the crop as security for the payment of any judgment awarded; the wage claim statute,§ 45-615, on the other hand, provides for the measure of damages to be awarded. Neither the language nor the titles of the separate acts suggested that the remedies under the acts were mutually exclusive; the two statutes were intended to fulfill different purposes. Sage v. Richtron, Inc., 108 Idaho 837, 702 P.2d 875 (Ct. App. 1985).

Prior Laws.

Former§ 45-302 was repealed. See Prior Laws,§ 45-301.

Prior Laws.

Former§ 45-303 was repealed. See Prior Laws,§ 45-301.

Decisions Under Prior Law

Construction.

Generally, farm labor liens are purely statutory, and anyone claiming such a lien must substantially comply with the statute. Nohrnberg v. Boley, 42 Idaho 48, 246 P. 12 (1925); Sage v. Richtron, Inc., 108 Idaho 837, 702 P.2d 875 (Ct. App. 1985).

Enforcement Against Various Crops.

Where right of farm laborer’s lien arose by virtue of work on several different crops in season’s farm operations, the laborer could have demanded that such lien be enforced against the whole or any part of such crop or crops. Roberts v. Bean, 50 Idaho 680, 299 P. 1081 (1931).

Estoppel of Landlord.

Where landlord agreed to pay lienable labor before labor was performed, he may be estopped to claim his portion of crop to extent of such labor liens. Farm Credit Corp. v. Rigby Nat’l Bank, 49 Idaho 444, 290 P. 211 (1930).

Laborers Employed by Vendees.

Where sales contract stipulated that vendees should cultivate and care for orchard in good and husbandlike manner, and vendors retook possession and retained crops on account of vendees’ default in payments, vendors’ consent to employment of laborers by vendees was implied. Burlile v. Leith, 47 Idaho 537, 277 P. 428 (1929).

Where vendors of orchard regained title by forfeiture of sales contract and did not show any inclination to have laborers employed by vendees cease work or that they would not accept crops which laborers continued to assist in producing, laborers are entitled to lien. Burlile v. Leith, 47 Idaho 537, 277 P. 428 (1929).

Lienable and Nonlienable Items.

Where farm laborer performed services for which he was to be compensated under an entire contract embracing both lienable and nonlienable items, he was entitled to lien for value of lienable items only when their value could be distinguished from the value of nonlienable items. Wheatcroft v. Griffith, 42 Idaho 231, 245 P. 71 (1926).

Nature of Work.

One who performed labor in producing agricultural crop was entitled to a lien, no matter what the work, labor, or service may have been, so long as it was shown that such work was for a useful purpose, that charges were reasonable and that he had not been paid, and such lien took precedence over all other liens of whatever nature or description. Chapman v. A.H. Averill Mach. Co., 28 Idaho 121, 152 P. 573 (1915).

One who employed his teams and machinery in harvesting and threshing crop was entitled to a lien for the reasonable compensation for their use, as well as for his own labor. Chapman v. A.H. Averill Mach. Co., 28 Idaho 121, 152 P. 573 (1915).

Prior Laws.

Former§ 45-304 was repealed. See Prior Laws,§ 45-301.

Pre- and Post-Petition Liens.

Where seed potatoes were shipped in separate loads, both before and after a bankruptcy hearing, under state law priority a creditor could use a dismissed bankruptcy proceeding to jump ahead of another creditor who provided seed potatoes to the debtor and who held liens on both pre- and post-petition shipments. Tri River Chem. Co. v. TNT Farms, 226 Bankr. 436 (Bankr. D. Idaho 1998).

Compiler’s Notes.

These sections, which comprised C.S., §§ 7373c, 7373d as added by 1923, ch. 33, § 1, p. 36; am. 1927, ch. 182, § 1, p. 245; I.C.A.,§§ 44-305, 44-306, were repealed by S.L. 1989, ch. 359, § 1.

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 45-307, which comprised C.S., § 7373e, as added by 1923, ch. 33, § 1, p. 36; am. 1927, ch. 182, § 1, p. 245; I.C.A.,§ 44-307), was repealed by S.L. 1989, ch. 359, § 1.

Compiler’s Notes.

Section 3 of S.L. 1989, ch. 359 read: “This act shall not take effect unless and until a sufficient appropriation to support its implementation is passed for the fiscal year 1990.” An appropriation was made from the general appropriation to the secretary of state in order to implement this act and, therefore, it has gone into effect.

Decisions Under Prior Law

Necessity of Filing.

Where no claim of lien was filed, no lien attached and property could not be held against purchaser at execution sale. Nohrnberg v. Boley, 42 Idaho 48, 246 P. 12 (1925); Vollmer Clearwater Co. v. Union Whse. & Supply Co., 43 Idaho 37, 248 P. 865 (1926); Price v. Bray, 48 Idaho 268, 281 P. 470 (1929).

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 45-308, which comprised C.S., § 7373f, as added by 1923, ch. 33, § 1, p. 36; am. 1927, ch. 182, § 1, p. 245; I.C.A.,§ 44-308, was repealed by S.L. 1989, ch. 359, § 1.

Amendments.

The 2016 amendment, by ch. 202, in subsection (4), added the second sentence in the introductory paragraph and added paragraphs (a) through (d).

Compiler’s Notes.

The letter “s” and the words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 2016, ch. 202 declared an emergency. Approved March 24, 2016.

Decisions Under Prior Law

Amendment of Notice.

Refusal to allow amendment of notice after time for filing had expired was proper, particularly where proposed amendment would not have cured the defect. Linch v. Perrine, 51 Idaho 152, 4 P.2d 353 (1931).

Liberal Construction.

Former similar section was to be liberally construed in favor of the claimant, and this included the determination of whether the notice and claim of lien sufficiently described the property upon which the lien was sought and its location. Kerby v. Robinson, 58 Idaho 781, 80 P.2d 33 (1938).

Where contract of employment fixed wages and total hours of work, and a certain number of hours were devoted to nonlienable work, the percentage of wages devoted to lienable labor was a mathematical calculation and should not have been fixed by evidence of the real value of either lienable or nonlienable labor. Roberts v. Bean, 50 Idaho 680, 299 P. 1081 (1931).

Former similar section was to be liberally construed in favor of the farm laborer and this liberal construction included the determination of whether the notice and claim of lien sufficiently described the property upon which the lien was sought and its location. Sage v. Richtron, Inc., 108 Idaho 837, 702 P.2d 875 (Ct. App. 1985).

Necessity of Filing.

It is indispensable prerequisite of enforcement of such liens that claim of lien should be filed within time prescribed by statute. Nohrnberg v. Boley, 42 Idaho 48, 246 P. 12 (1925).

Sums paid laborers for harvesting crops could not be deducted from damages arising from conversion of crop where claims of liens for such services had not been filed, even though period for filing such claims had not expired. Vollmer Clearwater Co. v. Union Whse. & Supply Co., 43 Idaho 37, 248 P. 865 (1926). Where claimant alleged that lien was filed on certain date, general denial did not justify judgment on pleadings since it was the notice and not the lien that was to be filed. Linch v. Perrine, 51 Idaho 152, 4 P.2d 353 (1931).

Notice of Lien.

Where notice of lien described crop only as a crop of apples and there were in fact no apple trees growing on land described, such notice was insufficient to create a lien. Linch v. Perrine, 51 Idaho 152, 4 P.2d 353 (1931).

Notice of lien could not be amended after statutory time for filing had elapsed. Linch v. Perrine, 51 Idaho 152, 4 P.2d 353 (1931).

The lien granted by former similar section was against the crop, not against the land; therefore, it was the crop which should have been described so that it might have located with reasonable certainty. The statute did not require a legal description of the property from which the crop was grown. Sage v. Richtron, Inc., 108 Idaho 837, 702 P.2d 875 (Ct. App. 1985).

Notice to Vendee.

The lien may be enforced against farm products sold to a vendee, even though the vendee did not receive notice of the lien, if he did not demand sworn, written notice required by this section. Church v. Roemer, 94 Idaho 782, 498 P.2d 1255 (1972).

Sufficiency of Description.

Description in farm laborer’s lien notice which stated that it was intended to cover entire crop of hay produced for the year was sufficient and was not void for uncertainty. Beckstead v. Griffith, 11 Idaho 738, 83 P. 764 (1906).

Liens are not defective because the notices do not set forth the specific type of farm work performed in harvesting the crops; thus, a claim upon the crops “for labor performed, assistance rendered and expenses incurred” provides language meeting the essential requirements of former similar section. Sage v. Richtron, Inc., 108 Idaho 837, 702 P.2d 875 (Ct. App. 1985).

Sufficiency of Notice and Claim of Lien.

Where a notice of claim of lien was signed and verified before a notary public, filed in the proper county, and in substance stated the name of the owner, or reputed owner, of the crop for whom the work was done, who was lessee of the owner of the land on which the crops were grown, and the names of the parties who had possession of the crops at the time the lien was filed, and stated the work consisted of harvesting and hauling said crop to market, and the pay therefor, and giving the total amount claimed, it was sufficiently certain as against a demurrer to the complaint to foreclose the lien. Kerby v. Robinson, 58 Idaho 781, 80 P.2d 33 (1938).

Cross References.

Secretary of state,§ 67-901 et seq.

Effective Dates.

Section 2 of S.L. 1997, ch. 35 declared an emergency. Approved March 12, 1997.

Prior Laws.

Former§ 45-309, which comprised 1893, p. 49, ch. 3, § 3; reen. 1899, p. 147, ch. 3, § 3; reen. R.C. & C.L., § 5143; C.S., § 7374; I.C.A.,§ 44-309, was repealed by S.L. 1989, ch. 359, § 1.

Attorney Fees.

The plaintiff, as the producer who succeeded on a false labor lien claim, was awarded costs and reasonable attorney fees on appeal. Corder v. Idaho Farmway, Inc., 133 Idaho 353, 986 P.2d 1019 (Ct. App. 1999).

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 45-310, which comprised, 1895, p. 137, § 2; reen. 1899, p. 147, ch. 3, § 4; am. R.C. & C.L., § 5144; C.S., § 7375; am. 1923, ch. 24, § 1, p. 27; I.C.A.,§ 44-310, was repealed by S.L. 1989, ch. 359, § 1.

Decisions Under Prior Law

Change in Parties.

Where action was commenced against one corporation, plaintiff could not, more than six months after its claim had been filed, bring in another related corporation as a party defendant. Church v. Roemer, 94 Idaho 782, 498 P.2d 1255 (1972).

Cross References.

Secretary of state,§ 67-901 et seq.

Cross References.

Secretary of state,§ 67-901 et seq.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Cross References.

Secretary of state,§ 67-901 et seq.

Decisions Under Prior Law

Scope of Lien.

Where the crops were delivered to a grain company before the plaintiffs filed their claims of liens, pursuant to this section, but the grain company still had possession of the crops and had not paid the purchase price when it received notice of the claimed liens, the proceeds from the sale of the crops was subject to the liens; thus, the bond or under-taking stood for the payment of any judgment, including costs and attorney’s fees, rendered in favor of the lien claimants. Sage v. Richtron, Inc., 108 Idaho 837, 702 P.2d 875 (Ct. App. 1985).

Compiler’s Notes.

Section 3 of S.L. 1989, ch. 359 read: “This act shall not take effect unless and until a sufficient appropriation to support its implementation is passed for the fiscal year 1990.” An appropriation was made from the general appropriation to the secretary of state in order to implement this act and, therefore, it has gone into effect.

Cross References.

Secretary of state,§ 67-901 et seq.

Amendments.

The 2016 amendment, by ch. 202, added the exception at the end of the section.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 31 of S.L. 2001, ch. 208 provided that the act should take effect on and after July 1, 2001.

Section 3 of S.L. 2016, ch. 202 declared an emergency. Approved March 24, 2016.

Constitutionality.

This section is not unconstitutional in that it imposes a hardship upon owner of the property. Anderson v. Great N. Ry., 25 Idaho 433, 138 P. 127 (1914).

Construction.

Lien for services rendered in connection with hauling gravel and placing the gravel on mill yard site of the bankrupt, to facilitate stacking of lumber for drying and enable bankrupt to transport the logs to the mill, was not a lien for work, labor and services performed in logging or in manufacturing saw logs into lumber. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

This “loggers’ lien” statute is for the benefit of one who performs the labor and is not extended to one who hires the labor performed and pays for it. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

By this provision a person “performing work upon” any of the property herein enumerated is given the same lien as is given to a person who “assists in obtaining or securing” any such property. Anderson v. Great N. Ry., 25 Idaho 433, 138 P. 127 (1914).

This section confers lien upon laborers who work in the employ of contractor in moving a large quantity of railroad ties a distance of a couple of hundred feet from place where they were piled upon railroad company’s right of way and loading them upon cars for transportation. Anderson v. Great N. Ry., 25 Idaho 433, 138 P. 127 (1914).

Railroad ties sawed at sawmill in same manner as other lumber are not “other timber.” Abernathy v. Peterson, 38 Idaho 727, 225 P. 132 (1924).

Filing with Lumber Inspector.

Claim of lien is not void between parties because not filed with lumber inspector as required by former statute. Schultz v. Rose Lake Lumber Co., 27 Idaho 528, 149 P. 726 (1915).

Lien on Lumber Made from Logs.

Laborer performing work in securing logs to be manufactured is entitled to a lien therefor on lumber manufactured from logs. Abernathy v. Peterson, 38 Idaho 727, 225 P. 132 (1924).

Review of Denial of Penalty.

Where plaintiff brings an action seeking to recover wages and penalty for nonpayment, and the trial court holds against him with respect to the penalty, and the defendant appeals, the supreme court will not reverse the ruling of the court on denial of the penalty. People ex rel. Heartburg v. Interstate Eng’g & Constr. Co., 58 Idaho 457, 75 P.2d 997 (1937).

Construction.

Lien for services rendered in connection with hauling gravel and placing the gravel on mill yard site of the bankrupt, to facilitate stacking of lumber for drying and enable bankrupt to transport the logs to the mill, was not a lien for work, labor and services performed in logging or in manufacturing saw logs into lumber. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

“At the mill” does not mean exclusively “contiguous to” or “attached to” the mill, but may mean “near,” “in the vicinity of,” or “connected with” the mill. Abernathy v. Peterson, 38 Idaho 727, 225 P. 132 (1924).

Lumber and railroad ties sawed at sawmill and taken directly from mill to lumber yard, six miles away, which yard was the only one used in connection with the mill and the only one controlled by operators of mill, remained “at the mill where manufactured.” Abernathy v. Peterson, 38 Idaho 727, 225 P. 132 (1924).

Railroad ties sawed at sawmill in same manner as other lumber are “lumber,” as the term is used in this section, and not “other timber,” as used in§ 45-403. Abernathy v. Peterson, 38 Idaho 727, 225 P. 132 (1924).

An electrician who was personally employed by the owners of mill, and who personally performed work, was a “person,” under the loggers’ lien statute. Boone v. P & B Logging Co., 88 Idaho 111, 397 P.2d 31 (1964).

Where, during construction of mill, electrician ran conduits, installed lighting and connected motors, but did no maintenance or repair work connected with operation of the mill, his labor clearly entitled him to a lien on the mill, property of his employer, under§ 45-501, but not a logger’s lien under this section. Boone v. P & B Logging Co., 88 Idaho 111, 397 P.2d 31 (1964).

Application of Payment.

In bankruptcy proceeding involving the state’s claim of lien against nonwarehoused logs and lumber, for the sales price of the timber involved, substantial evidence supported referee’s finding that payment of stumpage under the bankrupt’s contract was erroneous. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

Construction.

The language of lien statutes in regard to timber cut into logs and removal of slash does not require that the lienor assert his lien against any particular parcel or parcels of lumber. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

Filing with Lumber Inspector.

Claim of lien is not void between parties because not filed with lumber inspector as required by former statute. Schultz v. Rose Lake Lumber Co., 27 Idaho 528, 149 P. 726 (1915).

Waiver.

Where state claimed a lien against nonwarehoused logs and lumber, but not against remainder of the lumber on the debtor’s premises, such was not a waiver of the right to collect the entire sum due. Diamond Nat’l Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964).

Compiler’s Notes.

The bracketed insertions near the beginning and near the end of the section were added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

Description of Property.

The description in the notice of lien was sufficient in that it stated the property as a stated number of board feet cut and lying in a named county even though it does not recite what species of timber the logs were cut from, identification being a matter of proof. Turnboo v. Keele, 86 Idaho 101, 383 P.2d 591 (1963).

The description of the property to be charged with the lien is required to be only such as will be “sufficient for identification.” If there appears enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty to the exclusion of others, it will be sufficient. Turnboo v. Keele, 86 Idaho 101, 383 P.2d 591 (1963).

Filing with Lumber Inspector.

Claim of lien not void as against parties thereto by reason of not being recorded by lumber inspector under former statute. Schultz v. Rose Lake Lumber Co., 27 Idaho 528, 149 P. 726 (1915).

Oral Notice.

Oral advice of a claim of lien is not a sufficient compliance with this section. Ashley Glass Co. v. Hoff, 123 Idaho 544, 847 P.2d 1171 (1993).

Single Claim Sufficient.

Where laborer seeks lien against manufactured product for work done under both§§ 45-401 and 45-402, he need not segregate the two amounts, but may file one claim for both. Abernathy v. Peterson, 38 Idaho 727, 225 P. 132 (1924).

Substantial Compliance.

In considering a contention challenging the sufficiency of compliance with statutory requisites, the court held that a substantial compliance in good faith meets such requirement; that the provisions of the lien statutes must be liberally construed in favor of the claimant with a view to effect their object and promote justice. Turnboo v. Keele, 86 Idaho 101, 383 P.2d 591 (1963).

Sufficient Service.

To be effective, a copy of a mechanic’s or materialman’s lien must be served on the “owner or reputed owner” within 24 hours of its being filed. Ashley Glass Co. v. Hoff, 123 Idaho 544, 847 P.2d 1171 (1993); Ashley Glass Co. v. Hoff, 123 Idaho 544, 850 P.2d 193 (1993).

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

Parties Added After Six Months.

In considering a contention challenging the sufficiency of compliance with statutory requisites, the court held that a substantial compliance in good faith meets such requirement; that the provisions of the lien statutes must be liberally construed in favor of the claimant with a view to effect their object and promote justice. Turnboo v. Keele, 86 Idaho 101, 383 P.2d 591 (1963).

Cross References.

Appeals,§ 13-201 et seq.

New trials, Idaho R. Civ. P. 59(a).

Cross References.

Indexes to be kept,§ 31-2404.

Recorder’s fees,§ 31-3205.

Compiler’s Notes.

The bracketed insertions near the middle and near the end of the section were added by the compiler to conform to the statutory citation style.

Personal Liability.

A logging company’s direct contractual relationship with lessees did not provide a reasonable basis to seek a personal judgment against a lessor, and its sole cause of action was for payment of logging-related work secured by a loggers’ lien. Montane Resource Assocs. v. Greene, 132 Idaho 458, 974 P.2d 510 (1999).

Award Improper.

Where the plaintiffs were never provided any opportunity to raise a defense to an award of attorney fees, the district court erred in awarding fees to the defendant. Bingham v. Montane Resource Assocs., 133 Idaho 420, 987 P.2d 1035 (1999).

Cross References.

Sales on execution,§ 11-302 et seq.

Constitutionality.

This section is not obnoxious to the fourteenth amendment to the federal constitution as depriving anyone of his property without due process of law or denying him the equal protection of the laws. Anderson v. Great N. Ry., 25 Idaho 433, 138 P. 127 (1914).

Purpose.

Purpose and intent of this section is to render every person who injures, destroys, or removes any of the property therein described on which a lien exists liable for the amount of claim held against property, or if property be of less value than lien claimed, then it allows claimant the damages which he has sustained by reason of the removal or destruction of the particular property. Anderson v. Great N. Ry., 25 Idaho 433, 138 P. 127 (1914).

Cross References.

Employers to post and record statements for protection of mechanics,§ 44-501 et seq.

Acknowledgement Required.

Claims of mechanics’ and materialmen’s liens filed under this chapter must be acknowledged in accord with§ 55-805 before they are entitled to be recorded, and the “verification” required under§ 45-507 does not serve the same purpose or function of an “acknowledgement” and cannot be a substitute therefor; accordingly, liens that were not acknowledged, or were acknowledged but where the certificate of acknowledgment did not substantially comply with Title 55, Chapter 7 of the Idaho Code, were not enforceable against the bankruptcy trustee. Kloos v. Jacobson, 30 Bankr. 965 (Bankr. D. Idaho 1983).

Agent Having Power to Employ Labor.

Where a contract for the sale of mining property provided that the purchasers were to complete an objective tunnel on said property to a certain distance within a specified time, it constituted the purchaser of the property an agent of the seller, entitling laborers employed to do the work to file liens on the property. Hendrix v. Gold Ridge Mines, Inc., 56 Idaho 326, 54 P.2d 254 (1936).

Agent of Owner.

Where credit is given to party in possession of a mining claim under an option to purchase and not to owner, no lien is enforceable against owner or his property. Steel v. Argentine Mining Co., 4 Idaho 505, 42 P. 585 (1895).

Every contractor, subcontractor, architect, builder, or other person having charge of building, or of its alteration or repair, shall be held to be agent of owner for purposes of lien law. McGill v. McAdoo, 35 Idaho 283, 206 P. 1057 (1922); Boise Payette Lumber Co. v. Weaver, 40 Idaho 516, 234 P. 150 (1925).

Contractor is statutory agent of owner for purpose of giving lien on premises by one who performs labor for contractor, but not for purpose of making laborer employed by contractor the direct contract employee of owner. Riggen v. Perkins, 42 Idaho 391, 246 P. 962 (1926).

Where contract for sale of real estate obligates purchaser to erect building, contract constitutes vendee agent of vendor and latter is person who causes building to be constructed within meaning of statute. Boise Payette Lumber Co. v. Sharp, 45 Idaho 611, 264 P. 665 (1928).

In action to foreclose mechanic’s lien, claimed for services in superintending construction of mercury ore reduction plant, defendant was not estopped to set up defense that payment was conditional upon success of plant by theory that failure was fault of original contractor as agent of owner. Smith v. Boyden, 49 Idaho 638, 290 P. 377 (1930). The mere relationship of landlord and tenant does not make the tenant the agent of the landlord for the furnishing of material or labor, hence the interest of the landlord is not subject to a mechanic’s lien for material and labor furnished under contract with the tenant unless there is consent or ratification thereto by the landlord. Bunt v. Roberts, 76 Idaho 158, 279 P.2d 629 (1955).

As a general principle, a tenant is not the “agent” of the landlord, for the purpose of this section, merely by virtue of a lessor-lessee relationship; however, a landlord’s interest in real property may be subjected to a lien, for work performed by agreement with the tenant, if the lease specifically requires the tenant to see that the work is done or, alternatively, the landlord’s interest may be subjected to a lien if he requests the work to be done. The latter alternative applies to any case where the landlord has done some act in ratification of, or consent to, the work done and the furnishing of material and labor. Christensen v. Idaho Land Developers, Inc., 104 Idaho 458, 660 P.2d 70 (Ct. App. 1983).

Where lease or contract of purchase requires lessee (or vendee) to make certain improvements, then the lessee (or vendee) is said to become the agent of the owner, and in those cases the interest of the owner as well as the interest of the lessee or vendee will become subject to the lien. Idaho Lumber, Inc. v. Buck, 109 Idaho 737, 710 P.2d 647 (Ct. App. 1985).

A tenant is not the “agent” of the landlord, for purposes of this section, merely by virtue of a lessor-lessee relationship; the burden of proving agency rests upon the party asserting it. Idaho Lumber, Inc. v. Buck, 109 Idaho 737, 710 P.2d 647 (Ct. App. 1985).

Attempted Creation by Trespasser.

One who unlawfully goes into possession of mining property against consent of owner cannot create liens against the property, under this section. Idaho Gold Mining Co. v. Winchell, 6 Idaho 729, 59 P. 533 (1899).

At the Instance of the Owner.

The phrase “at the request of the owner,” in§ 45-504 has the same meaning as the phrase “at the instance of the owner” in this section. Idaho Lumber, Inc. v. Buck, 109 Idaho 737, 710 P.2d 647 (Ct. App. 1985).

The owner’s knowledge and acquiescence in improvements are not sufficient to justify charging his interest with a lien; the improvement must have been “requested” by the owner of the land. Idaho Lumber, Inc. v. Buck, 109 Idaho 737, 710 P.2d 647 (Ct. App. 1985).

Attorney Fees.

If a contractor is awarded a foreclosure of his materialman’s lien, a reasonable attorney fee is an incident thereof. Barber v. Honorof, 116 Idaho 767, 780 P.2d 89 (1989).

Breach of Contract by Lienholder.

Where a contractor performed work under a construction contract in an unworkmanlike manner and left the premises in an unfinished condition, he had not substantially performed his contract and was not entitled to foreclosure of his lien. Nelson v. Hazel, 89 Idaho 480, 406 P.2d 138 (1965).

Breach of Contract by Owner Will Not Defeat Lien Rights.

Bearing in mind that the lien statute protects a contractor for all labor performed and materials furnished in either contracting or reconstructing a building, and that such statute must be liberally construed with the object in view of promoting justice, the owner of a building, reconstructed by a contractor, cannot deprive him of the protection of the statute by breaching the contract under which the labor was performed and materials furnished, since this would permit the owner to take advantage of, and profit by, his own wrong. Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938).

Claim of Materialman.

In order for a materialman to enforce his lien, it is not necessary for him to attempt to collect the payment from the original contractor before resorting to his lien rights. Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

A materialman who furnished building materials to a contractor upon an open running account without designation of any of such materials for any specific job in reliance exclusively upon the credit of the contractor is not entitled to a lien under this section. Layrite Prods. Co. v. Lux, 91 Idaho 110, 416 P.2d 501 (1966).

A supplier of materials who, pursuant to agreement with builder of which mortgagee was not cognizant, applied payments received from mortgagee and designated for the current project first to the unpaid balance on a previous project and refused a tender by the mortgagee of the balance due on the current project was not entitled to a lien on the current project premises. Mountain Home Redi-Mix v. Conner Homes, Inc., 91 Idaho 612, 428 P.2d 744 (1967).

In the absence of oppression or some other circumstances which would have justified denial of a foreclosure on a materialman lien, there was no reason it should not have been granted, even though the contractor failed to establish his right to the full amount claimed and was ultimately awarded a lesser amount. Barber v. Honorof, 116 Idaho 767, 780 P.2d 89 (1989).

Supplier of building materials who delivered the materials to another supplier rather than a subcontractor was too remote to the owner of a house that was built to utilize statutory mechanic’s lien provisions and foreclose on the house. L & W Supply Corp. v. Chartrand Family Trust, 136 Idaho 738, 40 P.3d 96 (2002).

Claim of Subcontractor.

In an action to recover upon a mechanic’s lien, although the prime contractor could have filed his lien for the reasonable value of the services performed and pay over the amount due to the subcontractor, the subcontractor could independently file a lien. Weber v. Eastern Idaho Packing Corp., 94 Idaho 694, 496 P.2d 693 (1972).

Commencement and Duration of Lien.

This section, in conjunction with§ 45-506, covers liens from the beginning or the commencement of work and the furnishing of materials. White v. Constitution Min. & Milling Co., 56 Idaho 403, 55 P.2d 152 (1936).

Construction.

Where, during construction of mill, electrician ran conduits, installed lighting and connected motors, but did no maintenance or repair work connected with operation of the mill, his labor clearly entitled him to a lien on the mill property of his employer under this section, but not a logger’s lien under§ 45-402. Boone v. P & B Logging Co., 88 Idaho 111, 397 P.2d 31 (1964). Under the statute, the legislature evidently intended to grant the right to claim a lien to any person who contributed labor or materials for the construction, alteration, or repair of a building or structure upon real property. Elec. Wholesale Supply Co. v. Nielson, 136 Idaho 814, 41 P.3d 242 (2001).

Counterclaim and Setoff.

Where a counterclaim amounts to a complete setoff against the amount of the lien, the lienholder is not entitled to foreclosure nor attorney’s fees. Dawson v. Eldredge, 89 Idaho 402, 405 P.2d 754 (1965).

Evidence.

Although Idaho statutes do not specifically require substantial performance of a contract before a lien attaches, according to Idaho case law, a contractor is required to demonstrate substantial performance. Thus, evidence of construction defects was relevant and should have been admitted in a dispute regarding the construction of a log home. Perception Constr. Mgmt. v. Bell, 151 Idaho 250, 254 P.3d 1246 (2011).

Extent of Lien.

Rights of lien claimant who is a contractor or subcontractor under the person, company or association which has a Carey Act contract from the state will extend to all rights, interests, claim, and title of such company in and to the works and irrigation system and lands thereunder, but lien claimant cannot, by foreclosure of his lien, acquire any greater right than that possessed by such company or association. Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 P. 789 (1908).

Lien extends only to such right, title and interest as owner had in the property at time lien attached. Smith v. Faris-Kesl Constr. Co., 27 Idaho 407, 150 P. 25 (1915).

Owners’ interest in mining claims is not lienable for work done at instance of their tenant, unless they made him their agent within meaning of the provisions of this section. Nicholson v. Smith, 31 Idaho 544, 174 P. 1008 (1918).

Lien against Carey Act irrigation system extends only to such interest as company had therein when lien attached. Pacific Coast Pipe Co. v. Blaine County Irrigation Co., 32 Idaho 705, 187 P. 940 (1920).

Filing Not a Taking.

The filing of a lien under this chapter is not a violation of due process, since there is no taking of a significant property interest. Kloos v. Jacobson, 30 Bankr. 965 (Bankr. D. Idaho 1983).

Finding Required as to Amount of Ground Necessary for Use.

Findings on Conflicting Evidence.

Where record disclosed no evidence concerning amount of land necessary for convenient use and occupation of dwelling for improvement, of which materials were furnished by lumber company, which foreclosed materialman’s lien, finding that the whole of the realty described in complaint was necessary for convenient use of dwelling was error and cause was required to be remanded for the purpose of receiving evidence thereon. Idaho Lbr. & Hdwe. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940). Findings on Conflicting Evidence.

A conflict in the evidence in an action to enforce a materialman’s lien will not warrant the overturning of the court’s findings. Idaho Lbr. & Hdwe. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

In an action to foreclose a mechanic’s lien for drilling a well, where the evidence was conflicting as to whether the well deviated from the perpendicular, as to whether the casing was broken and the effect of the alleged break upon the purity of the water, the finding of the court that the work was done in a good and workmanlike manner was conclusive. Durfee v. Parker, 90 Idaho 118, 410 P.2d 962 (1965).

Fuel Costs.

Recovery for fuel is not permissible under the mechanic’s lien statute because such is not labor and materials consumed in the process of structurally improving real property. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Insurance.

The providing of liability insurance coverage was neither labor nor material that was consumed in the process of structurally improving real property, and a claim for unpaid premiums relating to general liability and equipment insurance was not protected by the state’s lien statutes. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

While the legislature has provided protection for the recovery of worker’s compensation security in the mechanic’s lien laws, it has not so provided for any other form of insurance. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Interest on Claims of Laborers.

Interest on claim of laborers is not allowable from the date the work is finished, but is allowable after the expiration of three months from the date of the last item. Hendrix v. Gold Ridge Mines, Inc., 56 Idaho 326, 54 P.2d 254 (1936).

Plaintiff who leveled land of defendant pursuant to oral agreement but without any stipulation as to charges, and who recovered on the basis that a reasonable charge was $10 a day was entitled to recover interest at legal rate from date work was completed. Guyman v. Anderson, 75 Idaho 294, 271 P.2d 1020 (1954).

Interest on Lien.

Where garnishee judgments were entered against the defendants in an action by several subcontractors to foreclose their materialmen’s liens, but the amount deposited with the court by the defendants as full satisfaction of the garnishee judgments was actually less than the amount owed by the defendants, the court did not err in allowing interest to accrue on the lien amounts from the date they became due until the date that the full amounts were paid, since the tendered amount was less than the amount found due by the court and such tender did not estop the accumulation of interest upon any part of the debt. Acoustic Specialties, Inc. v. Wright, 103 Idaho 595, 651 P.2d 529 (1982).

Irrigation Works.

The statutory rate of interest to building supplier’s materialman’s lien on property owners’ home was proper; a lack of privity between the supplier and the owners precluded application of contract interest. Franklin Bldg. Supply Co. v. Sumpter, 139 Idaho 846, 87 P.3d 955 (2004). Irrigation Works.

Irrigation works constructed under the Carey Act are subject to the mechanic’s lien law. Continental & Com. Trust & Sav. Bank v. Corey Bros. Constr. Co., 208 F. 976 (9th Cir. 1913).

Performance of labor upon irrigation works authorizes lien thereon. Hill v. Twin Falls Salmon River Land & Water Co., 22 Idaho 274, 125 P. 204 (1912).

Property of irrigation district is not subject to mechanic’s lien. Storey & Fawcett v. Nampa & Meridian Irrigation Dist., 32 Idaho 713, 187 P. 946 (1920).

Judgment for Excess.

In an action to foreclose a mechanic’s lien brought by a subcontractor who furnished labor and materials in connection with the installation of a heating system in a dwelling, the subcontractor was not entitled to a personal judgment against the homeowner for any deficiency which might remain after the foreclosure sale, where the homeowner was not in a direct contractual relationship with the subcontractor. Pierson v. Sewell, 97 Idaho 38, 539 P.2d 590 (1975).

Judgment Not Reversed Because Allegedly Unlienable Item Claimed.

Where, in his complaint, the contractor alleged, among other things, that the owner employed him to draw plans and specifications for the repair and reconstruction of a residence, and the owner contended that the contractor was not entitled to a lien for this service, a judgment for a lump sum will not be disturbed on appeal, when it cannot be determined whether the court actually allowed anything for such service. Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938).

Judgment Notwithstanding the Verdict.

Where the district court concluded that an insurer’s recovery on its claim of lien was barred by the open account defense because substantial evidence demonstrated that the claimant attributed none of the insured’s premiums to its work in Idaho, the court’s decision to enter judgment notwithstanding the verdict was affirmed. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Labor, Payments Properly Applied to.

In a lumber company’s action to foreclose a materialman’s lien, evidence sustained finding that amounts paid by owners of building to lumber company on contractor’s demand and placed by company in labor account and paid out to laborers at instance of contractor and upon payroll furnished company by contractor were properly applied to labor account instead of to materials account. Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

Landlord’s Interest Subject to Lien.

Liberal Construction.

Where lease required that the tenants maintain the premises, and that they refrain from any unlawful use of the premises and where the landlord forwarded to the tenants the city electrical inspector’s letter enumerating 31 corrections needed in the electrical system on the premises, landlord’s interest was lienable on both the ground that the lease specifically required the work in question and on the ground that the landlord’s act of forwarding the city’s letter to the tenants represented a ratification or a consent for the work to be done. Christensen v. Idaho Land Developers, Inc., 104 Idaho 458, 660 P.2d 70 (Ct. App. 1983). Liberal Construction.

The provisions of this and cognate sections are liberally construed in the favor of the workman to obtain the ends of justice. Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938).

Since the purpose of this section is to compensate persons who perform labor upon or furnish materials to be used in the construction, alteration, or repair of a building or structure, this section will be liberally construed but the statutory requirements must be substantially complied with in order to perfect a valid mechanic’s lien. Pierson v. Sewell, 97 Idaho 38, 539 P.2d 590 (1975).

Lienable Items.

Person employed as foreman and watchman of a mine does not perform services of a professional or supervisory character, so as to preclude him from being entitled to a lien for his services under this section. Idaho Mining & Milling Co. v. Davis, 123 F. 396 (9th Cir. 1903).

Lien may be filed to secure profits upon contract when such profits are included in contract. Naylor v. Lewiston & S.E. Elec. Ry., 14 Idaho 789, 96 P. 573 (1908).

Charge for the use of tools in construction work, for which employer agrees to pay, is a lienable item. Naylor v. Lewiston & S.E. Elec. Ry., 14 Idaho 789, 96 P. 573 (1908).

Services performed as superintendent in superintending construction of railroad work constitute a lienable item. Naylor v. Lewiston & S.E. Elec. Ry., 14 Idaho 789, 96 P. 573 (1908).

Lien will be allowed for material furnished and actually used and consumed in the construction of the building or other structure, irrespective of fact that such use and consumption may not be in the main building or structure itself, but was necessarily incident to the carrying on of principal work and discharging of contract. Chamberlain v. Lewiston, 23 Idaho 154, 129 P. 1069 (1912).

Lien cannot be allowed for tools and appliances which are the property of contractors and may be used from time to time in other works and upon other contracts, and which are not consumed in the work or which do not go as a part of the building or improvement and necessarily enter therein. Ninneman v. Lewiston, 23 Idaho 169, 129 P. 1073 (1912).

Fact that contract contemplates construction of a sewer in connection with and as part of houses built under such contract brings services performed in putting in the sewer within the purview of this section and§ 45-504. Poynter v. Fargo, 48 Idaho 271, 281 P. 1111 (1929).

The lien statutes of Idaho cover the services of a contractor in the reconstruction of a residence, for planning and directing the work incident thereto. Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938).

The Supreme Court of Idaho has held that this statute grants the right to claim a lien for the value of the labor or material furnished and used in or about the construction, alteration or repair of the building, structure or other works. That right of lien is based on the theory that the claimant has, either by his labor or by the materials furnished and used, contributed to the construction or improvement of the property against which the lien is asserted; where the labor is not used or the materials are not incorporated into the building, structure or improvement, no lien on land or building results. Elec. Wholesale Supply Co. v. Nielson, 136 Idaho 814, 41 P.3d 242 (2001).

Lienable Work.

When a materialman delivers the material that was the subject of a lien to the site, the material is presumed to have been used in the project. Elec. Wholesale Supply Co. v. Nielson, 136 Idaho 814, 41 P.3d 242 (2001). Lienable Work.

The lien statutes would not cover such work as checking over tools and the like, and, therefore, where the filing of the lien was not within the time provided by law for the filing of the same after terminating the work, unless such work be considered, although such work was performed within the time for the filing of the lien, it cannot serve to extend the time to file the lien. Nelson v. Boise Petro. Corp., 54 Idaho 179, 32 P.2d 782 (1934).

Lien Attempted Against Excess Property.

The fact that a claim of lien embraces more property than is subject thereto does not work an invalidation of the lien, insofar as the property lawfully subject thereto is concerned, in the absence of fraud or bad faith. White v. Constitution Min. & Milling Co., 56 Idaho 403, 55 P.2d 152 (1936).

Lien Held Valid.

The fact that the amount on a notice of claim and the amount prayed for in a foreclosure complaint differ was not enough to render a materialman lien invalid. Barber v. Honorof, 116 Idaho 767, 780 P.2d 89 (1989).

Where a builder bought materials from a supplier to use on defendants’ building project, the supplier was entitled to a lien on the buildings that the project produced because, inter alia, (1) the supplier did not receive full payment for the materials the supplier furnished for the construction of the project, (2) the open account defense was inapplicable, (3) defendants remained in arrears on their debt to the builder, and (4) the lien was not destroyed by the fact that a liened building sat upon the land of a third person. BMC West Corp. v. Horkley, 144 Idaho 890, 174 P.3d 399 (2007).

Lien Prior to Attachment.

Evidence was sufficient to support a finding that lien claimants were employed from a date certain to the termination of employment on a date subsequent to attachment levy, and that their claims were prior to such levy. White v. Constitution Min. & Milling Co., 56 Idaho 403, 55 P.2d 152 (1936).

Lien Right as Property.

A materialman’s lien right, as provided for by this section, is a valuable property right, the waiver of which could be held to be the obtaining property under false pretenses. State v. Davis, 81 Idaho 61, 336 P.2d 692 (1959).

Lien Right for Materials Exists Without Attempt to Collect.

A lumber company which furnished materials to be used in improving owners’ dwelling could enforce lien against the building without first seeking payment for the materials from the original contractor. Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

Lien Under Sales Contract.

Materials Furnished but Not Used.

Where contract of purchase stipulates that purchaser shall erect certain buildings or make certain improvements, lien will attach to and bind interest of vendor, even though vendee forfeits his contract. Boise Payette Lumber Co. v. Sharp, 45 Idaho 611, 264 P. 665 (1928). Materials Furnished but Not Used.

Where there was sufficient competent evidence to sustain the court’s finding that materials were furnished to be used in owners’ building, materialman was not required, in order to enforce his lien against the building, to prove that the materials were used upon it. Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

An absolute lien is granted upon improved property to persons who furnish material to be used in improving it. Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

Nature of Contract as Affecting Lien.

Materialman who furnished material for erection of building under two separate contracts cannot tack one contract to the other by filing his claim of lien within required time from date of furnishing material pursuant to one of the contracts. Valley Lbr. & Mfg. Co. v. Driessel, 13 Idaho 662, 93 P. 765 (1907); Mine & Smelter Supply Co. v. Idaho Consol. Mines Co., 20 Idaho 300, 118 P. 301 (1911).

Where materials are furnished for same building or improvement in instalments and at intervals, and parties intend them to be included in one account and settlement, the entire account will be treated as a continuous and connected transaction, and time in which to file lien begins to run from the date of the last item of the account. Valley Lbr. & Mfg. Co. v. Driessel, 13 Idaho 662, 93 P. 765 (1907).

Contractor being only a special agent of owner, with limited power, his authority to bind property benefited for payment of value of material extends only to such material as is reasonably and ordinarily sufficient properly to construct or repair building in accordance with the plans and specifications thereof, or in pursuance of the agreement and contract entered into between owner and builder. Valley Lbr. & Mfg. Co. v. Nickerson, 13 Idaho 682, 93 P. 24 (1907).

Agency of contractor only authorizes purchase of, and creates lien for, materials reasonably necessary for buildings, building, or part of building embraced in single contract. Boise Payette Lbr. Co. v. Felt, 44 Idaho 377, 258 P. 169 (1927).

Nature of Lien.

Mechanic’s lien is wholly the creature of statute, and while the statutes must be construed liberally with a view to effecting their object and doing substantial justice, they must be taken as they are found. Utah Implement-Vehicle Co. v. Bowman, 209 F. 942 (D. Idaho 1913); Continental & Com. Trust & Sav. Bank v. Pacific Coast Pipe Co., 222 F. 781 (9th Cir. 1915); Phillips v. Salmon River Mining & Dev. Co., 9 Idaho 149, 72 P. 886 (1903); Boise Payette Lumber Co. v. Sharp, 45 Idaho 611, 264 P. 665 (1928); Poynter v. Fargo, 48 Idaho 271, 281 P. 1111 (1929).

Owner of building cannot be personally bound by the act of contractor under this section. Charge becomes one purely in rem and runs against the buildings or structure only. Valley Lbr. & Mfg. Co. v. Nickerson, 13 Idaho 682, 93 P. 24 (1907).

This statute is based on theory that whoever contributes labor or material whereby real property of another is enhanced in value shall be entitled to a lien upon the whole property in the sum due. Extent of lien when he comes to foreclose it must be measured by amount found due him on his contract at time of filing his lien. Steltz v. Armory Co., 15 Idaho 551, 99 P. 98 (1908). Materialman or laborer is given an absolute lien upon structure or improvement in which material was used or labor done, if he files his claim within the time required by law. Weeter Lbr. Co. v. Fales, 20 Idaho 255, 118 P. 289 (1911).

Intention of parties with reference to the question of a lien, is immaterial and nonessential. Essential fact is: Was material furnished or labor performed, and if so, was it furnished or performed in manner and under terms and conditions designated by the statute? If so, party is entitled to lien as matter of law. Mine & Smelter Supply Co. v. Idaho Consol. Mines Co., 20 Idaho 300, 118 P. 301 (1911).

Absolute lien is granted direct upon property, to person who performs labor upon or furnishes materials to be used in the building, structure or other improvement, without reference to whether such person is original contractor, subcontractor, laborer or materialman. Hill v. Twin Falls Salmon River Land & Water Co., 22 Idaho 274, 125 P. 204 (1912).

It is intent of mechanics’ lien law to grant absolute lien upon property to persons who perform labor or furnish material to be used in building or improving such structure. McGill v. McAdoo, 35 Idaho 283, 206 P. 1057 (1922); Boise Payette Lbr. Co. v. Weaver, 40 Idaho 516, 234 P. 150 (1925).

This section creates two distinct types of liens — a lien against some form of structure, alternately referred to in later sections of the lien law as an “improvement,” and a lien created in favor of one who improves the land itself, by grading, leveling, and the like. A person making the first type of improvement “has a lien upon the same,” i.e., the improvement itself. On the other hand, a person who improves any land by grading, filling or leveling, obtains a lien against “the same,” i.e., the land. Hopkins Northwest Fund, LLC v. Landscapes Unlimited, LLC, 151 Idaho 740, 264 P.3d 379 (2011).

Parol Negotiations Inadmissible.

In an action to enforce lien, negotiations, resting in parol only, to eliminate part of a contract whereby the purchaser became the agent of the seller of mining property, were not admissible. Hendrix v. Gold Ridge Mines, Inc., 56 Idaho 326, 54 P.2d 254 (1936).

Parties to Foreclosure Suit.

Other lienors need not be made parties to suit to foreclose mechanic’s lien unless plaintiff claims priority over their liens. Continental & Com. Trust & Sav. Bank v. Corey Bros. Constr. Co., 208 F. 976 (9th Cir. 1913).

Presumptions.

When there is a furnishing of materials in the sense of delivery, a rebuttable presumption arises that such materials were actually incorporated into the structure of improvement. Chief Indus., Inc. v. Schwendiman, 99 Idaho 682, 587 P.2d 823 (1978).

Property Not Subject to Lien.

Property Subject to Lien.

An assignee of a materialmen’s lien could not recover payment for paving a private drive in a development, because the property was not subject to the lien: the private drive was purchased before the developer of the land had contracted to have the paving done and there was no evidence that the developer, who hired the contractors to do the paving work, was acting as the purchaser’s agent. Intermountain Real Props., LLC v. Draw, LLC, 155 Idaho 313, 311 P.3d 734 (2013). Property Subject to Lien.

Party constructing branch or section of a new canal or performing labor thereon in its construction under a contract with owner is entitled to lien upon such branch for any balance due him for such labor and need not claim lien on whole system of canals of which the branch is a part. Creer v. Cache Valley Canal Co., 4 Idaho 280, 38 P. 653 (1894).

In order to entitle one to a lien for materials furnished, same must have been used on a particular building; there can be no lien for materials furnished under a general sale. Colorado Iron Works v. Riekenberg, 4 Idaho 705, 43 P. 681 (1896).

Term “mining claims,” as used in this section, includes patented as well as unpatented mining ground. Salisbury v. Lane, 7 Idaho 370, 63 P. 383 (1900).

Where quartz mill is located upon and belongs to a mine and is worked as a part of same, laborer who works as amalgamator in mill and is employed generally in keeping machinery in order, is entitled to a lien on mine for labor which he performs. Thompson v. Wise Boy Mining & Milling Co., 9 Idaho 363, 74 P. 958 (1903).

Where material is furnished contractor for work done on a city lot, under this section construed with§ 45-504, lien therefor attaches to lot, as contractor is agent of owner. Shaw v. Johnston, 17 Idaho 676, 107 P. 399 (1910).

Fact that labor performed and material furnished for construction, alteration, and repair of any building, structure or other works was carried away by floods and high water without any fault of man who performed labor and furnished material does not deprive laboring man or materialman from preferring his lien under the statute and such lien attaching to the real estate on which work was done or improvement made. Chamberlain v. Lewiston, 23 Idaho 154, 129 P. 1069 (1912).

Town site is not the subject of a lien under this section. Armitage v. Bernheim, 32 Idaho 594, 187 P. 938 (1919).

This section must be construed in pari materia with§ 45-505, providing that land on which building is constructed and convenient space about it is also subject to lien. Boise Payette Lumber Co. v. Sharp, 45 Idaho 611, 264 P. 665 (1928).

It is universal rule, in absence of specific provision therefor, that general statutes granting mechanics’ liens are not construed to include public buildings. Boise-Payette Lumber Co. v. Challis Indep. Sch. Dist. No. 1, 46 Idaho 403, 268 P. 26 (1928).

Lien is not destroyed by the fact that the liened buildings sit upon the land of a third person. BMC West Corp. v. Horkley, 144 Idaho 890, 174 P.3d 399 (2007).

Release of Liens.

Trial court properly released liens of record where there was a failure of proof by lienholders to establish their liens. Bunt v. Roberts, 76 Idaho 158, 279 P.2d 629 (1955).

Rental Charges.

Where leased equipment was not incorporated into, or consumed and destroyed by, a construction project, the rental charge for the equipment could not serve as the basis for a mechanic’s or materialman’s lien. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Repair Parts.

Suppliers of repair parts are not entitled to claim liens under this section. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Rights of Subcontractor.

Subcontractor can acquire no right under his lien that did not exist in original contractor, nor deprive water-right purchasers of their rights under their water contracts. Craig v. Smith, 33 Idaho 590, 196 P. 1038 (1921).

Statute, Knowledge of Not Essential.

It is wholly unnecessary for a laborer to know anything about the terms of the statute when he begins the work in order to claim the benefit of the lien law. Hendrix v. Gold Ridge Mines, Inc., 56 Idaho 326, 54 P.2d 254 (1936).

Sufficiency of Complaint.

Amendment of complaint, in contractor’s lien action, to add cause of action for breach of contract was unnecessary since this section requires the work be done or materials furnished “at the instance of the owner of the building or other improvement or his agent” and the allegation of an express or implied contract is contained in the allegation of a mechanic’s or materialman’s lien in the original complaint. Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455 (1973).

Sufficiency of Description.

Where a building is properly identified in the notice of claim of lien, a more general description of the land is sufficient, since the trial court has a reference point from which it may determine what land may be required for the convenient use of the building or structure; however, where there is no structure or one which has been inadequately identified, the notice of claim of lien must contain more particularized language in the description of the land in order to permit the court or interested third persons to identify the property against which the lien is asserted. Chief Indus., Inc. v. Schwendiman, 99 Idaho 682, 587 P.2d 823 (1978).

Where a materialman’s notice of claim of lien failed to identify in any way that portion of the 160 acres upon which the building was to have been located and failed to identify in any way the portion of the 160 acres which constituted “a convenient space about the same, or so much as may be required for the convenient use and occupation thereof,” the description of the real property in the notice of claim of lien was insufficient for identification of the property sought to be charged. Chief Indus., Inc. v. Schwendiman, 99 Idaho 682, 587 P.2d 823 (1978).

Sufficiency of Evidence.

Evidence was insufficient to justify judgment foreclosing the contractor’s lien. Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938).

Evidence sustained finding that, at special instance of contractor, lumber company furnished material for use in repairing owners’ dwelling, as against contention that the materialman was principal, on whose behalf contractor acted, and was not entitled to benefit of materialmen’s lien law for material furnished because of failure to complete the contract to repair. Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

Workman is entitled to lien though he does not establish full amount of alleged claim. Guyman v. Anderson, 75 Idaho 294, 271 P.2d 1020 (1954).

Tenant Contracting for Work.

Section 45-605 requiring claimant to establish full amount of claim in order to recover a penalty does not apply to suit to foreclose mechanic’s lien, since lien is for security and is not a penalty. Guyman v. Anderson, 75 Idaho 294, 271 P.2d 1020 (1954). Tenant Contracting for Work.

Liens could not be foreclosed against tenant who contracted for material and labor where there was no proof that he had a tenant’s interest in the real estate. Bunt v. Roberts, 76 Idaho 158, 279 P.2d 629 (1955).

No lien was acquired against landlord’s interest where the evidence showed that work, labor and material were furnished solely at the request of the tenant. Bunt v. Roberts, 76 Idaho 158, 279 P.2d 629 (1955).

Where the “authorization” given by lessor for alterations to his property really amounted only to consent to have lessee expend approximately $40,000 in remodeling effort, contractor never looked to nor relied upon lessor for any part of the remodeling cost until after it had done the work and lessee had failed to pay for it, and lessee expected to exercise his option to purchase at a predetermined price which was consistent with the value of the premises and lots before the remodeling, it could be said that only the lessee expected to gain from the improvements, and the district court did not err in denying a lien against lessor’s interest in the property. Idaho Lumber, Inc. v. Buck, 109 Idaho 737, 710 P.2d 647 (Ct. App. 1985).

Where lease gave lessee the right to make improvements, but did not give any corresponding right to lessor to require any particular improvement, it could not be said as a matter of law that the work done and materials furnished were made “at the instance of” the lessor. Idaho Lumber, Inc. v. Buck, 109 Idaho 737, 710 P.2d 647 (Ct. App. 1985).

Time Book Admissible in Evidence.

A time book is admissible in evidence for whatever it may show respecting the number of hours of labor and number of men who worked upon a building sought to be subjected to the lien; and an objection that it does not show the contractor’s time or material furnished is unavailing. Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938).

Time for Filing.

After substantial completion of building, lienor cannot extend time of lien by unreasonably or purposely delaying completion in some unimportant detail. Gem State Lbr. Co. v. Witty, 37 Idaho 489, 217 P. 1027 (1923).

Where time for filing lien would otherwise have lapsed and claimant relies upon delivery of additional material, it must not only be shown that material was actually used but was reasonably necessary to complete building according to terms of contract. Gem State Lbr. Co. v. Witty, 37 Idaho 489, 217 P. 1027 (1923).

Waiver of Lien.

Intention to waive must clearly appear and will not be presumed or implied. Smith v. Faris-Kesl Constr. Co., 27 Idaho 407, 150 P. 25 (1915).

Who Entitled to Lien.

Where a property owner secured a lien waiver from a subcontractor furnishing labor and materials for the construction of a dwelling and consideration for subcontractor’s execution of the lien waiver was the promise of payment in full, upon the failure of subcontractor to receive payment his purported waiver was of no effect. Pierson v. Sewell, 97 Idaho 38, 539 P.2d 590 (1975). Who Entitled to Lien.

Purpose of statute is to compensate anyone who performs labor upon, or furnishes, material to be used in construction, alteration, or repair of building or structure. Boise Payette Lbr. Co. v. Weaver, 40 Idaho 516, 234 P. 150 (1925).

Although corporation is “a person” within statutory contemplation, it is not entitled to laborer’s lien within meaning of this section. Riggen v. Perkins, 42 Idaho 391, 246 P. 962 (1926).

Words “every person who shall perform labor” designate ordinary laborers who perform actual physical toil and do not include that higher and better paid class of employees whose duties are confined to superintendence and management, unless such class is expressly mentioned in statute. Riggen v. Perkins, 42 Idaho 391, 246 P. 962 (1926).

Where a laborer is employed to be the superintendent and manager, in looking after, and taking care of, property and to plan, inspect and help with work when necessary, he and such labor come within the provisions of this section. White v. Constitution Min. & Milling Co., 56 Idaho 403, 55 P.2d 152 (1936).

In order to bring an action to collect compensation for work or labor performed and materials supplied in a construction project, the contractor must allege and prove that he was a duly registered contractor or exempt from registration at all times during the performance of such act or contract. Parkwest Homes LLC v. Barnson, 149 Idaho 603, 238 P.3d 203 (2010).

Work Must Be Performed.

During the time an employee held himself in readiness to perform labor, although he may recover therefor, he cannot file a lien within the time required by law where that is the last work performed, and, since it is unlienable, it cannot be considered in determining the time within which a lien must be filed. Nelson v. Boise Petro. Corp., 54 Idaho 179, 32 P.2d 782 (1934).

If an employer desires to keep a laborer in his employ, regardless of whether he is performing labor all the time or not, he may do so, but he cannot escape liability to pay wages during the time work is not being done. But because the employee is not employed in the performance of labor, as contemplated by the statute, he is not entitled to a lien to secure his wages during the time he is idle. Nelson v. Boise Petro. Corp., 54 Idaho 179, 32 P.2d 782 (1934).

Idaho Law Review.

Idaho Law Review. — Giving Mechanic’s Lien Rights to Design Professionals in Idaho: The Logical Solution, Josh Sundloff. 49 Idaho L. Rev. 205 (2012).

ALR.

Surveyor’s work as giving rise to right to mechanic’s lien. 35 A.L.R.3d 1391.

Sufficiency of designation of owner in notice, claim, or statement of mechanic’s lien. 48 A.L.R.3d 153.

Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building, as supporting a mechanic’s lien or as extending time for filing such a lien. 51 A.L.R.3d 1087.

Assertion of statutory mechanic’s or materialman’s lien against oil and gas produced or against proceeds attributable to oil and gas sold. 59 A.L.R.3d 278.

Priorities as between previously perfected security interest and repairman’s lien on motor vehicle under Uniform Commercial Code. 69 A.L.R.3d 1162.

Architect’s services as within mechanics’ lien statute. 31 A.L.R.5th 664.

Subjection of municipal property, or alleged municipal property, to mechanics’ liens. 81 A.L.R.6th 363.

Compiler’s Notes.

These sections, which comprised 1909, p. 165, §§ 1, 2; reen. C.L. §§ 5111a, 5111b; C.S., §§ 7341, 7342; am. 1929, ch. 254, § 1, p. 518; I.C.A.,§§ 44-502, 44-503; am. 1933, ch. 164, § 1, p. 292, were repealed by S.L. 1965, ch. 28, § 7. For present comparable law, see§§ 54-1925 to 54-1930.

Application.

If a contractor constructs sidewalk in front of city lot, on a street, he is, under§ 45-501, to be deemed agent of owner, and under this section, a lien for materials furnished contractor attaches to the lot. Shaw v. Johnston, 17 Idaho 676, 107 P. 399 (1910).

Because a materialmen’s lien claim arising from the provision of construction labor and materials for the development of a golf course was a lien upon the land as described in§ 45-501 and this section, the designation requirement of§ 45-508 did not apply. Hopkins Northwest Fund, LLC v. Landscapes Unlimited, LLC, 151 Idaho 740, 264 P.3d 379 (2011).

Lienable Items.

Where contract calls for sewer construction in connection with certain houses, claim for labor and material furnished is lienable under this section. Poynter v. Fargo, 48 Idaho 271, 281 P. 1111 (1929).

Lien Under Sales Contract.

Work done on land for party holding contract for purchase thereof did not entitle person doing work to lien on land as against owner. Parker v. Northwestern Inv. Co., 44 Idaho 68, 255 P. 307 (1927).

Request Construed.

Where sewer construction was done at instance and request of vendee in possession, with knowledge of vendor, and subsequently vendee became owner by completing his contract, mechanic’s lien attached in suit to foreclose lien. Poynter v. Fargo, 48 Idaho 271, 281 P. 1111 (1929). Request Construed.

The phrase “at the request of the owner” in this section has the same meaning as the phrase “at the instance of the owner” in§ 45-501. Idaho Lumber, Inc. v. Buck, 109 Idaho 737, 710 P.2d 647 (Ct. App. 1985).

Amount of Land to be Determined.

Under this section, it is necessary that the court determine the amount of land around the structure required for its convenient use and occupation and, therefore, subject to the lien; and where the court has so failed to do, the case will be remanded to the trial court with instructions to determine such amount of land and make proper findings. Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938); Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

Application and Construction.

Where one party makes improvements on land with consent of owner and under license from option holder on property, there can result no lien against such property in possession of original owner. Boise Payette Lbr. Co. v. Bickel, 42 Idaho 245, 245 P. 92 (1926).

One constructing buildings on land owned by another is bound to take notice of owner’s record title, when it comes to enforcing his lien against property. Boise Payette Lbr. Co. v. Bickel, 42 Idaho 245, 245 P. 92 (1926).

This section must be construed in pari materia with§ 45-501. Boise Payette Lumber Co. v. Sharp, 45 Idaho 611, 264 P. 665 (1928).

Complaint Need Not Allege Amount of Land.

In an action to enforce a contractor’s lien, it is unnecessary for the complaint to plead the amount of land required for the convenient use and occupation of the property. Robertson v. Moore, 10 Idaho 115, 77 P. 218 (1904), overruled on other grounds, Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108 (1918); Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938).

Determination of Necessary Land.

It is error for court in decreeing foreclosure of mechanic’s lien to fail to find amount of land necessary for the convenient use of the property to be sold. Robertson v. Moore, 10 Idaho 115, 77 P. 218 (1904), overruled on other grounds, Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108 (1918); Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938).

Judgment of foreclosure was not sustained by evidence where findings of fact were based upon a surveyor’s report as to the amount of land necessary for convenient use of the barn but no testimony of the surveyor was taken at the trial in action brought by contractor for lien on barn, under this section ordering determination of land necessary for use and occupation of building. Mackey v. Eva, 80 Idaho 260, 328 P.2d 66 (1958).

In an action to foreclose a mechanic’s lien for drilling a well, where defendant testified that he planned to use the water from the well for culinary use only and there was evidence that he planned to use it to irrigate his entire tract of ground, it was not error for the court to find that the entire tract was required for the convenient use and occupation of the well. Durfee v. Parker, 90 Idaho 118, 410 P.2d 962 (1965).

Where the court found work had been performed on 200 acres of land, indicating that the land had been benefited as a farming unit, the extent of the lien foreclosures on that land was not too broad in that the court failed to find what portion of the land was benefited. Weber v. Eastern Idaho Packing Corp., 94 Idaho 694, 496 P.2d 693 (1972).

Where a building is properly identified in the notice of claim of lien, a more general description of the land is sufficient, since the trial court has a reference point from which it may determine what land may be required for the convenient use of the building or structure; however, where there is no structure or one which has been inadequately identified, the notice of claim of lien must contain more particularized language in the description of the land in order to permit the court or interested third persons to identify the property against which the lien is asserted. Chief Indus., Inc. v. Schwendiman, 99 Idaho 682, 587 P.2d 823 (1978).

Extent of Lien.

Lien may be foreclosed against interest in real property less than that of fee simple title, as whatever interest debtor may have in property may be foreclosed in action brought for that purpose. Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 P. 789 (1908); Naylor v. Lewiston & S.E. Elec. Ry., 14 Idaho 789, 96 P. 573 (1908). Lien is not destroyed by the fact that the liened buildings sit upon the land of a third person. BMC West Corp. v. Horkley, 144 Idaho 890, 174 P.3d 399 (2007).

Foreclosure of Lien.

Materialman’s lien cannot be foreclosed on land when there is no structure on land for which material was furnished. Karlson v. National Park Lbr. Co., 46 Idaho 595, 269 P. 591 (1928).

Judgment in action to foreclose materialman’s lien must determine location and ownership of building, and defendants in such action are estopped from thereafter making any claim to building on theory that location was other than that described in judgment. Karlson v. National Park Lbr. Co., 46 Idaho 595, 269 P. 591 (1928).

Under the provisions of this statute, the court is required to determine the amount of land required for convenient use and occupation of the property to be sold and this cannot be extended to reach realty afterwards acquired by the defendant unless so determined by the court. Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945).

In mechanic’s lien foreclosure where two judgment claimants assigned their judgments to another judgment claimant and heirs of deceased owner assigned their interest to same assignee so as to cause a merger of the liens with the title, an unassigned recorded judgment of another claimant is a cloud on the title which must be removed to render same marketable. Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945).

The statutory provision that judgments become liens on all property judgment debtor has at the time of rendition or that he may thereafter acquire is not applicable to judgment foreclosing mechanics’ lien. Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945).

Lien Held Valid.

Where a builder bought materials from a supplier to use on defendants’ building project, the supplier was entitled to a lien on the buildings that the project produced because, inter alia, (1) the supplier did not receive full payment for the materials the supplier furnished for the construction of the project, (2) the open account defense was inapplicable, (3) defendants remained in arrears on their debt to the builder, and (4) the lien was not destroyed by the fact that a liened building sat upon the land of a third person. BMC West Corp. v. Horkley, 144 Idaho 890, 174 P.3d 399 (2007).

Lien Under Sales Contract.

Where contract of sale required construction of building by vendee, not only buildings, but vendor’s interest in land, was subject to lien. Boise Payette Lumber Co. v. Sharp, 45 Idaho 611, 264 P. 665 (1928).

If vendee has not completed his purchase, lien attaches only to vendee’s interest. Poynter v. Fargo, 48 Idaho 271, 281 P. 1111 (1929).

Judgment rendered on complaint alleging that materials were furnished to vendee under sales contract for construction of buildings on premises, with the knowledge and consent of vendor, was not subject to collateral attack. United States Nat. Bank v. Humphrey, 49 Idaho 363, 288 P. 416 (1930).

Property Subject to Lien.

Townsite is not the subject of a lien under this section. Armitage v. Bernheim, 32 Idaho 594, 187 P. 938 (1919).

The land upon which a lien may be asserted is expressly referenced to and made dependent upon the location of the building, structure or improvement; therefore, a lien may not be acquired against the land if one cannot be acquired against the building, structure or other improvement. Chief Indus., Inc. v. Schwendiman, 99 Idaho 682, 587 P.2d 823 (1978).

A claim of lien is not invalid simply because it describes more property than is properly subject to the lien; so long as there is no fraudulent intent on the part of the lien claimant and no one is injured by the overly broad property description, the land properly subject to the lien is for the court to determine, after hearing all the evidence. Beall Pipe & Tank Corp. v. Tumac Intermountain, Inc., 108 Idaho 487, 700 P.2d 109 (Ct. App. 1985).

Reliance on Credit of the Land.

To obtain a lien against the land upon which the improvement is constructed, the lien claimant must have relied upon the credit of the land for payment and not merely on the personal credit of the purchaser. Beall Pipe & Tank Corp. v. Tumac Intermountain, Inc., 108 Idaho 487, 700 P.2d 109 (Ct. App. 1985).

Sufficiency of Identification.

Where a materialman’s notice of claim of lien failed to identify in any way that portion of the 160 acres upon which the building was to have been located and failed to identify in any way the portion of the 160 acres which constituted “a convenient space about the same, or so much as may be required for the convenient use and occupation thereof,” the description of the real property in the notice of claim of lien was insufficient for identification of the property sought to be charged. Chief Indus., Inc. v. Schwendiman, 99 Idaho 682, 587 P.2d 823 (1978).

Idaho Law Review.

Idaho Law Review. — Giving Mechanic’s Lien Rights to Design Professionals in Idaho: The Logical Solution, Josh Sundloff. 49 Idaho L. Rev. 205 (2012).

ALR.

Enforceability of single mechanic’s lien upon several parcels against less than the entire property liened. 68 A.L.R.3d 1300.

Commencement of Lien.

This section, in conjunction with§ 45-501, covers liens from the beginning of work and the furnishing of materials. White v. Constitution Min. & Milling Co., 56 Idaho 403, 55 P.2d 152 (1936).

Lien Superior to Attachment.

Evidence was sufficient to support a finding that lien claimants were employed from a date certain to the termination of the work on a date subsequent to attachment levy, and that their claims were prior to such levy. White v. Constitution Min. & Milling Co., 56 Idaho 403, 55 P.2d 152 (1936).

Liberal Construction.

Statutes governing mechanic’s and laborer’s liens are to be liberally construed so as to effect their objects and to promote justice. Metropolitan Life Ins. Co. v. First Security Bank, 94 Idaho 489, 491 P.2d 1261 (1971).

Priorities.

Where owner of property, after entering into a contract for construction of certain irrigation works thereon, executes a trust deed to property, securing bonds to raise funds wherewith to meet the obligation of the contract, work upon which had already been commenced, mechanic’s lien claimed by such contractor is superior in rank to trust deeds securing bonds, and there is no estoppel from claiming such priority where construction company has done nothing to lead bondholders to believe that their lien should be first. Continental & Com. Trust & Sav. Bank v. Corey Bros. Constr. Co., 208 F. 976 (9th Cir. 1913).

All liens for labor commenced and materials commenced to be furnished prior to recording of mortgages or other liens are prior and superior liens to said mortgages or liens and the liens of all laborers for labor commenced, and materialmen for material commenced to be furnished, subsequent to the recording of said mortgages, are subordinate to said mortgages, when such work is done and material furnished by persons not theretofore connected with the construction of the building. Boise-Payette Lumber Co. v. Halloran-Judge Trust Co., 281 F. 818 (9th Cir. 1922); Pacific States Sav. Loan & Bldg. Co. v. Dubois, 11 Idaho 319, 83 P. 513 (1905).

Mortgage lien, referring to subsequently acquired property, is subject to mechanics’ and materialmen’s liens for construction and acquiring of such property. Pacific Coast Pipe Co. v. Blaine County Irrigation Co., 32 Idaho 705, 187 P. 940 (1920).

If mechanic who worked on section of irrigation system elects to file his lien on entire system, it thereby becomes subject to prior mortgage thereon. Pacific Coast Pipe Co. v. Blaine County Irrigation Co., 32 Idaho 705, 187 P. 940 (1920).

Where lien claimant had no notice of mortgage at time labor and material were furnished, and where such mortgage was unrecorded, lien is entitled to superiority. Poynter v. Fargo, 48 Idaho 271, 281 P. 1111 (1929).

It is well settled that the liens of employee’s debt, judgment or other encumbrances, including attachment, created subsequent to the time when the labor lien attaches, or subsequent to the time to which the labor lien relates, are inferior to the labor liens. White v. Constitution Min. & Milling Co., 56 Idaho 403, 55 P.2d 152 (1936).

A mortgage lien in the hands of an assignee takes precedence over a mechanic’s lien which attached prior to the assignment but subsequent to the execution of the mortgage. Finlayson v. Waller, 64 Idaho 618, 134 P.2d 1069 (1943).

Furnishers of material were entitled to relief on basis of cross-complaints where they alleged that bank holding a mortgage on housing project induced cross-complainants not to file their liens for material furnished and it was alleged that cross-complainants had started delivery of material before execution of mortgage, therefore bank profited thereby and cross-complainants were injured as result of reliance upon false statements by bank. Cooper v. Wesco Builders, Inc., 73 Idaho 383, 253 P.2d 226 (1953).

Where the materials involved in the lien were furnished from Feb. 21, 1959, through July 16, 1959, and the mortgage involved was executed, filed and recorded on March 12, 1959, the lien filed against the property on Sept. 15, 1959, was, at the time of its filing, entitled to priority over the mortgage. Palmer v. Bradford, 86 Idaho 395, 388 P.2d 96 (1963).

Mechanics’ and materialmen’s lien was not “choate” and thus did not have priority over federal farmers home administration mortgage where mechanics’ lien was not the first filed, was uncertain as to amount and was subject to dissolution if not timely filed and enforced. Jones v. Lickley, 453 F. Supp. 44 (D. Idaho 1978).

Using this section and§ 45-512 as the mechanism to set the priority of plaintiff’s mechanics lien as against the mortgage liens of the trusts, the district court’s review of the mortgage lien on the property held by the trusts was proper. Bouten Constr. Co. v. H.F. Magnuson Co., 133 Idaho 756, 992 P.2d 751 (1999). Lien priority depends upon time that labor was commenced or materials were furnished by the claimant. Ultrawall, Inc. v. Washington Mut. Bank, 135 Idaho 832, 25 P.3d 855 (2001).

Financial lender’s mortgages had priority over a landscape developer’s mechanics lien, because the developer’s priority date did not relate back to before the mortgages. Credit Suisse Ag v. Teufel Nursery, Inc., 156 Idaho 189, 321 P.3d 739 (2014).

Time Lien Attaches.

Lien of subcontractor, with respect to priority over mortgage, held to date back to time subcontractor began work and not to time principal contractor entered into contract. Boise-Payette Lumber Co. v. Halloran-Judge Trust Co., 281 F. 818 (9th Cir. 1922).

Lien for materials and supplies furnished in construction, alteration, or repair of buildings or mining structures or improvements relates back to date of commencing to furnish materials therefor. Mine & Smelter Supply Co. v. Idaho Consol. Mines Co., 20 Idaho 300, 118 P. 301 (1911).

The effective date of labor and materialmen’s liens is the date of commencement of the work or improvement or commencing to furnish material. Metropolitan Life Ins. Co. v. First Security Bank, 94 Idaho 489, 491 P.2d 1261 (1971).

The priority date of a lien for materials is the date materials were commenced to be furnished; although the claim of lien is usually filed after all the materials have been furnished, the lien relates back to the date on which materials were first furnished by the claimant. The general rule is that such a lien does not attach unless and until the delivery of construction materials to the site. Beall Pipe & Tank Corp. v. Tumac Intermountain, Inc., 108 Idaho 487, 700 P.2d 109 (Ct. App. 1985).

Idaho Law Review.

Idaho Law Review. — Giving Mechanic’s Lien Rights to Design Professionals in Idaho: The Logical Solution, Josh Sundloff. 49 Idaho L. Rev. 205 (2012).

Amendments.

The 2015 amendment, by ch. 339, added subsection (6).

Acknowledgement.

Claims of mechanics’ and materialmen’s liens filed under this chapter must be acknowledged in accord with§ 55-805 before they are entitled to be recorded, and the “verification” required under this section does not serve the same purpose or function of an “acknowledgement” and cannot be a substitute therefor; accordingly, liens that were not acknowledged, or acknowledged but where the certificate of acknowledgement did not substantially comply with Title 55, Chapter 7 of the Idaho Code, were not enforceable against the bankruptcy trustee. Kloos v. Jacobson, 30 Bankr. 965 (Bankr. D. Idaho 1983).

Laborers and materialmen have the right to assert and obtain a lien which need not include an acknowledgement for it to be properly recorded against the property upon which they have performed labor or for which they have furnished materials. A-J Corp. v. GVR Ltd., 107 Idaho 1101, 695 P.2d 1240 (1985).

Where contractor’s mechanic’s lien stated only that he appeared, was duly sworn, and stated the contents of the lien, the lien did not satisfy the statutory requirements, and it was therefore invalid. Cornerstone Bldrs., Inc. v. McReynolds, 136 Idaho 843, 41 P.3d 271 (Ct. App. 2001).

Amount of Claim.

Every person performing labor or furnishing material for building or structure is entitled to a lien therefor, and amount to be recovered under such lien is always measured by amount found to be due him under his contract. Steltz v. Armory Co., 15 Idaho 551, 99 P. 98 (1908).

Attached Property.

Although the majority of work done was not located on the actual parcel of land for which a mechanic’s lien was sought, the lien could properly be maintained where the work was done upon the easement attached to the parcel. Fairfax v. Ramirez, 133 Idaho 72, 982 P.2d 375 (Ct. App. 1999).

Award of Costs.

When a party successfully forecloses on a lien filed pursuant to this section, that party is entitled to an award of the costs associated with the foreclosure pursuant to§ 45-513. Olsen v. Rowe, 125 Idaho 686, 873 P.2d 1340 (Ct. App. 1994).

Discrepancy in Claim.

Upon the successful entry of a judgment of foreclosure of a lien claimed under this section, an award of attorney fees and costs is mandatory. The amount of the award, however, is still a matter of discretion for the district court. In determining the amount, the district court is free to consider the factors of Idaho R. Civ. P. 54(e)(3) as well as those considerations which are part of a prevailing party analysis under Idaho R. Civ. P. 54(d)(1)(B). Olsen v. Rowe, 125 Idaho 686, 873 P.2d 1340 (Ct. App. 1994). Discrepancy in Claim.

A lien is not invalidated simply because the claimant is not entitled to the amount claimed due in the claim of lien, even when the discrepancy is substantial. And, if an error in the amount of the claim does not invalidate the lien, it would be incongruous to read into subsection (3) a provision invalidating the lien if the claimant does not state that all just credits and offsets had been deducted when calculating the amount of the demand. Parkwest Homes LLC v. Barnson, 149 Idaho 603, 238 P.3d 203 (2010).

Estoppel of Claimant.

Where claimant furnishing labor and materials makes owner of building garnishee in action against contractor, and states in answering garnishee’s answer that it has no lien, and garnishee in reliance thereon pays out money it might have retained to satisfy claimant’s lien, claimant is estopped to assert lien. H. W. Johns-Manville Co. v. Allen, 37 Idaho 153, 215 P. 840 (1923).

Filing Not a Taking.

The filing of a lien under this chapter is not a violation of due process since there is no taking of a significant property interest. Kloos v. Jacobson, 30 Bankr. 965 (Bankr. D. Idaho 1983).

Incorrect Property Description.

Where the real property description in a mechanic’s lien claim notice is “unambiguously erroneous” and describes with exactitude the wrong parcel of real property, substantial compliance with the statute is not achieved and the claim of lien is invalidated. Ross v. Olson, 95 Idaho 915, 523 P.2d 518 (1974).

If the notice of claim of lien has a fatally defective description, there can be no valid lien and no foreclosure proceeding may be based on that notice of claim. Chief Indus., Inc. v. Schwendiman, 99 Idaho 682, 587 P.2d 823 (1978).

A claim of lien is not invalid simply because it describes more property than is properly subject to the lien; so long as there is no fraudulent intent on the part of the lien claimant and no one is injured by the overly broad property description, the land properly subject to the lien is for the court to determine, after hearing all the evidence. Beall Pipe & Tank Corp. v. Tumac Intermountain, Inc., 108 Idaho 487, 700 P.2d 109 (Ct. App. 1985).

Liberal Construction.

Since the purpose of this section is to compensate persons who perform labor upon or furnish materials to be used in the construction, alteration, or repair of a building or structure, this section will be liberally construed but the statutory requirements must be substantially complied with in order to perfect a valid mechanic’s lien. Pierson v. Sewell, 97 Idaho 38, 539 P.2d 590 (1975).

Lien Waivers.

The mechanic’s lien statutes are liberally construed in favor of those to whom the lien is granted. To create a valid lien, the claimant must substantially comply with the statutory requirements. Parkwest Homes LLC v. Barnson, 149 Idaho 603, 238 P.3d 203 (2010). Lien Waivers.

In action involving contract dispute which arose from a remodeling project performed on a residential home by plaintiffs for defendants, lien waiver signed on June 17, 1992, applied only to claims of plaintiffs as of June 17, 1992, since it was found that substantial performance was not completed until June 22, the waiver did not extend to release defendants of any material and labor claims alleged by plaintiffs subsequent to June 17. Baker v. Boren, 129 Idaho 885, 934 P.2d 951 (Ct. App. 1997).

In action involving contract dispute which arose from a remodeling project that plaintiffs performed on residential property for defendants, lien waiver signed by plaintiffs and defendants did not hold defendants harmless from claims of subcontractors where remodeling project differed from other projects performed by plaintiffs for defendant in that in this project plaintiffs did not control or direct the subcontractors as they had in the past and defendants dealt directly with the subcontractors in that they paid several of these contractors directly and directed their work. Baker v. Boren, 129 Idaho 885, 934 P.2d 951 (Ct. App. 1997).

Proof of Claim.

Rendering of account for labor performed and material furnished for work upon a railroad right of way, which account is accepted and approved by railway company, is sufficient proof of the performance of such labor and furnishing of material used in the construction of such improvement, and authorizes the filing of lien therefor. Naylor v. Lewiston & S.E. Elec. Ry., 14 Idaho 789, 96 P. 573 (1908).

Sufficiency of Description.

Description is sufficient where property can be identified by it. Shaw v. Martin, 20 Idaho 168, 117 P. 853 (1911).

Where there was more than one building on lot, claim of lien against building on such lot, but not pointing out which building, is insufficient. Gem State Lbr. Co. v. Cameron, 44 Idaho 595, 258 P. 539 (1927).

Where a materialman’s notice of claim of lien mentioned the materials supplied in general terms, but at no point did it specifically claim a lien against the materials or describe them adequately for identification, no lien could be sustained against the materials. Chief Indus., Inc. v. Schwendiman, 99 Idaho 682, 587 P.2d 823 (1978).

If there appears enough in the description of the property to be charged with the lien to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient. Treasure Valley Plumbing & Heating, Inc. v. Earth Resources Co., 106 Idaho 920, 684 P.2d 322 (Ct. App. 1984).

Property descriptions contained in liens, which were from two different people familiar with the locality who were able to identify the property with reasonable certainty, constituted substantial compliance with this section. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Sufficiency of Notice.

Notice of lien must contain a direct and unequivocal allegation of name of owner; a notice headed “A and B, subcontractors and claimants, v. C, contractor, and D, owner,” is insufficient. White v. Mullins, 3 Idaho 434, 31 P. 801 (1892). Notice of claim of lien for construction of canal which states that a certain company is name of owner and is reputed owner of premises therein described, and caused the said canal to be constructed and excavated, is sufficient. Creer v. Cache Valley Canal Co., 4 Idaho 280, 38 P. 653 (1894).

Mechanic’s lien for construction of canal need not charge or claim lien upon land or right of way. Creer v. Cache Valley Canal Co., 4 Idaho 280, 38 P. 653 (1894).

Statement in lien notice that work was performed and materials furnished upon a certain mining claim, “the property of the defendant,” is not a sufficient compliance with this section. Steel v. Argentine Mining Co., 4 Idaho 505, 42 P. 585 (1895).

Where work is done upon a group of placer mining claims owned by the same person and commonly known under the same name, description of claims under such common name, together with description of place of location, is sufficient in a notice of lien. Phillips v. Salmon River Mining & Dev. Co., 9 Idaho 149, 72 P. 886 (1903).

Notice of lien should contain statement of demand, name of owner or reputed owner, if known, name of person by whom employed, description of property and must be verified. Robertson v. Moore, 10 Idaho 115, 77 P. 218 (1904), overruled on other grounds, Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108 (1918).

Claim of lien containing no recital of name of owner or person by whom laborer was employed, except recital that certain person was owner or reputed owner of premises, and “caused said labor” is insufficient. Riggen v. Perkins, 42 Idaho 391, 246 P. 962 (1926).

Claimant’s failure to name the wife as well as the husband in its claim did not invalidate its lien against community real property. A substantial compliance in good faith meets the statutory requirement. Layrite Prods. Co. v. Lux, 86 Idaho 477, 388 P.2d 105 (1964).

Time for Filing.

Fact that it was not shown that claimant had ceased to perform his duties at time of filing of his claim for lien did not invalidate his claim. Idaho Mining & Milling Co. v. Davis, 123 F. 396 (9th Cir. 1903).

Materialman, who contracts direct with owner and has no privity of interest or contract with contractor, is an original contractor and entitled to time given to such contractors within which to file his lien. Colorado Iron Works v. Riekenberg, 4 Idaho 262, 38 P. 651 (1894).

Time for filing lien cannot be extended by furnishing on a new contract or requesting additional articles and adding them to a completed account and statement of material furnished. Valley Lbr. & Mfg. Co. v. Driessel, 13 Idaho 662, 93 P. 765 (1907).

Materialman or laborer is given an absolute lien upon structure or improvement in which material was used or labor done if he files his claim of lien within time required by law, and payment by owner of the full contract price to contractor prior to date of filing of lien is no defense in action to foreclose such lien. Weeter Lbr. Co. v. Fales, 20 Idaho 255, 118 P. 289 (1911).

Ordinarily furnishing article or performing service, trivial in character, is not sufficient to extend time for claiming lien, or revive expired lien, where article or service are available after substantial completion of contract, and article is not expressly required by terms thereof. H. W. Johns-Manville Co. v. Allen, 37 Idaho 153, 215 P. 840 (1923); Gem State Lbr. Co. v. Witty, 37 Idaho 489, 217 P. 1027 (1923).

Lien of subcontractor must be filed within sixty [now ninety] days from date of completion of building or date of furnishing last item of material. H. W. Johns-Manville Co. v. Allen, 37 Idaho 153, 215 P. 840 (1923); Gem State Lbr. Co. v. Witty, 37 Idaho 489, 217 P. 1027 (1923). Notice of claim of well driller’s lien was held to be timely filed where notice was filed within 90 days of the sealing and capping of a completed well as the work of such sealing and capping was held not to be so minor or trivial as to be insufficient to extend the time within which to file a lien under this section. Craig H. Hisaw, Inc. v. Bishop, 95 Idaho 145, 504 P.2d 818 (1972).

Trivial work done or materials furnished after a construction contract has been substantially completed will not extend the time in which a lien claim can be filed under this section. Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455 (1973).

Where evidence established that construction contract was substantially completed on November 10, 1964 and trial court found inadequate proof that any material or substantial work was performed or supplies furnished after that date which would extend the time for filing a mechanic’s lien, trial court correctly held that lien filed March 11, 1965 was not timely. Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455 (1973).

Since the sixty-day [now ninety-day] period provided by this section for the filing of mechanics’ liens cannot be extended or revised by the furnishing of trivial labor or material once the contract has been completed, a lien claimant must show that any additional materials or labor were actually used in constructing or repairing the structure and that they were necessary to complete construction according to terms of the contract. Pierson v. Sewell, 97 Idaho 38, 539 P.2d 590 (1975).

The time for filing a lien is not extended by performing a service, nor by furnishing an article, that is trivial in character, but remedying a defect in work or materials, at demand of a public inspector, will extend the time to file a lien. Barlow’s, Inc. v. Bannock Cleaning Corp., 103 Idaho 310, 647 P.2d 766 (Ct. App. 1982).

In considering the timeliness of a lien filed by electrical subcontractor, the fact that property owner did not request final work performed at direction of the state electrical inspector was not dispositive, as the issue is not what the property owner requested, but whether the work in question was unnecessary or trivial. Barlow’s, Inc. v. Bannock Cleaning Corp., 103 Idaho 310, 647 P.2d 766 (Ct. App. 1982).

The time for filing a lien starts to run when the claimant performs his last substantial work or makes his last substantial delivery of materials. Barlow’s, Inc. v. Bannock Cleaning Corp., 103 Idaho 310, 647 P.2d 766 (Ct. App. 1982).

In action involving a contract dispute which arose from a remodeling project that plaintiffs performed on residential home for defendants, lien filed August 20, 1992 was valid where there was substantial evidence that work performed between June 18 and 22nd was a substantial continuation of the work on the contract on which work was begun in March of 1992, where evidence showed that the work done between June 17 and June 22 was in furtherance of the existing contract and even though the work was not completed in 90 days as projects the parties had worked on in the past were generally completed, plaintiffs worked consistently from the time they undertook the project through June 22 and it was not a situation in which materials and services were rendered minimally in an attempt to prolong the filing date of the claim of lien. Baker v. Boren, 129 Idaho 885, 934 P.2d 951 (Ct. App. 1997).

Building supplier’s materialman’s lien was timely where it was filed within 90 days of a contractor’s last order; strict materialmen, such as the building supplier, differed from builders who only furnished labor or labor and materials when analyzing substantial completion of contract under this section. Franklin Bldg. Supply Co. v. Sumpter, 139 Idaho 846, 87 P.3d 955 (2004). Where a builder bought materials from a supplier to use on defendants’ building project, the supplier was entitled to a lien on the buildings that the project produced because, inter alia, (1) the supplier did not receive full payment for the materials the supplier furnished for the construction of the project, (2) the lien was timely filed since an insulated storage building qualified as an “improvement” on the land, and (3) the verification of the supplier’s agent was not defective since the agent’s type-written name was sufficient. BMC West Corp. v. Horkley, 144 Idaho 890, 174 P.3d 399 (2007).

Timely Amending of Claim.

Since an original contractor must file a claim of lien no later than ninety days after the completion of the improvement, in the absence of statutory authorization, a defective claim of lien may not be amended after the statutory period for filing the claim has expired and although amendment of the complaint was permissible under the provisions of Idaho R. Civ. P. 15(b), such amendment could not remedy the fatal defect in the claim of lien based on an improvement completed a year previously. Ross v. Olson, 95 Idaho 915, 523 P.2d 518 (1974).

Verification of Claim.

The insertion of the legal description of the property involved by claimant’s attorney, done on the written instructions of claimant, before filing for record but after the verification by claimant, did not violate the verification requirement of the statute where the claim of lien as filed for record complied with the statute. Layrite Prods. Co. v. Lux, 86 Idaho 477, 388 P.2d 105 (1964).

Where the certificate of the president of the laborer materialman company recited that an oath had been administered and stated that the claim was believed to be true and just, and the notary public’s certificate attached thereto contained not merely a corporate acknowledgment but also a statement that the corporation’s president “did subscribe and swear to” the lien claim before the notary, the certificates, taken together, constituted a verification and satisfied the requirement of this section. Treasure Valley Plumbing & Heating, Inc. v. Earth Resources Co., 106 Idaho 920, 684 P.2d 322 (Ct. App. 1984).

Verification by oath of the claimant, that his claim is “true”, rather that “just”, is not a material difference. Parkwest Homes LLC v. Barnson, 149 Idaho 603, 238 P.3d 203 (2010).

Claimant’s agent’s signature before a notary is sufficient verification of the claim, even though it does not meet the exact form of a written oath set forth in§ 51-109(2). Parkwest Homes LLC v. Barnson, 149 Idaho 603, 238 P.3d 203 (2010).

Mechanic’s lien was invalid as a matter of law under this section, because, while a notary public acknowledged the lien, the notary did not certify that the person signing the lien had been sworn before the notary. First Fed. Sav. Bank of Twin Falls v. Riedesel Eng’g, Inc, 154 Idaho 626, 301 P.3d 632 (2012).

Work Must Be Performed.

Cited

During the time an employee held himself in readiness to perform labor, although he may recover therefor, he cannot file a lien within the time required by law where that is the last work performed, and since it is unlienable, it cannot be considered in determining the time within which a lien must be filed. Nelson v. Boise Petro. Corp., 54 Idaho 179, 32 P.2d 782 (1934). Cited Utah Implement-Vehicle Co. v. Bowman, 209 F. 942 (D. Idaho 1913); Continental & Com. Trust & Sav. Bank v. Pacific Coast Pipe Co., 222 F. 781 (9th Cir. 1915); Boise Payette Lbr. Co. v. Weaver, 40 Idaho 516, 234 P. 150 (1925); Boise-Payette Lumber Co. v. Challis Indep. Sch. Dist. No. 1, 46 Idaho 403, 268 P. 26 (1928); Bunt v. Roberts, 76 Idaho 158, 279 P.2d 629 (1955); Willes v. Palmer, 78 Idaho 104, 298 P.2d 972 (1956); Jones v. Lickley, 453 F. Supp. 44 (D. Idaho 1978); First Am. Title Co. v. Design Bldrs., Inc., 18 Bankr. 392 (Bankr. D. Idaho 1981); W.F. Constr. Co. v. Kalik, 103 Idaho 713, 652 P.2d 661 (Ct. App. 1982); Bonner Bldg. Supply, Inc. v. Standard Forest Prods., Inc., 106 Idaho 682, 682 P.2d 635 (Ct. App. 1984); Weaver v. Millard, 120 Idaho 692, 819 P.2d 110 (Ct. App. 1991); In re Hyatt, 2011 Bankr. LEXIS 5055 (Bankr. D. Idaho Dec. 21, 2011).

Idaho Law Review.

Idaho Law Review. — Giving Mechanic’s Lien Rights to Design Professionals in Idaho: The Logical Solution, Josh Sundloff. 49 Idaho L. Rev. 205 (2012).

ALR.

Subjection of municipal property, or alleged municipal property, to mechanics’ liens. 81 A.L.R.6th 363.

Construction.

All work on a single project, for a single owner, and under a single contract is to be treated as a single improvement. Hopkins Northwest Fund, LLC v. Landscapes Unlimited, LLC, 151 Idaho 740, 264 P.3d 379 (2011).

Designation.

Because a materialmen’s lien claim arising from the provision of construction labor and materials for the development of a golf course was a lien upon the land as described in§§ 45-501 and 45-504, the designation requirement of this section did not apply; thus, noncompliance with the section cannot cause a loss of priority. Hopkins Northwest Fund, LLC v. Landscapes Unlimited, LLC, 151 Idaho 740, 264 P.3d 379 (2011).

Filing Blanket Liens.

Where several claims and locations were owned and operated as one mine, as against parties so uniting them, they would be treated as single claim, and hence lien for services was not ineffective for failure to describe particular claim relative to which the services were rendered. Idaho Mining & Milling Co. v. Davis, 123 F. 396 (9th Cir. 1903).

Where company owns three mining claims and lien is filed against all of them without specifying amount due on each, such lien is postponed to other liens but is not void. Phillips v. Salmon River Mining & Dev. Co., 9 Idaho 149, 72 P. 886 (1903).

When a lien claimant fails to specify the amount claimed against each of several buildings, the claim is not thereby rendered void; rather, the lien is postponed to other liens. Treasure Valley Plumbing & Heating, Inc. v. Earth Resources Co., 106 Idaho 920, 684 P.2d 322 (Ct. App. 1984). It would exalt form over substance to hold that a notice of a materialman plumber’s claim must describe with particularity each and every building, or other form of improvement where plumbing work was performed at a mining project, particularly where one party owns all the buildings and improvements at the mine site. Treasure Valley Plumbing & Heating, Inc. v. Earth Resources Co., 106 Idaho 920, 684 P.2d 322 (Ct. App. 1984).

ALR.

§ 45-509. Record of lien claims.

The county recorder must record the claims mentioned in this chapter in a book kept by him for that purpose, which record must be indexed, as deeds and other conveyances are required by law to be indexed, and for which he may receive the same fees as are allowed by law for recording deeds or other instruments.

History.

1893, p. 49, ch. 1, § 8; reen. 1899, p. 147, ch. 1, § 8; reen. R.C. & C.L., § 5117; C.S., § 7348; I.C.A.,§ 44-509.

Cross References.

Fees of recorder,§ 31-3205.

Index of records,§ 31-2404.

Acknowledgement.

Laborers and materialmen have the right to assert and obtain a lien which need not include an acknowledgement for it to be properly recorded against the property upon which they have performed labor or for which they have furnished materials. A-J Corp. v. GVR Ltd., 107 Idaho 1101, 695 P.2d 1240 (1985).

Amendments.

This section was amended by two 2015 acts which appear to be compatible and have been compiled together.

The 2015 amendment, by ch. 278, in subsection (1), near the end of the last sentence, substituted “ten (10) years” for “five (5) years” and deleted “but if such period of five (5) years has expired or will expire before September 1, 1947, the owner of such judgment lien shall have until September 1, 1947, within which to levy execution under such judgment” following “becomes final.”

The 2015 amendment, by ch. 339, added the subsection (1) designation to the existing provisions and added subsection (2).

Effective Dates.

Section 6 of S.L. 2015, ch. 278, provided that the act should take effect on and after July 1, 2015, and shall apply only to judgments issued on and after July 1, 2015, by a court of competent jurisdiction.

Action Timely.

To restrict time within which materialman must perfect its lien to one day less than six months would not be in keeping with the policy of liberal construction embodied in§ 73-102. Accordingly, where materialman filed lien on property and second materialman filed foreclosure action in which first materialman was named as a defendant, and where the last day of the six-month limitation period fell on a Saturday, the time period was carried over to the next business day, pursuant to Idaho R. Civ. P. 6(a), and first materialman’s answer, counterclaim and cross-claim, which were filed on the following Monday, were timely. Cather v. Kelso, 103 Idaho 684, 652 P.2d 188 (1982).

Plaintiff’s motion for leave to amend its complaint, originally filed in relation to a first mechanic’s lien, commenced proceedings within the statutory time period under this section on a second mechanic’s lien: thus, plaintiff was not barred from filing and foreclosing on the second mechanic’s lien. Terra-West, Inc. v. Idaho Mut. Trust, LLC, 150 Idaho 393, 247 P.3d 620 (2010).

Attorney Fees.

Plaintiff was entitled to recover interest from date the balance of debt became due, but not attorney fees, where the plaintiff was not entitled to foreclosure due to failure to make wife a party to the proceeding within six month period. Willes v. Palmer, 78 Idaho 104, 298 P.2d 972 (1956).

Computation of Time Period.

Based upon§ 1-212, which recognizes the power of the Supreme Court to make procedural rules, and Idaho R. Civ. P. 6(a), which establishes the method for computing time periods, it is clear that the legislature and the Supreme Court were attempting to compensate for the closure of the clerk’s office on weekends and holidays and, in this regard, the time limitation contained in this section is analogous to a statute of limitation; when one considers the purpose of the rule and the statute the only interpretation is that Idaho R. Civ. P. 6(a) is applicable to this section. This interpretation permits the court clerk’s office to be closed on Saturdays, Sundays and legal holidays without shortening the time established by the legislature within which the action must be filed; to hold otherwise, for all practical purposes, would result in a shortening of the statutory limitation period. Cather v. Kelso, 103 Idaho 684, 652 P.2d 188 (1982).

Lienor seeking to enforce a mechanic’s lien against property encumbered by a deed of trust must name the trustee of the deed of trust within the statutory period to give effect to the mechanic’s lien against subsequent holders of legal title. Parkwest Homes, LLC v. Barnson, 154 Idaho 678, 302 P.3d 18 (2013).

Effect of Running of Period.

Where consideration of note was removal of lien on real property within one year, action on note is premature before expiration of year, even though lien was removed by operation of law, since it still remained a cloud on the title. Roberts v. Harrill, 42 Idaho 555, 247 P. 451 (1926).

Effect on Lienholders Not Joined.

Mortgagee not made party to foreclosure suit is not bound by the judgment nor is the lien after the expiration of the statutory period of any effect as against mortgagee’s interest. Utah Implement-Vehicle Co. v. Bowman, 209 F. 942 (D. Idaho 1913).

Statute does not prescribe in terms who shall be made parties to suit, but it necessarily means suit must be brought against all whose rights, estates or interests are claimed to be adverse and subordinate; otherwise they are not affected by it, and as to them lien ceases to be effective after expiration of six months’ limitation period. Continental & Com. Trust & Sav. Bank v. Pacific Coast Pipe Co., 222 F. 781 (9th Cir. 1915); D.W. Standrod & Co. v. Utah Implement-Vehicle Co., 223 F. 517 (9th Cir. 1915).

Husband’s half interest in property could not be foreclosed upon by holder of mechanic’s lien though suit was filed within six month period against the husband, where the wife was not made a party within the six month period. Willes v. Palmer, 78 Idaho 104, 298 P.2d 972 (1956).

Lien against wife was lost though suit was filed against husband within six months period where the wife was not made a party to the proceeding until over a year after the claim was filed. Willes v. Palmer, 78 Idaho 104, 298 P.2d 972 (1956).

Although previously held valid as to the beneficiary of the deeds of trust, a mechanic’s lien was not valid as to a trustee’s sale buyer because the builder did not name the trustee of the deeds of trust within the six-month period required in order to give effect to a mechanic’s lien against subsequent holders of legal title. Under§ 45-1502(4), the trustee was the holder of legal title. Parkwest Homes, LLC v. Barnson, 154 Idaho 678, 302 P.3d 18 (2013).

Extension of Time.

Time within which action to enforce lien can be commenced after lien has been filed cannot be extended, as against another encumbrancer, by agreement between lienor and owner. Boise Payette Lbr. Co. v. Weaver, 40 Idaho 516, 234 P. 150 (1925).

Agreement to extend time for foreclosure of mechanic’s lien is not a giving of credit. Boise Payette Lbr. Co. v. Weaver, 40 Idaho 516, 234 P. 150 (1925).

A payment on account made and indorsed on the record of the lien within six months after the claim has been filed does, within the meaning of the statute, extend the duration of a lien covered by said statute for a period of six months after such payment. However, additional or successive payments on account, even though indorsed on the record of the lien, no matter when made, will not extend the duration of the lien beyond the six-month period following the first payment. Palmer v. Bradford, 86 Idaho 395, 388 P.2d 96 (1963).

Lis Pendens.

Perfection of Interest.

It is necessary to file a lis pendens in connection with an action to foreclose a mechanic’s lien in order to give constructive notice of the foreclosure of the lien beyond the six-month period required for commencing such action. Credit Bureau of Lewiston-Clarkston, Inc. v. Idaho First Nat’l Bank, 117 Idaho 29, 784 P.2d 885 (1989). Perfection of Interest.

The commencement of proceedings to enforce a statutory materialmen’s lien within the six-month period of this section is not an element of “perfection” as required to perfect an interest in property under the bankruptcy code, but is merely a time limitation on enforcement which is tolled by 11 U.S.C. § 108(c) of the bankruptcy code. First Am. Title Co. v. Design Bldrs., Inc., 18 Bankr. 392 (Bankr. D. Idaho 1981).

Right as Affected by Limitation.

Time limitation prescribed by this section makes remedy a part of and conditions right created. Unless suit is brought within time limited, lien itself ceases to exist. Continental & Com. Trust & Sav. Bank v. Pacific Coast Pipe Co., 222 F. 781 (9th Cir. 1915).

This section and Idaho R. Civ. P. 3(a) and 4(a) provide the only limitations in foreclosure of mechanics’ liens, which are, first, that proceedings must be commenced for foreclosure of liens within six months after claim of lien is filed, and, second, that summons may be issued at any time within one year after the commencement of action. Shaw v. Martin, 20 Idaho 168, 117 P. 853 (1911).

Lien does not continue unless proceedings are commenced in proper court against person or persons against whose interest lien is asserted, within time limited by statute. Western Loan & Bldg. Co. v. Gem State Lbr. Co., 32 Idaho 497, 185 P. 554 (1919); Boise Payette Lbr. Co. v. Weaver, 40 Idaho 516, 234 P. 150 (1925).

Running of Period of Limitation.

Six months’ period of limitation begins to run immediately upon filing lien, and any disability which arrests running of statute must exist at time right of action accrues. Statute having once attached, period will continue to run and is not suspended by any subsequent disability. Boise Payette Lbr. Co. v. Weaver, 40 Idaho 516, 234 P. 150 (1925).

Contractor’s Lien.

Where owners of railroad right of way authorized contractors to put crew of men to work upon such right of way, and agree to pay such contractors amount actually expended in labor and material, plus twenty per cent, and a certain sum for use of tools, and contractors present bill to railway company which is audited and approved by company, it becomes an account stated, to secure and support which a lien may be filed. Naylor v. Lewiston & S.E. Elec. Ry., 14 Idaho 789, 96 P. 573 (1908).

Contractor is entitled to his lien not only for his own labor but for labor of those under him, and even though his workmen have taken out liens, effect is only to diminish contractor’s lien pro tanto. Riggen v. Perkins, 42 Idaho 391, 246 P. 962 (1926). Corporation cannot have laborer’s lien. Riggen v. Perkins, 42 Idaho 391, 246 P. 962 (1926).

Duty to Defend.

The district court did not err in ruling, at the summary judgment stage, that contractor rather than building owner had the duty to defend against the claims of the subcontractors. Although this section did not explicitly place the duty upon the contractor, that intent was implicit in the statutory scheme. Bouten Constr. Co. v. M & L Land Co., 125 Idaho 957, 877 P.2d 928 (Ct. App. 1994).

Lien Right for Material Exists.

A lumber company which furnished materials to be used in improving owners’ dwelling could enforce lien against the building without first seeking payment for the materials from the original contractor. Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

Materialman as Original Contractor.

Materialman who contracts directly with owner and has no privity of interest and no contract with contractor for construction is an original contractor. Colorado Iron Works v. Riekenberg, 4 Idaho 262, 38 P. 651 (1894).

ALR.

Release or waiver of mechanic’s lien by general contractor as affecting rights of subcontractor or materialman. 75 A.L.R.3d 505.

Contractors and Subcontractors.

Materialman who contracts directly with owner and his no privity of interest and no contract with contractor for construction is an original contractor. Colorado Iron Works v. Riekenberg, 4 Idaho 262, 38 P. 651 (1894).

Corporation furnishing labor and material in installing plumbing and heating, contracting directly with original contractor for building, is entitled to lien as subcontractor only and not as materialman. Riggen v. Perkins, 42 Idaho 391, 246 P. 962 (1926). Corporation is not entitled to labor lien. Riggen v. Perkins, 42 Idaho 391, 246 P. 962 (1926).

Deficiency Judgment.

A subcontractor may obtain a deficiency judgment against the landowners. Weber v. Eastern Idaho Packing Corp., 94 Idaho 694, 496 P.2d 693 (1972).

In an action to foreclose a mechanic’s lien brought by a subcontractor who furnished labor and materials in connection with the installation of a heating system in a dwelling, the subcontractor was not entitled to a personal judgment against the homeowner for any deficiency which might remain after the foreclosure sale, where the homeowner was not in a direct contractual relationship with the subcontractor. Pierson v. Sewell, 97 Idaho 38, 539 P.2d 590 (1975).

Determination of Priorities.

This section applies to cases in which there are no intervening mortgage liens; where mortgage liens are involved, time or date when building was commenced or laborer began to work, or materialman commenced to furnish material, must be taken into consideration in determining priority of such liens over mortgage liens. Pacific States Sav. Loan & Bldg. Co. v. Dubois, 11 Idaho 319, 83 P. 513 (1905).

Using this section and§ 45-506 as the mechanism to set the priority of plaintiff’s mechanics lien as against the mortgage liens of the trusts, the district court’s review of the mortgage lien on the property held by the trusts was proper. Bouten Constr. Co. v. H.F. Magnuson Co., 133 Idaho 756, 992 P.2d 751 (1999).

Nature of Judgment.

Judgment and decree foreclosing mechanic’s or laborer’s lien and directing sale of property on which lien is claimed is not a money judgment, providing for supersedeas bond in double amount of judgment. Naylor & Norlin v. Lewiston & S.E. Elec. Ry. Co., 14 Idaho 722, 95 P. 827 (1908).

Deficiency judgment is in effect provided for in this section by provision for execution for balance that may be due. Blake v. Crystalline Lime Co., 37 Idaho 637, 221 P. 1100 (1923).

Priority of Assignee.

In lien foreclosure where all parties claiming same were joined in same action and, after judgment, two claimants assigned their judgments to another claimant and the heirs of deceased owner assigned their interest to the same assignee, the legal title to the property was then merged in assignee unless such merger would cause injustice to a junior lien. Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945).

Subcontractor’s Lien.

Cited

The uncollected balance of a subcontractor’s lien which does not duplicate part of the contractor’s lien is treated as a personal judgment, and, where the requirements for personal jurisdiction are met, the subcontractor’s lien is an effective personal judgment against the landowners. Weber v. Eastern Idaho Packing Corp., 94 Idaho 694, 496 P.2d 693 (1972). Cited Ultrawall, Inc. v. Washington Mut. Bank, 135 Idaho 832, 25 P.3d 855 (2001).

Application of Idaho R. Civ. P 54.

To the extent that Idaho R. Civ. P 54, which requires the finding of a prevailing party within the discretion of the district court, is inconsistent with this section, which provides for a mandatory award of attorney fees as part of the enforcement of a lien, the rule has no application and does not modify the statute. Olsen v. Rowe, 125 Idaho 686, 873 P.2d 1340 (Ct. App. 1994).

Attorney’s Fees.

Attorney’s fees are allowed in the foreclosure of mechanics’ and laborers’ liens. Robertson v. Moore, 10 Idaho 115, 77 P. 218 (1904), overruled on other grounds, Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108 (1918).

Attorney’s fees are not a part of the cost and, therefore, are recoverable, even though the amount of judgment is less than $100. Shaw v. Johnston, 17 Idaho 676, 107 P. 399 (1910).

Attorney’s fees are an incident of the judgment and defendant is liable therefor. Smith v. Faris-Kesl Constr. Co., 27 Idaho 407, 150 P. 25 (1915).

The omission of a part of the law adopted from California, to provide for attorney’s fees for work in the supreme court, is sufficient to show that it was the legislative intent not to adopt that part of the California law. Hendrix v. Gold Ridge Mines, Inc., 54 Idaho 326, 54 P.2d 254 (1936).

Where plaintiff filed suit to recover wages before wages were due but they were due at time of appeal the judgment in favor of plaintiff would not be reversed but that part of the judgment allowing attorney fees would be stricken. Schlueter v. Nelson, 74 Idaho 396, 263 P.2d 386 (1953).

Plaintiff was entitled to attorney fee in suit to foreclose mechanic’s lien although he did not establish full amount of claim. Guyman v. Anderson (1954), 75 Idaho 294, 271 P.2d 1020. This section only authorizes district court to allow attorney fees for foreclosing liens. Ivie v. Peck, 94 Idaho 625, 495 P.2d 1110 (1972).

This statute does not permit recovery of attorney fees on appeal by mechanic’s lien claimants. Weber v. Eastern Idaho Packing Corp., 94 Idaho 694, 496 P.2d 693 (1972), overruled on other grounds, Pierson v. Sewell, 97 Idaho 38, 539 P.2d 590 (1975).

In an action to foreclose a mechanic’s lien brought by a subcontractor who furnished labor and materials in connection with the installation of a heating system in a dwelling, subcontractor’s attorney was not entitled to be awarded a fee for the time spent in preparing the mechanic’s lien. Pierson v. Sewell, 97 Idaho 38, 539 P.2d 590 (1975).

Where a contractor stipulated to release its materialmen’s lien upon condition that a sufficient sum of money would be held in a special account to pay any balance found to be due the contractor, the stipulation did not displace the contractor’s right to an attorney fee on his successful cross-claim against the property owners to foreclose his materialmen’s lien, since the cross-claim, seeking to recover from the special account fund, was the functional equivalent of an action to foreclose the lien. J.E.T. Dev. v. Dorsey Constr. Co., 102 Idaho 863, 642 P.2d 954 (Ct. App. 1982).

The fact that the amount determined to be due a contractor under a construction contract was less than the amount claimed by the contractor in its notice of a materialmen’s lien did not bar recovery by the contractor of a statutory attorney fee under this section because a reasonable attorney fee was an incident of foreclosure of the lien. J.E.T. Dev. v. Dorsey Constr. Co., 102 Idaho 863, 642 P.2d 954 (Ct. App. 1982).

Both a general contractor and the landowner are responsible for the attorney fees incurred in legal proceedings to collect the claim of a materialmen’s lien. Acoustic Specialties, Inc. v. Wright, 103 Idaho 595, 651 P.2d 529 (1982).

Where the owners of the property retained the money due the principal contractor and, apparently without cause or right, contested the materialmen’s garnishment as well as foreclosure proceedings on every point, and litigated the case to the end, thereby delaying the materialmen in recovering on the partial summary judgments they were entitled to, and putting them to unnecessary legal expense, it was proper to allow the materialmen attorney fees payable out of the proceeds of the foreclosure sale of the owners’ real property. Acoustic Specialties, Inc. v. Wright, 103 Idaho 595, 651 P.2d 529 (1982).

This section has been interpreted by the Idaho Supreme Court to provide no basis for a successful lien claimant to receive attorney fees on appeal. However, these decisions do not insulate lien foreclosure cases from discretionary awards of attorney fees on appeal under§ 12-121. Therefore, where the appellate court has left with the abiding belief that an appeal was brought without foundation, it appropriately awarded attorney fees on appeal to the appellee. W.F. Constr. Co. v. Kalik, 103 Idaho 713, 652 P.2d 661 (Ct. App. 1982).

This section does not authorize an award of attorney fees on appeal; an award may be made under§ 12-121, but only if the appeal was brought or defended frivolously, unreasonably or without foundation. Beall Pipe & Tank Corp. v. Tumac Intermountain, Inc., 108 Idaho 487, 700 P.2d 109 (Ct. App. 1985).

This section has been construed to exclude appeals. Eimco Div. v. United Pac. Ins. Co., 109 Idaho 762, 710 P.2d 672 (Ct. App. 1985).

Attorney fees are not recoverable on appeal under this section; however an award could be made under§ 12-121, but only if the court found that defendant’s appeal was brought or pursued “frivolously, unreasonably or without foundation.” Treasure Valley Plumbing & Heating, Inc. v. Earth Resources Co., 115 Idaho 373, 766 P.2d 1254 (Ct. App. 1988). The trial court is free to consider all factors it deems as having a bearing on attorney fees in its determination of what is reasonable. Barber v. Honorof, 116 Idaho 767, 780 P.2d 89 (1989).

When a party successfully forecloses on a lien filed pursuant to§ 45-507, that party is entitled to an award of the costs associated with the foreclosure pursuant to this section. Olsen v. Rowe, 125 Idaho 686, 873 P.2d 1340 (Ct. App. 1994).

Upon the successful entry of a judgment of foreclosure of a lien claimed under§ 45-507, an award of attorney fees and costs is mandatory. The amount of the award, however, is still a matter of discretion for the district court. In determining the amount, the district court is free to consider the factors of Idaho R. Civ. P 54 as well as those considerations which are part of a prevailing party analysis under Idaho R. Civ. P 54. Olsen v. Rowe, 125 Idaho 686, 873 P.2d 1340 (Ct. App. 1994).

Where plaintiffs who claimed liens were not successful in their claims, and where neither out-of-state bond statutes nor the theory of unjust enrichment provided relief to any of them, awards of attorney fees to the plaintiffs were not appropriate. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Since the costs of filing and recording, as well as the attorney fees, are incidental to the foreclosure of a lien pursuant to this section, the award of attorney fees as part of the enforcement of the lien was a mandatory award. Elec. Wholesale Supply Co. v. Nielson, 136 Idaho 814, 41 P.3d 242 (2001).

Although attorney fees on appeal by materialman’s lien claimants are not available pursuant to this section, an award could be made under§ 12-121 if the appeal was brought frivolously, unreasonably or without foundation. Franklin Bldg. Supply Co. v. Sumpter, 139 Idaho 846, 87 P.3d 955 (2004).

Where a builder bought materials from a supplier to use on defendants’ building project and the supplier was entitled to a lien on the buildings that the project produced, the supplier was entitled to costs and fees on appeal as the prevailing party. BMC West Corp. v. Horkley, 144 Idaho 890, 174 P.3d 399 (2007).

This section does not allow the award of attorney fees on appeal by materialman’s lien claimants. Stonebrook Constr., LLC v. Chase Home Fin., LLC, 152 Idaho 927, 277 P.3d 374 (2012).

Materialmen foreclosing a lien could recover from subsequent buyers of the property the attorney fees reasonably incurred in responding to a lender’s attempts to prevent a foreclosure sale. It was immaterial whether the buyers had any responsibility for those costs being incurred. Magleby v. Garn, 154 Idaho 194, 296 P.3d 400 (2013).

Materialmen foreclosing a lien could recover attorney fees on appeal from the builders under§ 12-120 where the issue on appeal was the amount of attorney fees awarded by the trial court, rather than the entitlement to an award. Attorney fees on appeal could not be awarded under§ 12-121, however, because this section applied instead. Magleby v. Garn, 154 Idaho 194, 296 P.3d 400 (2013).

After prevailing in a mechanic’s lien foreclosure action, a trustee’s sale buyer could not recover attorney fees on appeal from the builder under§§ 12-120(3) and 12-121 because the more specific statute governing attorney fees in an action to foreclose a mechanic’s lien, this section, does not provide for fees on appeal. Parkwest Homes, LLC v. Barnson, 154 Idaho 678, 302 P.3d 18 (2013). District court did not err in apportioning a landscape developer’s costs and attorney’s fees by finding that the developer only partially prevailed in litigation to determine priority between the developer’s mechanics lien and a financial lender’s mortgages. Credit Suisse Ag v. Teufel Nursery, Inc., 156 Idaho 189, 321 P.3d 739 (2014).

Denial of an award of attorney’s fees for failure to plead a specific amount, as required by Idaho Rule of Civil Procedure, is not inconsistent with the mandatory award language in this section. Regdab, Inc. v. Graybill, 165 Idaho 293, 444 P.3d 323 (2019).

Because defendants relied on plaintiff’s complaint and its failure to contain a specific amount for attorney fees in making the decision not to defend the suit and actually tendered payment in full before the default judgment was entered, defendants would have been prejudiced if plaintiff was permitted to amend its complaint, adding a specific amount of attorney fees on default. Regdab, Inc. v. Graybill, 165 Idaho 293, 444 P.3d 323 (2019).

Constitutionality.

Provision of this section which authorizes recovery of attorney’s fee is not class legislation and does not violateIdaho Const., Art. I, § 18, providing that justice shall be administered without sale. Thompson v. Wise Boy Mining & Milling Co., 9 Idaho 363, 74 P. 958 (1903).

This section does not violate the guarantee of equal protection of the law by allowing attorney fees to the lienor but not allowing them to the property owner successfully resisting lien foreclosure nor by singling out and penalizing a single class of debtors. Harrington v. McCarthy, 91 Idaho 307, 420 P.2d 790 (1966).

A contractor was entitled to reasonable attorney fees where it was held that he could obtain a lien on property for the entire amount due, including the amount owing for work done on an easement road attached to the property. Fairfax v. Ramirez, 133 Idaho 72, 982 P.2d 375 (Ct. App. 1999).

Legislative Intent.

In light of the clear legislative intent to restrict the recovery of attorney fees in a lien foreclosure to those incurred in district court, the appellate court declined to award the prevailing party attorney fees for his prosecution of a cross-appeal. Fairfax v. Ramirez, 133 Idaho 72, 982 P.2d 375 (Ct. App. 1999).

Parties.

Though parties are joined under this section, if actions are individual, parties will be recognized as separate in their respective rights. Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 P. 789 (1908); Shaw v. Martin, 20 Idaho 168, 117 P. 853 (1911); Hill v. Twin Falls Salmon River Land & Water Co., 22 Idaho 274, 125 P. 204.

In an action to foreclose a mechanic’s lien, the court properly joined all parties claiming liens against the same property. Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945).

In lien foreclosure where all parties claiming same were joined in same action and, after judgment, two claimants assigned their judgments to another claimant and the heirs of deceased owner assigned their interest to the same assignee, the legal title to the property was then merged in assignee unless such merger would cause injustice to a junior lien. Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945).

Cited Pacific States Sav., Loan & Bldg. Co. v. Dubois, 11 Idaho 319, 83 P. 513 (1905); Boise-Payette Lumber Co. v. Challis Indep. Sch. Dist. No. 1, 46 Idaho 403, 268 P. 26 (1928); Scogings v. Andreason, 91 Idaho 176, 418 P.2d 273 (1966); Darrar v. Chicago, M., St. P. & Pac. R.R., 94 Idaho 772, 497 P.2d 1399 (1972); Hafer v. Horn, 95 Idaho 621, 515 P.2d 1013 (1973); Del Milam & Sons v. Bailey, 107 Idaho 587, 691 P.2d 1202 (1984); LaGrand Steel Prods. Co. v. A.S.C. Constructors, Inc., 108 Idaho 817, 702 P.2d 855 (Ct. App. 1985); Baker v. Boren, 129 Idaho 885, 934 P.2d 951 (Ct. App. 1997); L & W Supply Corp. v. Chartrand Family Trust, 136 Idaho 738, 40 P.3d 96 (2002); Franklin Bldg. Supply Co. v. Sumpter, 144 Idaho 496, 163 P.3d 1208 (Ct. App. 2003); Perception Constr. Mgmt. v. Bell, 151 Idaho 250, 254 P.3d 1246 (2011); Intermountain Real Props., LLC v. Draw, LLC, 155 Idaho 313, 311 P.3d 734 (2013).

Cited

Idaho Law Review.

Idaho Law Review. — Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

ALR.

§ 45-514. Exemption of materials from execution.

Whenever materials shall have been furnished for use in the construction, alteration or repair of any buildings, or other improvement, such materials shall not be subject to attachment, execution or other legal process, to enforce any debt due by the purchaser of such materials, except a debt due for the purchase money thereof, so long as, in good faith, the same are being applied to the construction, alteration or repair of such building, mining claim or other improvement.

History.

1893, p. 49, ch. 1, § 13; reen. 1899, p. 147, ch. 1, § 13; reen. R.C. & C.L., § 5122; C.S., § 7353; I.C.A.,§ 44-514.

No Attempt to Collect.

A lumber company which furnished materials to be used in improving owners’ dwelling could enforce lien against the building without first seeking payment for the materials from the original contractor. Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

ALR.

§ 45-515. Action to recover debt.

Nothing contained in this chapter shall be construed to impair or affect the right of any person to whom any debt may be due for work done, equipment, materials or fixtures rented or leased or materials furnished, to maintain a personal action to recover such debt against the person liable therefor.

History.

1893, p. 49, ch. 1, § 14; reen. 1899, p. 147, ch. 1, § 14; reen. R.C. & C.L., § 5123; C.S., § 7354; I.C.A.,§ 44-515; am. 2001, ch. 152, § 7, p. 550.

Attorney’s Fees.

This section allows the materialman lien claimant to collect the debt both through foreclosure of the lien and a personal action against the contractor. Accordingly, the fact that the subcontractor materialmen had not yet reduced to judgment their claims for attorney fees against the principal contractor did not prevent their obtaining a judgment for those fees against the owners of the real property. Acoustic Specialties, Inc. v. Wright, 103 Idaho 595, 651 P.2d 529 (1982).

Contract Right Not Invalidated.

Although plaintiff did not succeed in preserving a lien on the defendants’ interest in the real property and was not entitled to foreclosure, this did not invalidate his personal judgment against defendants for moneys due on the underlying contract, less setoffs. Ross v. Olson, 95 Idaho 915, 523 P.2d 518 (1974).

Enforcement of Materialman’s Lien.

A lumber company furnishing materials to improve owners’ dwelling can enforce a materialman’s lien against the dwelling, without first seeking payment from the original contractor. Idaho Lbr. & Hdw. Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940).

Nature of Judgment.

Judgment foreclosing mechanic’s lien was not a money judgment. Naylor & Norlin v. Lewiston & S.E. Elec. Ry. Co., 14 Idaho 722, 95 P. 827 (1908).

Right to Other Remedy.

This section contemplates that when one erroneously asserts right to mechanic’s lien such action shall not be construed to impair or affect his right to recover in indebitatus assumpsit for work done or material furnished. Lus v. Pecararo, 41 Idaho 425, 238 P. 1021 (1925). This right is recognized in Boise Lumber Co. v. Independent School Dist., 36 Idaho 778, 214 P. 143 (1923), where it was held that, by reason of valid tender before filing of lien, right to lien was extinguished, but plaintiff was allowed right to recover material furnished.

ALR.

§ 45-516. Rules of practice and appeals.

Except as otherwise provided in this chapter, the provisions of this code relating to civil actions, new trials and appeals are applicable to, and constitute the rules of practice in, the proceedings mentioned in this chapter: provided, that the district courts shall have jurisdiction of all actions brought under this chapter.

History.

1893, p. 49, ch. 1, § 15; reen. 1899, p. 147, ch. 1, § 15; reen. R.C. & C.L., § 5124; C.S., § 7355; I.C.A.,§ 44-516.

Cross References.

Appeals,§ 13-201 et seq.

Attorney Fees.

Plaintiff was entitled to recover interest from date the balance of debt became due, but not attorney fees, where the plaintiff was not entitled to foreclosure due to failure to make wife a party to the proceeding within six month period. Willes v. Palmer, 78 Idaho 104, 298 P.2d 972 (1956).

Lis Pendens.

It is necessary to file a lis pendens in connection with an action to foreclose a mechanic’s lien in order to give constructive notice of the foreclosure of the lien beyond the six-month period required for commencing such action. Credit Bureau of Lewiston-Clarkston, Inc. v. Idaho First Nat’l Bank, 117 Idaho 29, 784 P.2d 885 (1989).

Nature of Action.

Action to foreclose mechanic’s lien is equitable in its nature and court is not bound to submit any issue of fact to the jury; if it does so, it may disregard verdict and findings and may enter a decree according to its own view of evidence in the case. Idaho & Oregon Land Imp. Co. v. Bradbury, 132 U.S. 509, 10 S. Ct. 177, 33 L. Ed. 433 (1889); Jensen v. Bumgarner, 25 Idaho 355, 137 P. 529 (1913).

Sufficiency of Complaint.

Complaint for foreclosure of laborer’s lien that sufficiently describes property, fixes time and manner of labor, amount due, and alleges that lien was filed within statutory time, together with the necessary requirements in ordinary suits in equity, is sufficient. Robertson v. Moore, 10 Idaho 115, 77 P. 218 (1904), overruled on other grounds, Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108 (1918).

Amendments.

The 2015 amendment, by ch. 244, substituted “worker’s” for “workmen’s” in the section heading and in the section text and substituted “sections 72-301 through 72-304, Idaho Code” for “Idaho Code, Section 72-801 and Section 72-1203”.

Insurance.

While the legislature has provided protection for the recovery of worker’s compensation security in the mechanic’s lien laws, it has not so provided for any other form of insurance. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Open Account Defense.

The open account defense applies to those claimants attempting to recover under the state’s mechanic’s lien statutes, even those parties who assert a lien in the worker’s compensation context. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Purpose.

A lien release bond is merely meant to act as substitute security for real property and does not otherwise affect the rights of interested parties. Am. Bank v. Wadsworth Golf Constr. Co. of the Southwest, 155 Idaho 186, 307 P.3d 1212 (2013).

(Its Attorney in Fact)

State of Idaho     )

) ss.

County of ........     )

On ..............., ...., before me, the undersigned, a notary public of this county and state, personally appeared ....................... who acknowledged that he executed the foregoing instrument as principal for the purposes therein mentioned and also personally appeared ....................... known (or satisfactorily proved) to me to be the attorney in fact of the corporation that executed the foregoing instrument and known to me to be the person who executed that instrument on behalf of the corporation therein named, and he acknowledged to me that that corporation executed the foregoing instrument. ......................................

(Notary Public in and for the

County and State)

History.

I.C.,§ 45-519, as added by 1993, ch. 378, § 4, p. 1386; am. 2002, ch. 32, § 18, p. 46.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Limitation.

The phrase in this form “such amount as a court of competent jurisdiction may adjudge to have been secured by his lien” limits a lienholder to the amount that he could have recovered against the real property in a foreclosure action. It does allow recovery when there were no surplus funds after a foreclosure sale. Am. Bank v. Wadsworth Golf Constr. Co. of the Southwest, 155 Idaho 186, 307 P.3d 1212 (2013).

Effective Dates.

Section 2 of S.L. 2004, ch. 225 declared an emergency. Approved March 23, 2004.

Cross References.

Department of labor,§ 72-1333.

Compiler’s Notes.

This section was formerly compiled as§ 45-609.

Former§ 45-601 was amended and redesignated as§ 45-602 by § 2 of S.L. 1989, ch. 280.

The title to S.L. 1967, ch. 436, stated that it was an act to amend chapter 6 of title 44 and the amending clauses of §§ 1 to 6 thereof stated that title 44 was amended by adding certain designated sections and designating such sections as§§ 45-609 to 45-615.

The amending clause of this section read: “Section 1. That chapter 6 of title 44, Idaho Code, be, and the same is hereby amended by adding a new section thereto, following section 45-608, to be known and designated as section 45-609, and to read as follows.”

Constitutionality.

Defendant’s contention that this chapter violates the contract clause of the United States Constitution was without merit; the constitutional impairment of contract clause protects only those contractual obligations already in existence at the time the disputed law is enacted, and Idaho’s wage claim act was first passed in 1893, well before the obligation in question. State ex rel. Dept. of Labor & Indus. Servs. v. Hill, 118 Idaho 278, 796 P.2d 155 (Ct. App. 1990).

Employee.

By using the term “employee,” the legislature indicated that the provisions of this chapter should apply only to employees, not independent contractors. Ostrander v. Farm Bureau Mut. Ins. Co., 123 Idaho 650, 851 P.2d 946 (1993).

When determining whether there exists an employee/employer relationship for the purpose of Idaho’s wage claim statute, it is not the labels applied by the parties which control, but rather the actual indicia of such a relationship; the general test of an employee/employer relationship is the right to control work, and if the employer retains the right to control and to direct the activities of the employee in the details of work performed, and to determine the hours to be spent and the times to start and stop the work, the person performing work will be deemed an employee. State ex rel. Dep’t of Labor & Indus. Servs. v. Hill, 118 Idaho 278, 796 P.2d 155 (Ct. App. 1990).

Paid Time Off.

Paid time off constitutes wages which must be paid within ten days of termination of employment. Warnecke v. Nitrocision, LLC, 2012 U.S. Dist. LEXIS 170656 (D. Idaho Nov. 29, 2012).

Purpose.

The 1967 amendment to Idaho’s claim for wages statutes was not intended to change the rule enunciated by previous cases which stopped the running of penalties upon a tender of the full amount of wages due. Gano v. Air Idaho, Inc., 99 Idaho 720, 587 P.2d 1255 (1978).

The purpose of the wage and hour law is to ensure that employees receive compensation due to them upon termination of their employment. De Witt v. Medley, 117 Idaho 744, 791 P.2d 1323 (Ct. App. 1990).

Wages.

Where an employer was preparing to sell a division of his company within 60 days and promised his employee a bonus of 60 days’ additional salary if the employee would remain with the company until the division was sold, such 60-day “pay bonus” was a wage, as defined in this section; thus, employer’s refusal to pay such bonus subjected the employer to treble damages under former law. Neal v. Idaho Forest Indus., Inc., 107 Idaho 681, 691 P.2d 1296 (Ct. App. 1984).

In action for breach of employment contract, it was error for the trial judge to treat the cash value of the life insurance policy as wages, where the proceeds of the policy were to be paid to the employee at retirement or to his heirs upon his death. The policy was a fixed benefit of employment status, and as such, it was not compensation earned in increments as services were performed, unlike wages, and also unlike compensation paid in direct consideration of services rendered, in amounts over and above an employee’s regular paychecks. Whitlock v. Haney Seed Co., 114 Idaho 628, 759 P.2d 919 (Ct. App. 1988). Funds held in a deferral account were “wages” under this section, where the funds were compensation earned in increments as services were performed and the funds were fully earned by the employee when placed in the account, and the fact that there was or could be a balance in the account when the employee terminated his employment did not mean the account was intended as a retirement or similar post-employment benefit. Bilow v. Preco, Inc., 132 Idaho 23, 966 P.2d 23 (1998).

District court properly affirmed an arbitration panel’s refusal to award treble damages and attorney fees on an employee’s employment agreement claim because the panel did not rule that the amount owed on the employment agreement claim constituted monies owed for unpaid wages. The arbitrators awarded the employee damages under the heading of “Wage Claim,” but the mere use of that shorthand term did not suggest the panel intended the award to represent wages; instead, those damages were part of a liquidated damages provision as articulated in the employment agreement. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

In a wrongful discharge case in which an employee claimed he was fired for petitioning to exercise stock options granted to him by the employer, the United States court of appeals for the Ninth Circuit requested the Idaho supreme court to accept certification of a question asking whether stock options can be wages under this section. Paolini v. Albertson’s Inc., 418 F.3d 1023 (9th Cir. 2005).

Stock options do not fall under the definition of wages because that form of compensation is not payable in cash, with a check, or by deposit into an employee’s bank account. Paolini v. Albertson’s, Inc., 143 Idaho 547, 149 P.3d 822 (2006).

District court erred in ruling that the amount owed under a noncompetition/nondisclosure agreement was not wages under subsection (7), where the 12 months’ pay provided for in the agreement was not conditioned on compliance with the noncompetition conditions, but was severance pay intended to compensate for past service and to secure economic well-being. Huber v. Lightforce USA, Inc., 159 Idaho 833, 367 P.3d 228 (2016).

Cross References.

Employers to make and record statements for protection of laborers,§§ 44-501 and 44-502.

Compiler’s Notes.

This section was formerly compiled as§ 45-601.

Former§ 45-602 was amended and redesignated as§ 45-603 by § 3 of S.L. 1989, ch. 280.

Constitutionality.

Defendant’s contention that this chapter violates the contract clause of the United States Constitution was without merit; the constitutional impairment of contract clause protects only those contractual obligations already in existence at the time the disputed law is enacted, and Idaho’s wage claim act was first passed in 1893, well before the obligation in question. State ex rel. Dept. of Labor & Indus. Servs. v. Hill, 118 Idaho 278, 796 P.2d 155 (Ct. App. 1990).

Purpose.

Cited

The purpose of this chapter is to insure that employees receive compensation due and owing to them upon termination of their employment. Hales v. King, 114 Idaho 916, 762 P.2d 829 (Ct. App. 1988). Cited St. John v. O’Reilly, 80 Idaho 429, 333 P.2d 467 (1958); Schoonover v. Bonner County, 113 Idaho 916, 750 P.2d 95 (1988).

Compiler’s Notes.

This section was formerly compiled as§ 45-602.

Former§ 45-603 was redesignated as§ 45-604 by § 4 of S.L. 1989, ch. 280.

Compiler’s Notes.

This section was formerly compiled as§ 45-603.

Former§ 45-604 was redesignated as§ 45-605 by § 5 of S.L. 1989, ch. 280.

Compiler’s Notes.

This section was formerly compiled as§ 45-604.

Former§ 45-605 was redesignated as§ 45-615 by § 16 of S.L. 1989, ch. 280 and was subsequently repealed by S.L. 1999, ch. 51, § 16, effective July 1, 1999.

Prior Laws.

Former§ 45-606, which comprised 1911, ch. 170, § 1, p. 565; reen. C.L., § 5148b; C.S., § 7381; I.C.A.,§ 44-606; am. 1982, ch. 336, § 1, p. 845 was repealed by S.L. 1989, ch. 280, § 6.

Contract Required.

Where the court has determined that no enforceable employment contract ever existed, there is no contractual basis upon which a terminated employee can establish that a bonus was due from his former employer upon separation of employment. Gray v. Tri-Way Constr. Servs., 147 Idaho 378, 210 P.3d 63 (2009).

Earned Paid Time Off.

Where a nurse was constructively discharged from her position at a clinic, but retained a limited part-time assignment at a related hospital, the hospital was entitled to summary judgment on the nurse’s wage claim under subsection (1) for wages for earned paid time off: the nurse was not entitled to payment for her earned paid time off following the constructive discharge, because the wages were only due and owing when the nurse was no longer working for the hospital on any basis. Hurst v. IHC Health Servs., 817 F. Supp. 2d 1202 (D. Idaho 2011).

Treble Damages.

The district court’s award of treble damages to the plaintiffs was affirmed because the employer failed to tender wages that were due and owing within 48 hours of the plaintiffs’ written demand for wages. Polk v. Robert D. Larrabee Family Home Ctr., 135 Idaho 303, 17 P.3d 247 (2000).

Decisions Under Prior Law

Application.

Former similar law applied to employer of labor and not owner of property on which work was done. Fenn. v. Latour Creek R. Co., 29 Idaho 521, 160 P. 941 (1916).

Former similar law did not create lien in favor of boardinghouse keeper, or person furnishing feed to horses, or for horse hire to contractor, on property of railroad. Fenn. v. Latour Creek R. Co., 29 Idaho 521, 160 P. 941 (1916).

In order to come within terms of former similar law, complainant must have been discharged. Marrs v. Oregon Short Line R.R., 33 Idaho 785, 198 P. 468 (1920); Goodell v. Pope-Shenon Mining Co., 36 Idaho 427, 212 P. 342 (1922).

Because of the exclusive nature of former section, it may be utilized in situations where an employee voluntarily terminates his or her employment, even though former similar section was applicable only in situations where an employee is discharged. Hales v. King, 114 Idaho 916, 762 P.2d 829 (Ct. App. 1988).

Attorney Fees.

Former section set forth two separate situations where recovery is allowed. Under the first alternative, wages or salary are due an employee at the time the employer discharges or lays off that employee. In the second alternative, the employee need not be discharged or laid off by their employer. The employee simply has to make a demand for wages or salary due and owing to him under his contract of employment. Kalac v. Canyon County, 119 Idaho 650, 809 P.2d 511 (Ct. App. 1990). Attorney Fees.

A demand in writing for wages due as required by former section was made as shown by the record in action for wages with the notification that if payment was not received within five days and suit was thereafter brought, attorney fees and penalty would be sought as provided in this section and upon action being thus brought, attorneys fees in the amount of $700 were stipulated and agreed upon. O’Harrow v. Salmon River Uranium Dev., Inc., 84 Idaho 427, 373 P.2d 336 (1962).

Constitutionality.

Former similar law was legitimate exercise of police power of state, and was not an infringement upon the liberty of contract in respect to labor, and did not deprive employer or employee of the liberty or right to enter into any contract, nor take property from employer without due process of law, nor single out any particular class of debtors or individuals, and was not unconstitutional as being in contravention of Art. I, § 10 of the Constitution of the United States, or of § 1 of the Fourteenth Amendment to the Constitution of the United States, or ofIdaho Const., Art. I, §§ 13 and 16. Olson v. Idora Hill Mining Co., 28 Idaho 504, 155 P. 291 (1916); Marrs v. Oregon Short Line R.R., 33 Idaho 785, 198 P. 468 (1921).

Construction.

It was not the intention of legislature to penalize employer for failing to pay an unjust debt, nor for failure to pay when discharged laborer, after demanding payment, prevents compliance with demand by his own conduct, nor to deny or preclude right of employer to interpose any valid counterclaim or defense to claim of such laborer. Olson v. Idora Hill Mining Co., 28 Idaho 504, 155 P. 291 (1916); Goodell v. Pope-Shenon Mining Co., 36 Idaho 427, 212 P. 342 (1922).

Former similar law did not require that demand be made in writing or that any amount should be named by claimant. Marrs v. Oregon Short Line R.R., 33 Idaho 785, 198 P. 468 (1921).

It was the purpose of former similar law to impose penalty upon employer in case of his failure to pay employee wages earned when due, after proper demand has been made therefor. Robinson v. St. Maries Lumber Co., 34 Idaho 707, 204 P. 671 (1921); Goodell v. Pope-Shenon Mining Co., 36 Idaho 427, 212 P. 342 (1922).

When a man employed as manager of a service station was discharged and not paid either his salary or commissions due, he was entitled to recover his salary, commissions and salary for the 30 day period following his discharge. Kingsford v. Bennion, 68 Idaho 501, 199 P.2d 625 (1948).

Court Costs.

Effect of Tender.

Employer in suit to recover wages, penalties and attorney fees was liable for court costs where tender of amount of wages due was not paid into court. Lindsey v. McCatron, 78 Idaho 211, 299 P.2d 496 (1956). Effect of Tender.

Running of penalty is stopped by tender of wages due. Employee, however, has right to bring suit for penalty that had accrued up to that time. Robinson v. St. Maries Lumber Co., 34 Idaho 707, 204 P. 671 (1921); Lindsey v. McCatron, 78 Idaho 211, 299 P.2d 496 (1956).

Evidence and Proof.

Where plaintiff was paid $2.50 an hour and claimed $3.04 an hour, but failed to prove either an agreement as to amount of wages or the standard, reasonable, or going wage for like services, evidence that employees who were members of a union, to which plaintiff did not belong, received $3.04 an hour was insufficient to entitle plaintiff to judgment for the difference between $2.50 and $3.04 an hour. Grieser v. Haynes, 89 Idaho 198, 404 P.2d 333 (1965).

Exclusivity of Remedies.

Suit for back wages along with 30 days additional wages under former similar law and suit for treble damages are mutually exclusive remedies. Lawless v. Davis, 98 Idaho 175, 560 P.2d 497 (1977).

Under the wage and hour law, an employee whose wages are not fully paid upon termination is entitled to alternative remedies; one remedy is to recover damages for a 30-day period after the date of termination from employment, and the other remedy is to recover, as damages, treble the amount of wages found due and owing — these remedies, however, are mutually exclusive. De Witt v. Medley, 117 Idaho 744, 791 P.2d 1323 (Ct. App. 1990).

Payment by Check.

Checks of employer constituted the equivalent of cash where employer always paid by check and employee had accepted payment by check prior to his layoff or discharge. Lindsey v. McCatron, 78 Idaho 211, 299 P.2d 496 (1956).

Penalty.

The amount paid in case of “such default” of payment of wages by employer is classified as a penalty. Lindsey v. McCatron, 78 Idaho 211, 299 P.2d 496 (1956).

Penalty Denied in Trial Court.

Where plaintiff brings an action seeking to recover wages and penalty for nonpayment, and the trial court holds against him with respect to the penalty for such nonpayment, and defendant appeals, the supreme court will not reverse the ruling of the court on denial of the penalty. People ex rel. Heartburg v. Interstate Eng’g. & Constr. Co., 58 Idaho 457, 75 P.2d 997 (1937).

Penalty Not Assignable.

Right to recover penalty is personal and cannot be assigned. Robinson v. St. Maries Lumber Co., 34 Idaho 707, 204 P. 671 (1921).

Penalty Not Dependent on Lien.

Point at Which Wages Become Due.

Where plaintiff sought to enforce farm laborer’s lien and also to hold owner liable for penalty under former similar law, personal judgment against defendant could be entered, although proof of lien failed. Backman v. Douglas, 46 Idaho 671, 270 P. 618 (1928). Point at Which Wages Become Due.

It would be unreasonable to conclude an employee’s wages do not become due until after he has completed the employer’s grievance proceedings. Such an interpretation of former section would compromise the purpose of the Idaho wage claim statutes — to compensate terminated employees as soon as possible. Kalac v. Canyon County, 119 Idaho 650, 809 P.2d 511 (Ct. App. 1990).

Rational Relation to State’s Interest.

The penalty provisions of the wage and hour law are rationally related to the state’s overall interest in protecting wage earners. De Witt v. Medley, 117 Idaho 744, 791 P.2d 1323 (Ct. App. 1990).

Trial De Novo.

Where plaintiff sued defendants in probate court for wages, attorney fees, and penalty based on joint liability of defendants as partners, but recovered judgment against one defendant only, and plaintiff appealed to district court the whole case was before the district court for a trial de novo. Davis v. Parkin, 75 Idaho 266, 270 P.2d 1007 (1954).

Exclusivity of Remedies.

Under the wage and hour law, an employee whose wages are not fully paid upon termination is entitled to alternative remedies; one remedy is to recover damages for a 30-day period after the date of termination from employment, and the other remedy is to recover, as damages, treble the amount of wages found due and owing — these remedies, however, are mutually exclusive. De Witt v. Medley, 117 Idaho 744, 791 P.2d 1323 (Ct. App. 1990).

Purpose.

The penalty provisions of the wage and hour law serve as a means to compensate an employee for the time and expense of securing unpaid wages and to encourage employers to tender those wages before the employee has to resort to the courts to secure payment. De Witt v. Medley, 117 Idaho 744, 791 P.2d 1323 (Ct. App. 1990).

Rational Relation to State’s Interest.

The penalty provisions of the wage and hour law are rationally related to the state’s overall interest in protecting wage earners. De Witt v. Medley, 117 Idaho 744, 791 P.2d 1323 (Ct. App. 1990).

Compiler’s Notes.

This section was formerly compiled as§ 45-610.

Former§ 45-608 was amended and redesignated as§ 45-614 by § 15 of S.L. 1989, ch. 280.

The amending clause of section 2 of S.L. 1965, ch. 436, read: “Section 2. That chapter 6 of title 44, Idaho Code, be, and the same is hereby amended by adding a new section thereto, following section 45-609, to be known and designated as section 45-610, and to read as follows.”

Application.

Where employer insured employee’s life, the policies to vest in employee if employer went out of business, these benefits were not attributed to, or earned in a specific pay period, but were earned over the entire course of the employment relationship, and this section applies to an action to recover retirement benefits such as those in this case. Latham v. Haney Seed Co., 119 Idaho 412, 807 P.2d 630 (1991).

The Idaho wage claim act requires an employer only to pay a minimum wage for all hours worked and to pay employees at least monthly. Beyond that, the act does not place any limitations on the ability of the employer and employee to contract for the terms of the employee’s compensation. Savage v. Scandit Inc., 163 Idaho 637, 417 P.3d 234 (2018).

No Contract of Employment.

Plaintiff was not entitled to wages for duties performed as acting lieutenant/jail commander before sheriff appointed him to that position where county commissioners had not approved the position; sheriff did not have the power to contract with plaintiff for a position that the commissioners had not created. Barth v. Canyon County, 128 Idaho 707, 918 P.2d 576 (1996).

Wages.

Stock options do not fall under the definition of wages because that form of compensation is not payable in cash, with a check, or by deposit into an employee’s bank account. Paolini v. Albertson’s, Inc., 143 Idaho 547, 149 P.3d 822 (2006).

Wages Due.

This section applies to all wages due during the month. Wages earned over a longer period of time, such as an annual bonus based upon net profits, will come due during a specific calendar month and are also covered by this section. Gray v. Tri-Way Constr. Servs., 147 Idaho 378, 210 P.3d 63 (2009).

Idaho Law Review.

Idaho Law Review. — Idaho vs FLSA: Department of Corrections Must Change to Comply with Federal Law, Comment. 52 Idaho L. Rev. 975 (2016).

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Compiler’s Notes.

This section was formerly compiled as§ 45-611.

Former§ 45-609 was amended and redesignated as§ 45-601 by § 1 of S.L. 1989, ch. 280.

The amending clause of section 3 of S.L. 1967, ch. 436, read: “Section 3. That chapter 6 of title 44, Idaho Code, be, and the same is hereby amended by adding a new section thereto, following section 45-610, to be known and designated as section 45-611, and to read as follows.”

Deduction of Wages.

Where an employee quit rather than work under a procedure whereby money would be deducted from her wages until she redid work to her employer’s satisfaction, substantial evidence supported the industrial commission’s findings that she quit for good cause and was eligible for unemployment benefits. Wood v. Quali-Dent Dental Clinics, 107 Idaho 1020, 695 P.2d 405 (1985).

Employment at Will.

The “employment at will” doctrine is applicable solely to actions for wrongful discharge, not to actions for unemployment compensation benefits. Stevenson v. TR Video, Inc., 112 Idaho 1081, 739 P.2d 380 (1987).

Evidence of Illegal Withholding.

Sufficient facts were placed before the industrial commission to raise the issue of an illegal withholding under this section, where the employee alleged the existence of a binding oral contract between himself and his employer concerning his wages, he alleged a unilateral breach of that contract by his employer which resulted in a withholding of a portion of his wages due under the terms of the oral contract, and the employer took the position before the appeals examiner that his actions changing the oral agreement were mandated by a federal labor law. Stevenson v. TR Video, Inc., 112 Idaho 1081, 739 P.2d 380 (1987).

Ground for Terminating Employment.

An employer’s violation of this section gives the aggrieved employee good cause as a matter of law for leaving his employment if the amount withheld was not trivial, and the employee’s attempt to settle the matter with his employer was rebuffed. Stevenson v. TR Video, Inc., 112 Idaho 1081, 739 P.2d 380 (1987).

Written Authorization.

When an employer, without employee’s written authorization, withheld amounts from employee’s wages representing the value of supplies and building materials employee had received from employer, the withholding was in violation of employee’s statutory rights. Smith v. Johnson’s Mill, 96 Idaho 760, 536 P.2d 755 (1975).

Compiler’s Notes.

Former§ 45-610 was amended and redesignated as§ 45-608 by § 9 of S.L. 1989, ch. 280.

Compiler’s Notes.

Former§ 45-611 was amended and redesignated as§ 45-609 by § 10 of S.L. 1989, ch. 280.

Award by Court.

When a statute allows an award beyond actual damages, the court must decide whether the award is intended to be a penalty or compensation. If it is intended to be a penalty, the statute’s requirements must be strictly construed; if it is intended to be compensatory, the statutory requirements are not to be strictly construed. Barth v. Canyon County, 128 Idaho 707, 918 P.2d 576 (1996).

Legislative Intent.

The legislature did not intend the word “penalties”, as used in this section, to refer to the award of treble damages. Barth v. Canyon County, 128 Idaho 707, 918 P.2d 576 (1996).

Prior Laws.

Former§ 45-612, which comprised I.C.,§ 45-612, as added by 1967, ch. 436, § 4, p. 1469, was repealed by S.L. 1989, ch. 280, § 13.

Litigation of Issue.

In an employee’s action against an employer to recover a commission on a condominium sale, after determining that judgment was properly rendered to the employer, the court declined to award attorney fees to the employer because the question of the falsity of the employee’s claim had not been litigated. Bakker v. Thunder Spring-Wareham, LLC, 141 Idaho 185, 108 P.3d 332 (2005).

Compiler’s Notes.

Former§ 45-613 was amended and redesignated as§ 45-616 by § 17 of S.L. 1989, ch. 280.

Stock Options.

In a wrongful discharge case in which an employee claimed he was fired for petitioning to exercise stock options granted to him by the employer, the United States court of appeals for the Ninth Circuit requested the Idaho supreme court to accept certification of a question asking whether stock options can be wages. Paolini v. Albertson’s Inc., 418 F.3d 1023 (9th Cir. 2005).

Stock options do not fall under the definition of wages because that form of compensation is not payable in cash, with a check, or by deposit into an employee’s bank account. Paolini v. Albertson’s, Inc., 143 Idaho 547, 149 P.3d 822 (2006).

District court properly granted summary judgment based on a wrongful discharge claim under Idaho’s wage laws as the facts, which involved the denial of accelerated vesting with respect to stock options, did not support a wrongful discharge claim because stock options did not constitute wages. Paolini v. Albertson’s Inc., 482 F.3d 1149 (9th Cir. 2007).

Amendments.

The 2019 amendment, by ch. 93, substituted “twelve (12) months from the accrual” for “six (6) months from the accrual” near the end of the first sentence.

Compiler’s Notes.

This section was formerly compiled as§ 45-608.

The phrase “the effective date of this act” in the next-to-last sentence refers to the effective date of S.L. 1947, Chapter 36, which was effective February 8, 1947.

Claims for Additional Salary.

The proviso in the first sentence of this section refers to a claim for additional salary for a specific pay period from which an employee has already received some payment of salary or wages; the term pay period does not refer to the entire course of an employment relationship. Johnson v. Allied Stores Corp., 106 Idaho 363, 679 P.2d 640 (1984).

Instructions.

Jurors should have been instructed by the court as to whether defendant’s first four payments to plaintiff constituted payment of wages for the pay periods covered by such payments and whether the action by plaintiff was for additional wages claimed for those pay periods and consequently was barred by the 6-months [now 12-months] provision; the jurors should have been instructed if they found the first four payments were on account as claimed by plaintiff, then his action was not barred but if such payments were made in the manner claimed by defendant, then the action as to the four pay periods was barred. Anderson v. Lee, 86 Idaho 220, 386 P.2d 54 (1963).

Where employment agreement which set an agreed hourly wage was indefinite as to duration and time for payment of wages, it was a question of fact whether employer’s first four payments constituted wages for the pay periods, so as to render employee’s action for additional wages claimed for those four pay periods barred by the six-month [now twelve-month] statute of limitations; and jurors should have been so instructed. Anderson v. Lee, 86 Idaho 300, 386 P.2d 54 (1963).

Issues.

Where, more than six months but less than two years after his employment was terminated, employee brought action against employer for wages, and employer counterclaimed and alleged action was barred by statute of limitations under this section, whether payments made by employer were for all work up to each respective payment and made the six-month [now twelve-month] statute of limitations on additional wage claims applicable, or whether they were on account, for no particular period, making the limitation statute inapplicable, were issues of fact. Anderson v. Lee, 86 Idaho 300, 386 P.2d 54 (1963).

Overtime.

Where the school district could have compensated the employee for his overtime work any time during the term of his contract, it was not until that contract expired that his cause of action then accrued, for it is only then that he knew that he would not be compensated for the unpaid overtime. Gilbert v. Moore, 108 Idaho 165, 697 P.2d 1179 (1985).

Where the longstanding practice of the county was to pay all overtime accrued upon termination, and the sheriff’s action was filed within one month of his termination of employment, the county’s assertion of the defense of failure to file within the statutory period was without merit. Schoonover v. Bonner County, 113 Idaho 916, 750 P.2d 95 (1988).

Remuneration of Partners.

Severance Pay.

Partner’s claim for “unpaid additional wages” was subject to the six-month [now twelve-month] limitation period expressed in this section. Callenders, Inc. v. Beckman, 120 Idaho 169, 814 P.2d 429 (Ct. App. 1991). Severance Pay.

A claim for severance pay is a component of the compensation in an employment agreement since severance pay is not a mere gratuity; thus, a claim for severance pay comes within the parameters of this section. Johnson v. Allied Stores Corp., 106 Idaho 363, 679 P.2d 640 (1984).

Because severance pay is not attributed to, or earned in a specific pay period, but, is earned over the entire course of the employment relationship, the six-month [now twelve-month] limitation period is inapplicable to a claim for severance pay; rather, the two-year period is applicable. Johnson v. Allied Stores Corp., 106 Idaho 363, 679 P.2d 640 (1984).

Employee had a right to collect his severance pay upon either his retirement or involuntary termination and where suit for severance pay was initiated less than two years from employee’s involuntary termination, the claim was not barred by the two-year limitation period. Johnson v. Allied Stores Corp., 106 Idaho 363, 679 P.2d 640 (1984).

When Statute Begins to Run.

If the payments made by defendant were on account as claimed by plaintiff employee, then no particular pay period was covered by such payments, and the six-month [now twelve-month] limitation for commencing suit would not apply because in such case plaintiff would not be claiming additional wages for the pay period covered by any of the payments made; his claim, in that case, would be for an unpaid balance applicable to the entire period of his employment, but if, on the other hand, such four payments were to cover the full amount earned by plaintiff up to the time of making the payments, plaintiff’s action would be barred by the six-months [now twelve-months] provision. Anderson v. Lee, 86 Idaho 220, 386 P.2d 54 (1963).

Where one was employed from calendar year to calendar year at a fixed salary with a bonus of 25% of profits of business at end of each calendar year and was wrongfully discharged in February, the claim for salary to the end of the year and the bonus for such year was governed by the two-year limitation and not the six-month [now twelve-month] limitation. Thomas v. Ballou-Latimer Drug Co., 92 Idaho 337, 442 P.2d 747 (1968).

A cause of action accrues under this section when an employee has a right to collect the salary or wages, etc., that are allegedly owed to him. Johnson v. Allied Stores Corp., 106 Idaho 363, 679 P.2d 640 (1984).

Six-month [now twelve-month] limitations period applied to a former employee’s breach of contract and§ 45-606(1) claims where the complaint specifically requested additional wages for specified periods of employment in the form of overtime and double time, as well as additional accrued vacation pay, which could be characterized as wages owed but unpaid. Wood v. Kinetic Sys., 766 F. Supp. 2d 1080 (D. Idaho 2011).

Prior Laws.

Former§ 45-615, which comprised I.C.,§ 45-615, as added by 1899, p. 394, § 1; reen. R.C., § 4919; am. 1915, ch. 70, § 1, p. 180; reen. C.L., § 5148a; C.S., § 7380; I.C.A.,§ 44-605; am. and redesig. 1989, ch. 280, § 16, p. 677; am. 1990, ch. 226, § 1, p. 603, was repealed by S.L. 1999, ch. 51, § 16, effective July 1, 1999.

Attorney Fees.

With respect to his claim for $23,077 of unpaid wages, for which he received treble damages, a former corporation employee was entitled to attorney fees incurred below and on appeal. The employee was not entitled to attorney fees for the remainder of the claims he had raised on appeal. Maroun v. Wyreless Sys., 141 Idaho 604, 114 P.3d 974 (2005).

District court did not abuse its discretion in the amount of attorney fees it awarded to a former COO, where it applied the correct legal standard, analyzed each of the factors set forth in Idaho R. Civ. P. 54(e)(3), significantly reduced the number of hours billed by the COO’s legal team on the grounds that the amount of billed time was shocking, factored in the company’s discovery abuses and the delay due to the company’s bankruptcy, and considered the fact that the COO had to defend against counter-claims that the company eventually abandoned. Lunneborg v. My Fun Life, 163 Idaho 856, 421 P.3d 187 (2018).

Treble Damages.

Pursuant to this section, the district court erred by not trebling the unpaid wage amount of $23,077 in the stipulated judgment because both parties conceded that the corporation owed $23,077 in unpaid wages and the employee had incurred the expense of instituting a lawsuit to recover his unpaid salary and that was the harm treble damages were intended to deter. Maroun v. Wyreless Sys., 141 Idaho 604, 114 P.3d 974 (2005). District court properly affirmed an arbitration panel’s refusal to award treble damages and attorney fees on an employee’s employment agreement claim because the panel did not rule that the amount owed on the employment agreement claim constituted monies owed for unpaid wages. The arbitrators awarded the employee damages under the heading of “Wage Claim,” but the mere use of that shorthand term did not suggest the panel intended the award to represent wages; instead, those damages were part of a liquidated damages provision as articulated in the employment agreement. Moore v. Omnicare, Inc., 141 Idaho 809, 118 P.3d 141 (2005).

Future wages are not subject to the mandatory trebling provision of the Idaho wage claim act. In distinguishing between future wages and those subject to the act, the question is whether the employee is entitled to the wages for services rendered, or whether there is more that she must do in order to be entitled to the wages. Savage v. Scandit Inc., 163 Idaho 637, 417 P.3d 234 (2018).

Bonuses fall under the definition of wages and are subject to the mandatory trebling statute, if they are not paid when they are due. Savage v. Scandit Inc., 163 Idaho 637, 417 P.3d 234 (2018).

Decisions Under Prior Law

Amount of Demand.

Attorney fees are not awarded when the employee’s written demand for past due wages exceeds the amount of wages awarded by the district court, even if the difference between the amounts is relatively minor. Shay v. Cesler, 132 Idaho 585, 977 P.2d 199 (1999).

Employee.

A county sheriff is not an “employee” for purposes of the attorney fees provided in this section. LaBrosse v. Board of Comm’rs, 105 Idaho 730, 672 P.2d 1060 (1983).

Extinguishment of Right.

Tender of amount of wages due prior to date of written demand extinguishes employee’s right to attorney fees. Lindsey v. McCatron, 78 Idaho 211, 299 P.2d 496 (1956).

Rejection of Award.

Sufficiency of Evidence.

Plaintiff’s statement that he would reject an award of $1.00 in attorney’s fees, the amount originally sought, destroys the effect of the demand. Barth v. Canyon County, 128 Idaho 707, 918 P.2d 576 (1996). Sufficiency of Evidence.

Evidence was sufficient to warrant a recovery for work and labor performed, so as to bring it within the terms of this section. Harp v. Stonebraker, 57 Idaho 434, 65 P.2d 766 (1937).

Treble Damages.

The district court’s award of treble damages to the plaintiffs was affirmed because the employer failed to tender wages that were due and owing within 48 hours of the plaintiffs’ written demand for wages. Polk v. Robert D. Larrabee Family Home Ctr., 135 Idaho 303, 17 P.3d 247 (2000).

Trial De Novo.

Where plaintiff sued defendants in probate court for wages, attorney fees, and penalty based on joint liability of defendants as partners, but recovered judgment against one defendant only, and plaintiff appealed to district court the whole case was before the district court for a trial de novo. Davis v. Parkin, 75 Idaho 266, 270 P.2d 1007 (1954).

When Fees Allowable.

Attorneys’ fees cannot be allowed where demand was for amount exceeding that which could be found due for wages. Marrs v. Oregon Short Line R.R., 33 Idaho 785, 198 P. 468 (1921).

Liability for treble damages did not arise from failure to pay amount demanded, but upon failure to pay any wages or salary due upon demand. Marrs v. Oregon Short Line R.R., 33 Idaho 785, 198 P. 468 (1921).

In claim for wages, where no written demand is made by plaintiff, it is error to allow him attorney’s fees. Cosner v. United Mines Co., 33 Idaho 801, 198 P. 472 (1921).

There could be no recovery of attorney’s fees unless amount sought was justly due and employee has made proper demand for such amount. Goodell v. Pope-Shenon Mining Co., 36 Idaho 427, 212 P. 342 (1922).

Where in a claim for wages no demand was made in writing by discharged employee, it was error to allow attorney fees to such employee. Kingsford v. Bennion, 68 Idaho 501, 199 P.2d 625 (1948).

Where respondent brought suit for the recovery of his wages earned and due according to the terms of his employment and established that the amount for which he brought suit, $543.74, was justly due less legal deductions and that tender made by appellant of $333.14 was considerably less than that amount, and that he had made due demand for a sum not to exceed the amount found due less legal deductions, such respondent became entitled to recovery of attorneys’ fees to be taxed as costs of suit. St. John v. O’Reilly, 80 Idaho 429, 333 P.2d 467 (1958).

A demand in writing for wages due was made as shown by the record in action for wages with the notification that, if payment was not received within five days and suit was thereafter brought, attorney fees and penalty would be sought: upon action being thus brought, attorneys’ fees in the amount of $700 were stipulated and agreed upon. O’Harrow v. Salmon River Uranium Dev., Inc., 84 Idaho 427, 373 P.2d 336 (1962).

Where the respondent’s demand for salary was greater than the amount to which the trial court found him to be lawfully entitled, the trial court erred in awarding attorney’s fees. Fish v. Fleishman, 87 Idaho 126, 391 P.2d 344 (1964). Where the wage earner’s demand in writing far exceeded the amounts found by the trial court to be due and owing, the trial court did not err by failing to award attorney’s fees. Gano v. Air Idaho, Inc., 99 Idaho 720, 587 P.2d 1255 (1978).

Where the amount of damages sought by the employee is greater than the amount the trial court finds him to be lawfully entitled, the trial court could not award attorney fees. Neal v. Idaho Forest Indus., Inc., 107 Idaho 681, 691 P.2d 1296 (Ct. App. 1984).

No entitlement to attorney fees existed under this section where the wages awarded were less than the amount demanded. Hales v. King, 114 Idaho 916, 762 P.2d 829 (Ct. App. 1988).

Cross References.

Contempt proceedings,§ 7-601 et seq.

Compiler’s Notes.

This section was formerly compiled as§ 45-613.

The amending clause of section 5 of S.L. 1967, ch. 436, read: “Section 5. That chapter 6 of title 44, Idaho Code, be, and the same is hereby amended by adding a new section thereto, following section 45-612, to be known and designated as section 45-613, and to read as follows.” See Compiler’s note under§ 45-609.

Preliminary Determination of Work Relationship.

In order to proceed with a wage collection, the department of labor and industrial services [now department of labor] must determine whether wages are due and owing to the claimant; inherent in making such a determination is the department’s resolution of whether the parties maintained an employer/employee relationship, as such a relationship is a necessary subsidiary fact which must be established before the department may proceed; accordingly, the department is authorized to make that preliminary determination. State ex rel. Dept. of Labor & Indus. Servs. v. Hill, 118 Idaho 278, 796 P.2d 155 (Ct. App. 1990).

Cross References.

Jurisdiction of small claims department,§ 1-2301.

Prior Laws.

Former§ 45-617, which comprised I.C.,§ 45-617, as added by 1967, ch. 436, § 6, p. 1469; am. 1971, ch. 80, § 1, p. 177; am. 1974, ch. 39, § 75, p. 1023; am. 1977, ch. 141, § 1, p. 302; am. and redesig. 1989, ch. 280, § 18, p. 677; am. 1990, ch. 226, § 2, p. 603; am. 1996, ch. 421, § 37, p. 1406, was repealed by S.L. 1999, ch. 51, § 19, effective July 1, 1999.

Compiler’s Notes.

For further information on Idaho department of labor farmworker services, see https://www.labor.idaho.gov/dnn/Job-Seekers/Farmworker-Services .

Award Beyond Damages.

When a statute allows an award beyond actual damages, the court must decide whether the award is intended to be a penalty or compensation. If it is intended to be a penalty, the statute’s requirements must be strictly construed; if it is intended to be compensatory, the statutory requirements are not to be strictly construed. Barth v. Canyon County, 128 Idaho 707, 918 P.2d 576 (1996).

Cash Value of Insurance Policy.

Commissions.

In action for breach of employment contract, it was error for the trial judge to treat the cash value of the life insurance policy as wages, where the proceeds of the policy were to be paid to the employee at retirement or to his heirs upon his death. The policy was a fixed benefit of employment status, and, as such, it was not compensation earned in increments as services were performed, unlike wages, and also unlike compensation paid in direct consideration of services rendered, in amounts over and above an employee’s regular paychecks. Whitlock v. Haney Seed Co., 114 Idaho 628, 759 P.2d 919 (Ct. App. 1988). Commissions.

“Wages” include commissions. Smith v. Idaho Peterbilt, Inc., 106 Idaho 846, 683 P.2d 882 (Ct. App. 1984).

Exclusivity of Remedies.

Suit for treble damages and suit for back wages along with 30 days additional wages were mutually exclusive remedies. Lawless v. Davis, 98 Idaho 175, 560 P.2d 497 (1977).

The farm labor lien statute,§ 45-301 et seq, provides a lien on the crop as security for the payment of any judgment awarded; wage and hour laws, on the other hand, provide for the measure of damages to be awarded. Neither the language nor the titles of the separate acts suggested that the remedies under the acts were mutually exclusive; the two statutes were intended to fulfill different purposes. Sage v. Richtron, Inc., 108 Idaho 837, 702 P.2d 875 (Ct. App. 1985).

Grounds.

A request for attorney fees cannot be granted under§ 12-120 when the underlying cause of action is a wage claim brought pursuant to this section. Hutchison v. Anderson, 130 Idaho 936, 950 P.2d 1275 (Ct. App. 1997).

Independent Contractors.

Contracts between co-counsel and the county established that they served as independent contractors doing work that was limited in scope and duration, and as such they were paid a fee for their services as opposed to wages. Pena v. Minidoka County, 133 Idaho 222, 984 P.2d 710 (1999).

Payment for Earned Vacation.

Payment for earned vacation was directly analogous to wages. Whitlock v. Haney Seed Co., 114 Idaho 628, 759 P.2d 919 (Ct. App. 1988).

Preliminary Determination of Work Relationship.

In order to proceed with a wage collection, the department of labor and industrial services [now department of labor] must determine whether wages are due and owing to the claimant; inherent in making such a determination is the department’s resolution of whether the parties maintained an employer/employee relationship, as such a relationship is a necessary subsidiary fact which must be established before the department may proceed; accordingly, the department is authorized to make that preliminary determination. State ex rel. Dept. of Labor & Indus. Servs. v. Hill, 118 Idaho 278, 796 P.2d 155 (Ct. App. 1990).

Proof Necessary.

In order to recover treble damages, it need not be shown that an employer withholding wages acted with malice, wantonness, fraud or oppression, but it must be shown that the wages were wrongfully withheld. Gano v. Air Idaho, Inc., 99 Idaho 720, 587 P.2d 1255 (1978). The liability of the employer for treble damages was not dependent upon a finding that the employer “wrongfully” withheld the wages due; the employee only had to show that his wages were due and unpaid. Smith v. Idaho Peterbilt, Inc., 106 Idaho 846, 683 P.2d 882 (Ct. App. 1984).

Tender of Wages.

The treble damages penalty could not apply when a tender was made of the full amount of the wages due. Smith v. Idaho Peterbilt, Inc., 106 Idaho 846, 683 P.2d 882 (Ct. App. 1984).

A tender of part of the wages ultimately found due should stop the running of the treble damages penalty as to the portion of the wages reflected by the tender, where such a partial tender is made unconditionally to the employee. Only if the tender is made in fact and rejected will the employer be completely protected from the invocation of the penalty statute. Smith v. Idaho Peterbilt, Inc., 106 Idaho 846, 683 P.2d 882 (Ct. App. 1984).

A pre-complaint offer of wages to employees must take the form of an actual tender in order to escape liability by the employer for the treble damage penalty. Hales v. King, 114 Idaho 916, 762 P.2d 829 (Ct. App. 1988).

Treble Damages.

In suit for wages wrongfully withheld, treble damages must have been awarded whenever it was proved that the wages have been wrongfully withheld. Goff v. H.J.H. Co., 95 Idaho 837, 521 P.2d 661 (1974).

Since the status of public officer cannot serve to exempt him from a duty to mitigate, while, at the same time, allowing him the benefits of a statute designed to protect wage earners who do have such a duty, an award of damages to a police chief who was wrongfully discharged could not be trebled. Buckalew v. City of Grangeville, 100 Idaho 460, 600 P.2d 136 (1979).

Where an employer was preparing to sell a division of his company within 60 days and promised his employee a bonus of 60 days’ additional salary if the employee would remain with the company until the division was sold, such 60-day “pay bonus” was a wage; thus, employer’s refusal to pay such bonus subjected the employer to treble damages. Neal v. Idaho Forest Indus., Inc., 107 Idaho 681, 691 P.2d 1296 (Ct. App. 1984).

To recover treble damages, a showing of wrongfulness was not required; neither was it necessary to show bad faith on the part of the employer. Sage v. Richtron, Inc., 108 Idaho 837, 702 P.2d 875 (Ct. App. 1985).

Where the deputy sheriff was not entitled to salary as an incident of his right to his office, and his status was as “employee at will,” he was entitled to recover treble damages. Schoonover v. Bonner County, 113 Idaho 916, 750 P.2d 95 (1988).

In action for breach of employment contract, there was no procedural error in the trial judge’s decision to apply treble damages, even though it was not pleaded by either party, nor was it otherwise raised as an issue at trial, where the complaint prayed for monetary relief from breach of an employment contract, and this was sufficient to place the employer on notice that unpaid wages, or items analogous to wages, could be awarded. Whitlock v. Haney Seed Co., 114 Idaho 628, 759 P.2d 919 (Ct. App. 1988).

In action for breach of employment contract, the employee was entitled to prejudgment interest only on the untrebled portion of the vacation pay due him because the additional amount produced by trebling became “due” only when judgment was entered. Whitlock v. Haney Seed Co., 114 Idaho 628, 759 P.2d 919 (Ct. App. 1988). A deferral account, the purpose of which was to provide an executive employee with income even when the employer did not produce a pre-tax profit for the month, was not an agreement within the scope of ERISA and was subject to trebling under this section. Bilow v. Preco, Inc., 132 Idaho 23, 966 P.2d 23 (1998).

When Action Accrues.

Where the school district could have compensated the employee for his overtime work any time during the term of his contract, it was not until that contract expired that his cause of action then accrued, for it is only then that he knew that he would not be compensated for the unpaid overtime. Gilbert v. Moore, 108 Idaho 165, 697 P.2d 1179 (1985).

Who May Sue.

This section allows any employee who has a claim for unpaid wages to bring suit in his own behalf in any court of competent jurisdiction. Rodwell v. Serendipity, Inc., 99 Idaho 894, 591 P.2d 141 (1979).

A wage earner need not proceed through the department of labor to trigger relief. Schoonover v. Bonner County, 113 Idaho 916, 750 P.2d 95 (1988).

Any employee, who for any reason has terminated his or her employment and who has had wages withheld, may utilize this section as a remedy. Hales v. King, 114 Idaho 916, 762 P.2d 829 (Ct. App. 1988).

Cross References.

Secretary of state,§ 67-901 et seq.

Cross References.

Interest rate on judgments,§ 28-22-104.

Lien Not Barred by Res Judicata.

Where the district court dismissed a hospital’s claim against a patient, who lived outside the state and was injured outside the state, for lack of in personam jurisdiction, there was no final adjudication on the merits; thus, the hospital’s lien foreclosure claim against the patient was not barred by the doctrine of res judicata. Saint Alphonsus Regional Medical Ctr. v. Bannon, 128 Idaho 41, 910 P.2d 155 (1995).

ALR.

§ 45-702. Perfecting lien — Statement of claim — Contents — Filing.

In order to perfect such lien, an officer or agent of such hospital, before, or within ninety (90) days after, such person shall have been discharged therefrom, shall file in the office of the recorder of the county in which such hospital shall be located a verified statement in writing setting forth the name and address of such patient, as it shall appear on the records of such hospital, the name and location of such hospital, and the name and address of the officer or agent of such hospital filing the lien, the dates of admission to and discharge of such patient therefrom, the amount claimed to be due for such hospital care, and, to the best of claimant’s knowledge, the names and addresses of all persons, firms, or corporations claimed by such injured person or the legal representative of such person, to be liable for damages arising from such injuries; such claimant shall also, within one (1) day after the filing of such claim or lien, mail a copy thereof, postage prepaid, to each person, firm, or corporation so claimed to be liable for such damages, at the address so given in such statement. The filing of such claim or lien shall be notice thereof to all persons, firms or corporations liable for such damages, whether or not they are named in such claim or lien.

History.

1941, ch. 118, § 2, p. 238; am. 1967, ch. 65, § 1, p. 147.

Effective Dates.

Section 2 of S.L. 1961, ch. 21 declared an emergency. Approved February 7, 1961.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Cross References.

Worker’s compensation,§ 72-101 et seq.

Compiler’s Notes.

The term “this act” refers to S.L. 1941, Chapter 118, which is compiled as§§ 45-701 to 45-704, and 45-705. The term probably should read “this chapter,” being chapter 7, title 45, Idaho Code.

The bracketed insertions in the section heading and text were added by the compiler to reflect the terminology currently used in title 72, Idaho Code.

Effective Dates.

Section 6 of S.L. 1941, ch. 118 declared an emergency. Approved March 10, 1941.

Lien Waivers.

In action involving contract dispute which arose from a remodeling project that plaintiffs performed on residential property for defendants, lien waiver signed by plaintiffs and defendants did not hold defendants harmless from claims of subcontractors where remodeling project differed from other projects performed by plaintiffs for defendant in that in this project plaintiffs did not control or direct the subcontractors as they had in the past and defendants dealt directly with the subcontractors in that they paid several of these contractors directly and directed their work. Baker v. Boren, 129 Idaho 885, 934 P.2d 951 (Ct. App. 1997).

Cross References.

Attorney’s lien,§ 3-205.

Carey Act liens,§ 42-2203 et seq.

Future interest, lien on,§ 45-107.

Judgment liens,§§ 5-513, 10-1110.

Assignment of Interest.

Purchasers under real estate sales contract never held legal title to the property but only an equitable interest as purchasers; they retained no interest in the property when they assigned their interest in the contract to the debtors, and they did not have a vendor’s lien under the provisions of this section. In re Krueger, 127 Bankr. 252 (Bankr. D. Idaho 1991).

Attorney’s Fees.

Attorney’s fees are not a cost chargeable in foreclosing vendor’s lien. Farnsworth v. Pepper, 27 Idaho 154, 148 P. 48 (1915).

Conditional Sale Contract.

Deficiency Judgment.

Vendors did not, at the time of securing an attachment, have a vendor’s lien on the property described in the contract; they did not part with title to property sold; hence no vendor’s lien is involved. Heinrich v. Barlow, 87 Idaho 72, 390 P.2d 831 (1964). Deficiency Judgment.

Seller of interest in mining claims who retained title to secure payment of purchase price could foreclose vendor’s lien upon default of purchaser and recover judgment for deficiency if property did not sell for enough to pay amount of debt. Ferguson v. Blood, 152 F. 98 (9th Cir. 1907).

Deficiency judgment may be entered in accordance with§ 6-101, when the property is insufficient to satisfy claim. Farnsworth v. Pepper, 27 Idaho 154, 148 P. 48 (1915).

Equitable Title.

Equitable title will support vendor’s lien. Farnsworth v. Pepper, 27 Idaho 154, 148 P. 48 (1915).

Failure of Consideration.

A seller who, through no fault of his own, remains unpaid because the consideration promised is not delivered has a vendor’s lien on the property regardless of the nature of the promised consideration or collateral. Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975).

A deed to a parcel of land cannot be considered payment for other property unless it is accepted by the seller as a representation of the parcel of land and not merely a physical possession. Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975).

Nature of Lien.

Vendor’s lien recognized in bankruptcy court. In re Lane Lumber Co., 210 F. 82 (D. Idaho 1913), aff’d, 217 F. 550 (9th Cir. 1914).

Vendor’s lien is incident of sale unless vendor’s intention that it shall not exist is clearly shown. Rogers v. Crockett, 41 Idaho 336, 238 P. 894 (1925).

A vendor’s lien is not a specific and absolute charge on the realty but a mere equitable right to resort to it, i.e., the property, on failure of payment by the vendee; thus, even if a judgment debtor did possess a vendor’s lien in certain property he sold, he possessed no interest in the property which could be levied upon pursuant to§ 8-539 by the judgment creditor. Estates of Somers v. Clearwater Power Co., 107 Idaho 29, 684 P.2d 1006 (1984).

A vendor’s lien, like a mortgage, is a security device, but unlike a mortgage, which arises from agreement of the parties, a vendor’s lien arises by operation of law, unless waived. Quintana v. Anthony, 109 Idaho 977, 712 P.2d 678 (Ct. App. 1985).

Protections Available.

The legislative policies underlying the mortgage foreclosure statutes should guide the court’s exercise of its equitable powers when enforcing a vendor’s lien. Therefore, protections paralleling those given mortgagors are appropriate and may be provided in equity, where sellers of real property assert the existence of vendors’ liens. Quintana v. Anthony, 109 Idaho 977, 712 P.2d 678 (Ct. App. 1985).

Relief to Buyer.

Waiver of Lien.

Where parties’ stipulation explicitly denominated foreclosure of vendor’s lien as the remedy for untimely performance of stipulated covenants, buyer was entitled to relief from any injustice shown to result from deferring a foreclosure sale of the ranch encumbered with the vendor’s lien while other property was sold at execution. Quintana v. Anthony, 109 Idaho 977, 712 P.2d 678 (Ct. App. 1985). Waiver of Lien.

Where person sells real estate to married man and conveys same by good and sufficient deed, and takes as part of purchase price promissory notes executed by vendee and vendee’s wife, the signature of wife to such notes does not constitute such security as will amount to a waiver of vendor’s lien. Smith v. Schultz, 23 Idaho 144, 129 P. 640 (1912).

Waiver of vendor’s lien induced by fraud of vendee will not be implied. Rogers v. Crockett, 41 Idaho 336, 238 P. 894 (1925).

A party with a vendor’s lien does not waive the right to that lien by seeking an attachment of the property; however, an attachment would not be valid and any rights to the property would be determined by the existing security interest. Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975).

ALR.

Marketability of title as affected by lien discharged only out of funds to be received from purchaser at closing. 55 A.L.R.3d 678.

Good Faith.

“Good faith” in this section means lack of actual or constructive knowledge of the applicable lien. Benz v. D. L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012).

Summary judgment was error against a lienholder, who claimed that he was owed $20,000 that he had paid toward the purchase of real property, in favor of a subsequent buyer of the property who had notice of the earlier claim, even if the subsequent buyer questioned the validity of the claim. The buyer was not a good faith purchaser. Cuevas v. Barraza, 152 Idaho 890, 277 P.3d 337 (2012).

To claim a vendor’s lien against a bank, foreclosing on another debt against the buyer of the property, the landowner/seller must prove that the bank was not an encumbrancer in good faith, e.g., having some notice that the purchase price for the land remained unpaid. Harris v. Bank of Commerce, 154 Idaho 356, 298 P.3d 1060 (2013).

Under this section, vendor’s liens are subject only to encumbrancers in good faith. Good faith means lack of actual or constructive knowledge of any existing lien. Constructive knowledge is knowledge of such facts and circumstances as would have led to the discovery of a purchase and conveyance by a reasonably prudent man. Constructive knowledge is derived from the record at the time of the encumbrance. The presence of either constructive or actual knowledge of an existing lien is sufficient to subordinate the second encumbrance to the existing lien. Union Bank, N.A. v. N. Idaho Resorts, LLC, 161 Idaho 583, 388 P.3d 907 (2017).

Knowledge of Lien.

Where, before the bank made a construction loan to the seller of a property, the bank had actual knowledge that the seller had contracted to sell the property and that the buyer had paid a portion of the purchase price, the bank had actual knowledge of the facts that gave rise to the buyer having a vendee’s lien upon the seller acquiring the real property, and the bank could not claim priority over that lien. Benz v. D. L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012).

Purchaser or Encumbrancer.

Value of Lien.

Vendor’s lien is enforceable against trustee in bankruptcy, who is not a purchaser or encumbrancer under this section. Creditor holding a lien by legal or equitable proceedings is not a purchaser or encumbrancer in good faith and for value. In re Lane Lumber Co., 210 F. 82 (D. Idaho 1913), aff’d, 217 F. 550 (9th Cir. 1914). Value of Lien.

The amount that a vendee is entitled to recover back under a lien is the total amount paid on the purchase price, less any sum that the vendor is entitled to offset against that amount as damages that the vendor is entitled to recover as a result of the transaction, such as the reasonable rental value of the land while the vendee was in possession. Benz v. D. L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012).

Agreement for Sale Necessary.

This section was never intended to authorize a vendee’s lien in a case where there was no “agreement for sale” of the property. Shepherd v. Dougan, 58 Idaho 543, 76 P.2d 442 (1938).

Applicability.

Summary judgment was error against a lienholder, who claimed that he was owed $20,000 that he had paid toward the purchase of real property, in favor of a subsequent buyer of the property who had notice of the earlier claim, even if the subsequent buyer questioned the validity of the claim. The lien was legally created by this section. Cuevas v. Barraza, 152 Idaho 890, 277 P.3d 337 (2012).

Lien Priority.

There was evidence that a buyer’s vendee’s lien was created before the bank’s deed of trust attached to the property because it was undisputed that before the bank made the construction loan to the seller, the bank had actual knowledge that the seller had contracted to sell the property and that the buyer had paid a portion of the purchase price. The bank had actual knowledge of the facts that gave rise to the buyer having a vendee’s lien, upon the seller acquiring the real property. Benz v. D. L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012).

Need for Possession.

This statutory lien exists independent of possession and it is not necessary to retain possession in order to protect lien. Wilson v. Sunnyside Orchard Co., 33 Idaho 501, 196 P. 302 (1921). Buyer’s suit for rescission and refund of instalment payments on the ground of false representation as to boundaries by seller was not barred where they remained in possession, if they offered to give land back and tendered quitclaim deed, since possession was retained as security for repayment of instalment payments. Brooks v. Jensen, 75 Idaho 201, 270 P.2d 425 (1954).

Buyer who made a down payment was not justified in retaining possession of property for several months in order to protect her security, since this section gives a lien to purchaser for amount of down payment independent of possession. Graves v. Cupic, 75 Idaho 451, 272 P.2d 1020 (1954), overruled on other grounds, Benz v. D.L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012).

Subsequent Sale and Mortgage.

Where purchaser properly rescinded real estate sale contract, he had a lien for return of purchase money paid in and value of improvements, and this lien was superior to sale and mortgage made after notice of pendency of a suit to declare and foreclose the lien. McMahon v. Cooper, 70 Idaho 139, 212 P.2d 657 (1949), overruled on other grounds, Benz v. D.L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012).

Timing of Lien.

The payment to the owner of any part of the purchase price of real property under an agreement of sale creates a lien under this section: the filing of a lis pendens is not a prerequisite. Benz v. D. L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012).

Value of Lien.

The amount that a vendee is entitled to recover back under a lien is the total amount paid on the purchase price, less any sum that the vendor is entitled to offset against that amount as damages that the vendor is entitled to recover as a result of the transaction, such as the reasonable rental value of the land while the vendee was in possession. Benz v. D. L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012).

ALR.

§ 45-805. Liens for services on or caring for property.

1. Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof, by labor, or skill, employed for the protection, improvement, safekeeping, or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due him from the owner, for such service. If the liens as herein provided are not paid within sixty (60) days after the work is done, service rendered or materials supplied, the person in whose favor such special lien is created may proceed to sell the property at a public auction after giving ten (10) days’ public notice of the sale by advertising in some newspaper published in the county where the property is situated, or if there is no newspaper published in the county then by posting notices of the sale in three (3) of the most public places in the county for ten (10) days previous to such sale. The person shall also send the notice of auction to the owner or owners of the property and to the holder or holders of a perfected security interest in the property as provided in subsection (c) of this section. The person who is about to render any service to the owner of an article of personal property by labor or skill employed for the protection, improvement, safekeeping or carriage thereof may take priority over a prior perfected security interest by, before commencing any such service, giving notice of the intention to render such service to any holder of a prior perfected security interest at least three (3) days before rendering such service. If the holder of the security interest does not notify said person, within three (3) days that it does not consent to the performance of such services, then the person rendering such service may proceed and the lien provided for herein shall attach to the property as a superior lien. The provisions of this section shall not apply to a motor vehicle subject to the provisions of sections 49-1809 through 49-1818, Idaho Code.
2. Livery or boarding or feed stable proprietors, and persons pasturing livestock of any kind, have a lien, dependent on possession, for their compensation in caring for, boarding, feeding or pasturing such livestock. If the liens as herein provided are not paid within sixty (60) days after the work is done, service rendered, or feed or pasturing supplied, the person in whose favor such special lien is created may proceed to sell the property at a licensed public livestock auction market, or if the lien is on equines, to sell the animals at a sale offered to the public, after giving ten (10) days’ notice to the owner or owners of the livestock and the state brand inspector. The information contained in such notice shall be verified and contain the following:
   1. The time, place and date of the licensed public livestock auction market, or in the case of equines, the time, place and date of the sale offered to the public;
   2. The name, address and phone number of the person claiming the lien;
   3. The name, address and phone number of the owner or owners of the livestock upon which the lien has been placed;
   4. The number, breed and current brand of the livestock upon which the lien has been placed; and
   5. A statement by the lienor that the requirements of this section have been met.
3. Notices provided in subsections (a) and (b) of this section shall be made by personal service or by certified or registered mail to the last known address of the owner or owners and any holder of a prior perfected security interest. The proceeds of the sale must be applied to the discharge of any prior perfected security interest, the lien created by this section and costs; the remainder, if any, must be paid over to the owner.

History.

R.S., § 3445; am. 1893, p. 67, § 1; reen. 1899, p. 181, § 1; reen. R.C. & C.L., § 3446; C.S., § 6412; I.C.A.,§ 44-705; am. 1982, ch. 262, § 1, p. 673; am. 1990, ch. 236, § 1, p. 672; am. 2012, ch. 341, § 1, p. 953; am. 2013, ch. 86, § 1, p. 208.

Cross References.

State brand inspector,§ 25-1103.

Amendments.

The 2012 amendment, by ch. 341, in subsection (b), substituted “public auction” for “licensed public livestock auction market” in the introductory paragraph and in paragraph (1).

The 2013 amendment, by ch. 86, in subsection (b), substituted “licensed public livestock auction market” for “public auction” twice, inserted “or if the lien is on equines, to sell the animals at a sale offered to the public” in the introductory language and added “or in the case of equines, the time, place and date of the sale offered to the public” in paragraph (1).

Compiler’s Notes.

S.L. 2012, Chapter 341 became law without the signature of the governor, effective July 1, 2012.

Effective Dates.

Section 2 of S.L. 1990, ch. 236 declared an emergency. Approved April 5, 1990.

Agister’s Lien.

Agister’s lien is strictly statutory, no such lien existing at common law. Gould v. Hill, 43 Idaho 93, 251 P. 167 (1926).

The only logical construction of this section is that its purpose is to protect all persons caring for and feeding livestock of others for reasonable and agreed compensation for such services. Gould v. Hill, 43 Idaho 93, 251 P. 167 (1926).

It makes no difference whether compensation is at certain rate per day or month or what basis is agreed upon, so long as payment is to be made under some standard of compensation. Gould v. Hill, 43 Idaho 93, 251 P. 167 (1926).

Act of the owner of cattle in giving agister check for amount claimed for pasturing of cattle, thereby inducing him to release his lien under this section and permit the removal of the cattle, terminated the contract between the parties, waived any breaches thereof, and reached an accord and satisfaction with the agister as to the amount due and upon stopping payment on the check was liable to the agister for the amount thereof. Copenhaver v. Lavin, 92 Idaho 681, 448 P.2d 774 (1968).

Application.

Party placed in charge of mining property consisting of both personal and real estate has a lien on the personal property for value of his services so long as he remains in possession. Idaho Comstock Min. & Milling Co. v. Lundstrum, 9 Idaho 257, 74 P. 975 (1903).

Where two or three tenants in common in possession of personal property employ another to care for and protect property, latter is entitled to a lien dependent on possession for his pay for his services in caring for the same, but is not entitled to lien on real property for the care and protection of either the real estate or the personal property. Williamson v. Moore, 10 Idaho 749, 80 P. 227 (1905).

This section has no application to property in the custody of the law. Beck v. Lavin, 15 Idaho 363, 97 P. 1028 (1908).

This section applies to cases where party takes possession of personal property, such, for example, as livestock, and agrees to graze, feed or pasture stock for a period of time and assumes exclusive care of and responsibility for property, and furnishes or procures feed or pasture therefor, whether it be from his private inclosure or on the public domain. Mendilie v. Snell, 22 Idaho 663, 127 P. 550 (1912).

Person furnishing gasoline and nonfreezing mixture for truck is not entitled to lien for value thereof under this section or§ 45-806. Neitzel v. Lawrence, 40 Idaho 26, 231 P. 423 (1924).

Attorney’s Fees.

Attorney’s fees are not recoverable under this section. Seafoam Mines Corp. v. Vaughn, 56 Idaho 342, 53 P.2d 1166 (1936). An improper inclusion of attorney’s fees in a claim and in making the sale does not invalidate a proceeding or make the lien claimant guilty of conversion. Seafoam Mines Corp. v. Vaughn, 56 Idaho 342, 53 P.2d 1166 (1936).

Constitutionality.

Where plaintiff has demonstrated no actual prejudice flowing from any perceived inadequacy in the notice mandated by this section, plaintiff could not argue that this section is constitutionally infirm because it denies due process; unless an individual has been adversely affected by a statute, he or she will not be heard to argue that the statute is constitutionally deficient because it lacks due process guarantees. Comstock Inv. Corp. v. Kaniksu Resort, 117 Idaho 990, 793 P.2d 222 (Ct. App. 1990).

Distinguished from UCC.

This section applies to a wide range of service providers, ranging from sophisticated businesses to shoe repair shops and laundries, and the legislature has not seen fit to impose upon such service providers the same burdens Article 9 places on secured parties under the UCC; neither has the legislature determined that service providers must, in effect, sell or buy property at full market value in order to collect the debts owed to them. Comstock Inv. Corp. v. Kaniksu Resort, 117 Idaho 990, 793 P.2d 222 (Ct. App. 1990).

Foreclosure of Agister’s Lien.

In action to foreclose agister’s lien there is no misjoinder of parties in including original owner and his vendee with one holding chattel mortgage on property. Gould v. Hill, 43 Idaho 93, 251 P. 167 (1926).

Agreement with agisters to continue feeding cattle and adding others to original number has effect of continuing lien, and action may be brought within six months from time cattle are taken. Smeed v. Stockmen’s Loan Co., 48 Idaho 643, 284 P. 559 (1930).

Liberal Construction.

This section will be liberally construed in favor of the workmen. Seafoam Mines Corp. v. Vaughn, 56 Idaho 342, 53 P.2d 1166 (1936).

Loss of Lien.

Lien is not lost where property is taken from possession of lienholder by force or fraud. Gould v. Hill, 43 Idaho 93, 251 P. 167 (1926).

As a general rule, common law or statutory lien dependent upon possession is waived or lost by lienholder voluntarily and unconditionally parting with possession or control of property to which it attaches; but not where there is intention to preserve lien and lienholder parts with possession only conditionally. Gould v. Hill, 43 Idaho 93, 251 P. 167 (1926).

Waiver of lien cannot be predicated on contract whereby parties agreed to sale of cattle and temporary disposition of money pending determination of their claims. Gould v. Hill, 43 Idaho 93, 251 P. 167 (1926).

Where property is delivered to person under single contract and part is voluntarily returned without payment, lienor will retain his lien on part remaining in his possession for whole amount due under contract. Gould v. Hill, 43 Idaho 93, 251 P. 167 (1926). Although the farmer argued that the family did not properly foreclose their lien because they did not follow the statutory procedure prescribed by subsection (b) for selling the cattle, the family did not sell the cattle, however, the county did; although a lien dependent on possession was lost if the holder of the lien voluntarily relinquished possession of the property or restored it to the owner, the family did not do so as it was the county, in the exercise of its police power, that took the cattle from the family’s dairy. Twin Falls County v. Coates, 139 Idaho 442, 80 P.3d 1043 (2003).

Possession.

Right to lien under this section depends wholly upon possession of property by claimant. Hill v. Twin Falls Salmon River Land & Water Co., 22 Idaho 274, 125 P. 204 (1912).

Possession necessary to entitle party to a lien must be such as to give party for time being the exclusive care, control and direction of property, which must be more than that of a mere servant for hire from day to day or month to month who is subject to direction and orders of the master. Mendilie v. Snell, 22 Idaho 663, 127 P. 550 (1912).

If, in connection with closing a sale, papers are put into broker’s hands incidentally, and only to have him examine mortgage and abstract, he is not entitled to a lien upon them for any commission which might be due from plaintiff to him in negotiating sale of said property. Smith v. Bergstresser, 26 Idaho 322, 143 P. 402 (1914).

Premature Foreclosure.

A lien is not prematurely foreclosed because sixty days had not elapsed between the time the work was done, or services rendered, and the foreclosure, nor because a watchman remained in charge of the property after making demand for payment. Seafoam Mines Corp. v. Vaughn, 56 Idaho 342, 53 P.2d 1166 (1936).

Priority of Agister’s Lien.

Agister’s lien entered into prior to execution of chattel mortgage on property involved is prior to and superior to lien of such chattel mortgage. Gould v. Hill, 43 Idaho 93, 251 P. 167 (1926).

Sale of Property.

This section contains no requirement that a lienholder make a payment based on the property’s full market value; it allows a lienholder to conduct a sale at which it may bid the amount claimed for services rendered, plus sale costs; if the property is sold for a sum greater than the debt (including costs) secured by the lien, the lienholder must tender the excess proceeds to the property owner. Comstock Inv. Corp. v. Kaniksu Resort, 117 Idaho 990, 793 P.2d 222 (Ct. App. 1990).

State Action.

The lien sale procedure authorized by this section is a self-help remedy, and such a remedy will not constitute state action. Comstock Inv. Corp. v. Kaniksu Resort, 117 Idaho 990, 793 P.2d 222 (Ct. App. 1990).

Subsequent Tort Action.

It would be palpably unfair, and would undermine the remedial purpose of lien statutes, if a debtor could stand silent, allowing a sale to occur without objection, and then obtain tort damages in a subsequent lawsuit if the debt were ultimately found to have an offset; the law does not, and should not, countenance such a retroactive tort. Comstock Inv. Corp. v. Kaniksu Resort, 117 Idaho 990, 793 P.2d 222 (Ct. App. 1990). Where a boatowner, having been notified of a debt regarding moorage services and of an impending sale of his boat to satisfy the debt, could have asserted its offset before the sale occurred, but instead, elected to remain silent, in this circumstance the sale of the boat cannot be deemed a conversion. Comstock Inv. Corp. v. Kaniksu Resort, 117 Idaho 990, 793 P.2d 222 (Ct. App. 1990).

Watchmen.

A watchman of property has sufficient possession to entitle him to assert the lien provided for by this section. Seafoam Mines Corp. v. Vaughn, 56 Idaho 342, 53 P.2d 1166 (1936).

A watchman in charge of property who is entitled to a lien may claim the benefits thereof where he is discharged and remains on the property up to the time of the sale. Seafoam Mines Corp. v. Vaughn, 56 Idaho 342, 53 P.2d 1166 (1936).

ALR.

§ 45-806. Lien for making, altering, or repairing personal property.

Any person, firm or corporation, who makes, alters or repairs any article of personal property, at the request of the owner or person in legal possession thereof, has a lien, which said lien shall be superior and prior to any security interest in the same for his reasonable charges for work done and materials furnished, and may retain possession of the same until the charges are paid. If not paid within two (2) months after the work is done, the person, firm or corporation may proceed to sell the property at public auction, by giving ten (10) days’ public notice of the sale by advertising in some newspaper published in the county in which the work was done; or, if there be no newspaper published in the county, then by posting up notices of the sale in three (3) public places in the town where the work was done, for ten (10) days previous to the sale. The proceeds of the sale must be applied to the discharge of the lien and the cost of keeping and selling the property; the remainder, if any, must be paid over to the owner thereof. Provided that the said person, firm or corporation who is about to make, alter or repair the said property, in order to derive the benefits of this section, must, before commencing said making, altering or repairing, give notice of the intention to so make, alter or repair said property, by registered mail, to any holder of a security interest which is of record in the county where said property is located, or in the office of the secretary of state, and, if a motor vehicle, to any holder of a security interest which may appear on the certificate of title of said vehicle, at least three (3) days before commencing said making, altering or repairing and if notice in writing within said three (3) days be not given by such holder of a security interest notifying said firm or corporation not to perform said services then the said making, altering or repairing may proceed and the prior lien provided for herein attaches to said property.

History.

R.S., § 3446; reen. R.C. & C.L., § 3447; C.S., § 6413; I.C.A.,§ 44-706; am. 1935, ch. 87, § 1, p. 152; am. 1967, ch. 272, § 12, p. 745; am. 1995, ch. 157, § 1, p. 635.

Cross References.

Secretary of state,§ 67-901 et seq.

Secured transactions,§ 28-9-101 et seq.

Effective Dates.

Section 32 of S.L. 1967, ch. 272 provided that the act should take effect at midnight on December 31, 1967, simultaneously with the Uniform Commercial Code.

Bankruptcy.

Where defendant retained possession of debtor’s car after debtor failed to pay for work performed, defendant’s refusal to return car after debtor filed for bankruptcy did not violate bankruptcy law, because the creditor’s statutory lien was dependent on possession. Boggan v. Hoff Ford, Inc (In re Boggan), 1999 Bankr. LEXIS 2131 (Bankr. D. Idaho Nov. 30, 1999), aff’d, 251 B.R. 95 (B.A.P. 9th Cir. 2000).

Bona Fide Purchaser.

Purchaser of tractor at lien foreclosure sale for amount of minimum required bid was bona fide purchaser, even though owner’s representative at sale attempted to reach agreement with lien holders at sale and failed; fact that purchaser knew of owner’s claims on tractor did not prevent purchaser from becoming a bona fide purchaser in good faith, as this knowledge was not the type which would interfere with purchaser’s good faith act of purchase. Jahnke v. Mesa Equip., Inc., 128 Idaho 562, 916 P.2d 1287 (Ct. App. 1996).

Foreclosure Sale.

Where lien holder’s right to collect the full amount of the debt due on repaired tractor by way of a lien foreclosure sale might have been subject to a timely challenge, tractor owner’s failure to present challenge until after completed sale and transfer of property to bona fide purchaser precluded such a claim. Jahnke v. Mesa Equip., Inc., 128 Idaho 562, 916 P.2d 1287 (Ct. App. 1996).

Foreclosure sale of tractor, held by lien holder, which was conducted in one of the two counties where repair work was performed on tractor was proper, where notice of sale was advertised in a newspaper published in one of the counties where repair work was done, the owner had actual notice of the sale, appeared through his representative and attempted to purchase property, and where owner failed to show any prejudice to him based on location of sale. Jahnke v. Mesa Equip., Inc., 128 Idaho 562, 916 P.2d 1287 (Ct. App. 1996).

Furnishing Fuel.

Person furnishing gasoline and nonfreezing mixture for truck is not entitled to lien under this section or§ 45-805. Neitzel v. Lawrence, 40 Idaho 26, 231 P. 423 (1924).

Lien.

Mechanic’s lien was not dependent upon the lien claimant’s continued possession of tractor, where repair shop sent tractor to another dealer for required work on engine block; for purposes of transaction, dealer who did work on engine block was subcontractor of repair shop and its possession of tractor was properly imputed to repair shop. Jahnke v. Mesa Equip., Inc., 128 Idaho 562, 916 P.2d 1287 (Ct. App. 1996).

Lien at Other Than Owner’s Request.

The notice of intention to repair required by this section to be given to the holder of a security interest in the article to be repaired need not be given to the owner of the article when it is presented for repair by someone other than the owner in lawful possession. American Mach. Co. v. Fitzpatrick, 92 Idaho 416, 443 P.2d 1013 (1968).

Lien at Owner’s Request.

In order to give lien, repairs and alterations on personal property must be made at request of owner. Neitzel v. Lawrence, 40 Idaho 26, 231 P. 423 (1924).

ALR.

Lien for storage of motor vehicles. 85 A.L.R.3d 199.

Lien for towing or storage, ordered by public officer, of motor vehicle. 85 A.L.R.3d 199.

Loss of garageman’s lien on repaired vehicle by owner’s use of vehicle. 74 A.L.R.4th 90.

Application.

This section is limited in its application to property taken by banker in the usual course of banking business and does not operate to afford lien on stock of merchandise transferred to a bank in such manner as to constitute preference under bankruptcy law. In re Gesas, 146 F. 734 (9th Cir. 1906).

Deposits, Application of.

As against depositor, bank may at any time before actual payment to him apply deposit to payment of his matured debts or obligations held by bank. Holloway v. First Nat’l Bank, 45 Idaho 746, 265 P. 699 (1928).

Under this section, a bank may apply the deposit of an indorser without resorting to mortgage security securing the note. Jeppesen v. Rexburg State Bank, 57 Idaho 94, 62 P.2d 1369 (1936).

A credit union’s exercise of its “self-help” right of set-off contained in the pledge agreement with the plaintiff and her husband did not require any court action to accomplish, and accordingly the statute of limitations was not implicated when the credit union set off funds deposited with it against defaulted loans of the husband. Smith v. Idaho State Univ. Fed. Credit Union, 114 Idaho 680, 760 P.2d 19 (1988).

Lien Denied.

Bank lost possession of funds when it turned them over to the trustee, and, having done so, it was obligated to take prompt action, including filing a motion for relief from the automatic stay and requesting adequate protection, to preserve its possessory lien rights, but it failed to do so. Because it lacked possession of the funds, and it had unnecessarily delayed asserting its rights, the bank could not seek a banker’s lien upon the funds the trustee held. In re Lifestyle Furnishings, LLC, 418 B.R. 382 (Bankr. D. Idaho 2009).

Setoff.

Cited

When a bank applies customer’s funds to a debt owed by him to bank, it is acting pursuant to its right of setoff rather than exercising a banker’s lien. Meyer v. Idaho First Nat’l Bank, 96 Idaho 208, 525 P.2d 990 (1974). Cited First Interstate Bank v. Gill, 108 Idaho 576, 701 P.2d 196 (1985).

Cross References.

Cooperative corporation defined,§ 30-30-103.

Amendments.

The 2010 amendment, by ch. 41, substituted “five (5) business days” for “twenty-four (24) hours” in subsection (2)(d).

Cross References.

Secretary of state,§ 67-901 et seq.

Cross References.

Foreclosure of mortgages,§ 6-101 et seq.

Mortgage not a conveyance,§ 6-104.

Mortgage to secure performance of future obligations,§ 45-108.

Trust deeds,§ 45-1501 et seq.

Deed Absolute as Mortgage.

Deed absolute on its face is a mortgage if it is a transfer, other than a trust, made only as security for the performance of another act. Hannah v. Vensel, 19 Idaho 796, 116 P. 115 (1911); Capital Lumber Co. v. Saunders, 26 Idaho 408, 143 P. 1178 (1914).

Enforceability.

As between the parties, the chattel mortgages are enforceable and will be given full weight, even though ineffective as to third persons because of lack of notice. Jordan v. Securities Credit Corp., 79 Idaho 284, 314 P.2d 967 (1957).

Form of Indebtedness.

Debt for which mortgage is given may consist in the faithful performance of a duty resting upon mortgagor, if it is capable of being reduced to money value. Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108 (1918), overruled on other grounds, David Steed & Assocs. v. Young, 115 Idaho 247, 766 P.2d 717 (1988).

Form of Mortgage.

Whatever the form of agreement may be, if it in fact amounts to a mortgage it will be so considered. Payette-Boise Water Users’ Ass’n v. Fairchild, 35 Idaho 97, 205 P. 258 (1922).

Subscription contract for shares in water users’ association, whereby it is agreed that payments on authorized assessments shall be secured by lien on shares and lands of subscriber, to be enforced by foreclosure and sale as in case of mortgages, constitutes mortgage within definition of this section. Payette-Boise Water Users’ Ass’n v. Fairchild, 35 Idaho 97, 205 P. 258 (1922).

Where there is no change of possession nor conveyance of property but a simple hypothecation of described property, for payment of debt, transaction is mortgage within meaning of this section. Payette-Boise Water Users’ Ass’n v. Fairchild, 35 Idaho 97, 205 P. 258 (1922).

The conclusion reached by the trial court that securities credit corporation was a general creditor was correct, acknowledgments to the chattel mortgages being void and the instruments not meeting the requirements by being properly acknowledged and lawfully filed under the chattel mortgage section. A judgment having been entered for the disposition for the property prevents the defendant from now availing himself of the statute by correcting the errors in mortgages. Jordan v. Securities Credit Corp., 79 Idaho 284, 314 P.2d 967 (1957).

Indebtedness as Test.

The test to determine whether an instrument is a mortgage or absolute conveyance is whether, at the time of the execution thereof, there was a debt owing from the giver of such instrument to the grantee or vendee therein, and whether such debt existed after the execution of the instrument. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933).

Issues for Jury.

Where the question was whether a bill of sale of property and a conditional sale contract with respect to the same property were a chattel mortgage or an absolute conveyance from one to another, the evidence was sufficient to require the submission of the issues to a jury. Deichert v. Euerby, 54 Idaho 14, 27 P.2d 981 (1933).

Jury Question.

The question of whether a bill of sale of property and a conditional sale contract with respect thereto are to be construed as an absolute conveyance from one party to the other, and a contract to reconvey from the latter to the former, or whether they constitute a mortgage, is, in an action at law where the evidence is conflicting, for the jury. Deichert v. Euerby, 54 Idaho 14, 27 P.2d 981 (1933).

Law as Part of Mortgage.

Lien of Mortgage Survives How Long.

It is well settled that the law existing when a mortgage is made enters into and becomes a part of the contract and a note and mortgage will be construed as one contract. Steward v. Nelson, 54 Idaho 437, 32 P.2d 843 (1934). Lien of Mortgage Survives How Long.

The life of a mortgage does not cease to exist so long as the notes secured by it are actionable, for the reason that the mortgage is an incident to the debt. So long as the note secured by a mortgage is kept alive, then it is actionable, and a note is kept alive, consequently either by the obligee signing an agreement promising payment, or making payment on principal or interest, and the mortgage lien will continue and remain unimpaired for five years thereafter. Steward v. Nelson, 54 Idaho 437, 32 P.2d 843 (1934).

Meaning of Mortgage.

A “mortgage” is a contract by which specific property is hypothecated for performance of an act without necessity of change of possession. Eastern Idaho Loan & Trust Co. v. Blomberg, 62 Idaho 497, 113 P.2d 406 (1941).

Payment of Taxes and Water Assessments.

Under provision in a mortgage that, if the mortgagor failed to pay taxes and water assessments, mortgagee could pay the same and such payments would become a part of the mortgage debt, such provision is upheld, and mortgagee is entitled to have payments made by him for taxes and water assessments become a part of the mortgage debt and secured accordingly. Union Cent. Life Ins. Co. v. Nielson, 62 Idaho 483, 114 P.2d 252 (1941).

Security Instrument.

A security instrument, however it is called, is a mortgage whenever real property is encumbered as security for a debt or liability. Rush v. Anestos, 104 Idaho 630, 661 P.2d 1229 (1983).

Sufficiency of Evidence.

The facts were sufficient to warrant a holding that a deed and contract given the same time should be construed together as one transaction, and not as separate and distinct transactions, and that they constituted a mortgage. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933).

ALR.

Excessiveness or adequacy of attorneys’ fees in matters involving real estate — Modern cases. 10 A.L.R.5th 448.

Cross References.

Conveyance of real property,§ 55-601 et seq.

Application.

This section applies to all mortgages whether real or chattel. Willows v. Rosenstien, 5 Idaho 305, 48 P. 1067 (1897); Keane v. Kibble, 28 Idaho 274, 154 P. 972 (1915).

Contemporaneous agreement that mortgage shall operate as continuing security for floating balance of indebtedness not exceeding amount of mortgage is not extension of mortgage within meaning of this section. Weiser Loan & Trust Co. v. Comerford, 41 Idaho 172, 238 P. 515 (1925).

Estoppel.

Where stranger to mortgage purchases mortgaged property and agrees that mortgage shall stand as security for purchase price, provisions of this section have no application, and purchaser is estopped to deny validity of the agreement although it is not executed in conformity to this section. Burke Land & Live-Stock Co. v. Wells Fargo & Co., 7 Idaho 42, 60 P. 87 (1900).

Formalities of Document.

Mortgage which a business gave to a husband and wife to secure debts the business allegedly owed the husband and wife was not valid under§ 55-601 and this section, because the husband and wife did not include their complete mailing address on the instrument, or incorporate their address by reference to some other document. Hopkins v. Thomason Farms, Inc. (In re Thomason), Case No. 03-42400, 2009 Bankr. LEXIS 1769 (Bankr. D. Idaho June 24, 2009). A property description in a real estate sales contract that consisted solely of a physical address did not satisfy the statute of frauds. In re McMurdie, 448 B.R. 826 (Bankr. D. Idaho 2010).

Oral Agreement Insufficient.

In a mortgagor’s action against a mortgagee to recover damages for alleged breach of an agreement “to dispose of foreclosure proceedings” of a second mortgage, allegation of an oral agreement to reinstate foreclosed second mortgage as first mortgage on property was purely “conclusion” in view of the statute expressly providing that a mortgage can be created, renewed or extended only by writing, executed with formalities required in the case of a grant or conveyance of real estate. Toston v. Utah Mtg. Loan Corp., 115 F.2d 560 (9th Cir. 1940).

Prohibited Agreements.

Agreement to hold a mortgage for individual indebtedness when said mortgage has been included in a subsequent copartnership mortgage which has been satisfied is contrary to provisions of this section. Willows v. Rosenstien, 5 Idaho 305, 48 P. 1067 (1897).

Lien of mortgage cannot be extended beyond its terms so as to secure a debt not named therein, or to hypothecate property not covered by mortgage, except by a compliance with the provisions of this section; but this does not preclude mortgagor from waiving statute of limitations as to mortgage debt by indorsing an acknowledgment to pay debt on note and mortgage. Moulton v. Williams, 6 Idaho 424, 55 P. 1019 (1899).

Parties to usurious contract secured by trust deed cannot remove usurious character of transaction by an agreement between themselves, and thus make trust deed a lien for interest and costs as against junior mortgagee, who is not a party to the agreement, and whose rights will be prejudiced thereby. Madsen v. Whitman, 8 Idaho 762, 71 P. 152 (1902).

Subordination Agreement.

The subordination agreement could not be elevated to the position of a mortgage or deed of trust where it lacked the formalities of such required under this section. Old Stone Capital Corp. v. John Hoene Implement Corp., 647 F. Supp. 916 (D. Idaho 1986).

ALR.

§ 45-903. Lien of mortgage is special.

The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of possession.

History.

R.S., § 3352; reen. R. C. & C.L., § 3390; C.S., § 6357; I.C.A.,§ 44-803.

Payments to Prevent Foreclosure.

Since the second deed of trust held by the seller of house was functionally equivalent to a mortgage, the holders’ lien was special; accordingly,§ 45-105 entitled them to include payments they made to prevent foreclosure of the first deed of trust as part of the mortgage indebtedness created by their junior encumbrance. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984).

Rights of Junior Mortgagee.

Junior mortgagee may raise question of usury in respect to first mortgage contract in the same manner as owner of property. United States Bldg. & Loan Ass’n v. Lanzarotti, 47 Idaho 287, 274 P. 630 (1929).

Effective Dates.

Section 32 of S.L. 1967, ch. 272 provided that the act should take effect at midnight on December 31, 1967, simultaneously with the Uniform Commercial Code.

Cancellation of Defeasance.

Defeasance may be voluntarily surrendered or canceled, and such action will render mortgage, whether it was in form a mortgage, or whether it was in form a conveyance absolute with defeasance provable by parol, an absolute deed and conveyance. Smith v. Schultz, 23 Idaho 144, 129 P. 640 (1912).

Complaint, Sufficiency.

Equity of redemption may be purchased from mortgagor, and debt thereby be extinguished, and transfer become absolute. Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90 (1916). Complaint, Sufficiency.

The complaint in the cited case held sufficient as against a general demurrer, whereby it was sought to have the transaction declared a mortgage. Fond v. McCreery, 55 Idaho 144, 39 P.2d 766 (1934).

Construction.

Provision of this section is rule of property and is recognized both at law and in equity. Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928).

Deed Absolute on Face.

Deed absolute on its face cannot be held to be mortgage unless there is debt to be secured thereby, since mortgage is defeasible conveyance made simply to secure debt. Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90 (1916); Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928).

On issue as to whether deed absolute in form was intended as mortgage, test is whether there was subsisting debt after conveyance. Clinton v. Utah Constr. Co., 40 Idaho 659, 237 P. 427 (1925); Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928).

Fee simple title is presumed to pass by grant of real property, and, independent of proof, presumption arises that instrument is what it purports on its face to be — an absolute conveyance. Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928).

Rule is well recognized and established that deed absolute in form may be shown to have been intended as mortgage. Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928); Investors Mtg. Secur. Co. v. Hamilton, 51 Idaho 113, 4 P.2d 347 (1931).

Where the grantee in deeds had advanced money to the grantor and, in some transactions, received promissory notes for the amounts advanced, such deeds were properly found to be mortgages. Gem-Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966).

Determination of Question.

To justify trial court in determining that deed which purports to convey land absolutely in fee simple is mortgage, evidence must be clear, satisfactory and convincing. It must appear to court beyond reasonable controversy that it was the intention of parties that the deed should be a mortgage. Clinton v. Utah Constr. Co., 40 Idaho 659, 237 P. 427 (1925); Drennan v. Lavender, 41 Idaho 263, 238 P. 532 (1925); Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928).

Where evidence on question whether bill of sale with agreement to repurchase constitutes mortgage or pledge, determination is for jury. Schleiff v. McDonald, 41 Idaho 50, 237 P. 1108 (1925).

Decision of trial court upon conflicting or contradictory evidence is not open to review in appellate court. Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928).

Parol evidence is admissible to show whether warranty deed with option to purchase back was conveyance or mortgage. Investors Mtg. Secur. Co. v. Hamilton, 51 Idaho 113, 4 P.2d 347 (1931).

Controlling question is whether or not debt is paid on execution and delivery of deed. Investors Mtg. Secur. Co. v. Hamilton, 51 Idaho 113, 4 P.2d 347 (1931).

Equitable Mortgage.

A warranty deed along with an agreement to reconvey the property in the future was an outright conveyance rather than a mortgage, where the transaction did not secure any debt, defendants’ predecessors could reacquire the property by paying certain sums to plaintiffs’ predecessors, but they were not obligated to make those payments, and amount paid by plaintiffs’ predecessors was the fair market value of the real property at the time of the transaction. Hogg v. Wolske, 142 Idaho 549, 130 P.3d 1087 (2006). Equitable Mortgage.

Where deed, absolute on its face, is taken to real property but is, in effect, an equitable mortgage, and plaintiff prays to have the same so declared, and no application is made to foreclose said mortgage, proper form of decree is that plaintiff be allowed to redeem upon the payment of the sum found due within a reasonable time to be fixed by the decree, and that upon such payment the mortgage shall be adjudged to be satisfied, and that in default of such payment the title shall be quieted in defendant. Machold v. Farnan, 20 Idaho 80, 117 P. 408 (1911).

Estoppel.

Where plaintiff sued for conversion of his automobile, where the transaction grew out of a bill of sale from the plaintiff to the defendant and a conditional sales contract, executed by the plaintiff to the defendant, as on purchase, and where plaintiff did not tender the amount of his indebtedness or offer to have it deducted from the amount claimed, he was not estopped from urging that the transaction constituted a chattel mortgage securing an indebtedness. Deichert v. Euerby, 54 Idaho 14, 27 P.2d 981 (1933).

Foreclosure of Mortgage.

Where the transaction amounted to a mortgage, it must be foreclosed to satisfy the debt secured thereby. Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426 (1937).

Indebtedness as Test.

The test to determine whether an instrument is a mortgage or absolute conveyance is whether, at the time of the execution thereof, there was a debt owing from the giver of such instrument to the grantee or vendee therein, and whether such debt existed after the execution of the instrument. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933).

Before an instrument, purporting to be an absolute conveyance on its face, can be construed as a mortgage or security, it is indispensable that there be an existing indebtedness. Fond v. McCreery, 55 Idaho 144, 39 P.2d 766 (1934).

Jury Question.

The question of whether a bill of sale of property and a conditional sale contract with respect thereto are to be construed as an absolute conveyance from one party to another, and a contract to reconvey from the latter to the former, or whether they constitute a mortgage, is, in an action at law where the evidence is conflicting, for the jury. Deichert v. Euerby, 54 Idaho 14, 27 P.2d 981 (1933).

Mortgage, Evidence Showing.

Pledge of Lease.

The facts were sufficient to warrant a holding that a deed and contract given at the same time should be construed together as one transaction, and not as a separate and distinct transaction, and that they constituted a mortgage. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933); Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426 (1937). Pledge of Lease.

Where a lease has been recorded as a chattel mortgage, a delivery of a copy thereof to a party having a second mortgage on a portion of the leased property constitutes a sufficient delivery of the lease as to amount to a valid pledge thereof. Gem State Lumber Co. v. Galion Irrigated Land Co., 55 Idaho 314, 41 P.2d 620 (1935).

Sale of Mortgaged Property.

If mortgagor in arrears on chattel mortgage covering harvester transfers harvester by bill of sale to party who advances money to pay off mortgage, and mortgagor agrees to pay back amount advanced, such transaction does not constitute a sale of mortgaged property. State v. Snyder, 71 Idaho 454, 233 P.2d 802 (1951).

Security.

In the absence of an intent that an instrument should be treated as security only for debt, it will not be held to be a mortgage. Northwestern & Pac. Hypotheekbank v. Nord, 56 Idaho 86, 50 P.2d 4 (1935).

A security instrument, however it is called, is a mortgage whenever real property is encumbered as security for a debt or liability. Rush v. Anestos, 104 Idaho 630, 661 P.2d 1229 (1983).

Sufficiency of Evidence.

In order to establish a transaction as one constituting a mortgage, the evidence must be clearly convincing and satisfactory. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933).

The question is whether a bill of sale of property and a conditional sale contract with respect to the same property are a chattel mortgage or an absolute conveyance from one to another, with a contract to reconvey, and the evidence was sufficient to require the submission of the issues to a jury. Deichert v. Euerby, 54 Idaho 14, 27 P.2d 981 (1933).

Trust Defined.

Transfer in trust mentioned by this section is one which creates a trust and absolutely conveys title from grantor, and not a deed of trust which hypothecates property for payment of the debt. Brown v. Bryan, 6 Idaho 1, 51 P. 995 (1896).

What Constitutes Mortgage.

Deed absolute on its face and a separate agreement bearing same date as deed, for a reconveyance of the same tract of land to grantor upon payment of the consideration named in the deed, by specified time, constitute together a mortgage. Kelly v. Leachman, 3 Idaho 392, 3 Idaho 629, 29 P. 849, 33 P. 44 (1892); Wilson v. Thompson, 4 Idaho 678, 43 P. 557 (1896).

Where deed, absolute on its face, has been executed to secure payment of a debt, and it is clearly and satisfactorily established that instrument was intended only as security and that it is therefore only a mortgage, title to property remained in grantor. Hannah v. Vensel, 19 Idaho 796, 116 P. 115 (1911).

Where instrument in writing in the form of deed of conveyance is executed and delivered as security for a debt, such instrument becomes a mortgage and not a deed, notwithstanding form of instrument. Bergen v. Johnson, 21 Idaho 619, 123 P. 484 (1912). Warranty deeds, executed and delivered by insolvent debtor to corporation, to which he was largely indebted at the time, to secure debt, held, in effect, mortgages. Capital Lumber Co. v. Saunders, 26 Idaho 408, 143 P. 1178 (1914).

Mortgage may be created by transfer of certain material to L. under a written contract providing that L. shall sign a note as security for B., who shall thereupon buy such material in the name of and for the sole use and benefit of L., and that, upon payment of the note, L. shall deliver and sell material to a third party, such transfer being for security only. Larsen v. Roberts, 32 Idaho 587, 187 P. 941 (1919).

Deed cannot be declared a mortgage unless there is a debt personal in its nature and enforceable against parties independent of security. Clinton v. Utah Constr. Co., 40 Idaho 659, 237 P. 427 (1925).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Conclusion Not a Statement of Fact.

A statement in an agreement by one of the parties that he had no interest in the realty covered by the agreement constitutes a mere conclusion and is not a statement of fact. Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426 (1937).

Deed Absolute as Mortgage.

Warranty deeds executed and delivered by insolvent debtor to corporation to which he was largely indebted at the time, to secure the debt were held, in effect, mortgages. Capital Lumber Co. v. Saunders, 26 Idaho 408, 143 P. 1178 (1914).

Whether or not deed absolute in form is mortgage is mixed question of law and fact to be determined from all evidence, written or parol; and, in determining it, all facts and circumstances attending transaction should be considered. Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928). Rule applies whether or not deed is warranty deed and whether deed is accompanied by condition or matter of defeasance expressed in deed, contained in separate instrument or existing merely in parol. Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928).

In determining whether instrument is conveyance or mortgage, determining question is whether or not debt is paid on execution and delivery of deed. Investors Mtg. Secur. Co. v. Hamilton, 51 Idaho 113, 4 P.2d 347 (1931).

Under this section, parol evidence was admissible to show that purported deeds were in fact mortgages and so intended by the parties. Gem-Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966).

Evidence.

Parol evidence is admissible to show that deed absolute on its face is, in fact, a mortgage. Thompson v. Burns, 15 Idaho 572, 99 P. 111 (1908); Investors Mtg. Secur. Co. v. Hamilton, 51 Idaho 113, 4 P.2d 347 (1931); Smith v. Swendsen, 57 Idaho 715, 69 P.2d 131 (1937).

In the instant case, the facts were held sufficient to warrant a holding that a deed and contract given at the same time should be construed together as one transaction, and not as a separate and distinct transaction, and that they constituted a mortgage. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933); Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426 (1937).

The exclusion of evidence of the intention of the parties that a deed was intended as a mortgage was not prejudicial in view of evidence that was admitted of indebtedness of the grantors to the grantee before and after the conveyance, of lack of monetary payment by the grantee to the grantors, and the grantee’s cancellation of a note and mortgage at the time of the conveyance without extinguishment of the debt. Credit Bureau v. Sleight, 92 Idaho 210, 440 P.2d 143 (1968).

An option, when exercised, is a contract for the conveyance of property; however, a conveyance which appears absolute in form may be shown by extrinsic evidence actually to be security for a debt. The proof must be by clear and convincing evidence. McGill v. Lester, 108 Idaho 561, 700 P.2d 964 (Ct. App. 1985).

Where the grantee denied that she promised to convey the property back to the original owner, but conceded being informed of his previous ownership and that the third party, who conveyed the deed to her, had agreed to reconvey it to the original owner, the grantee could not be said to have taken the deed “without notice,” and therefore did not come within the exception of this section. Parol evidence on the question of defeasance was admissible. Kreiensieck v. Cook, 108 Idaho 657, 701 P.2d 277 (Ct. App. 1985).

— Form of Instrument.

Upon a proper showing, the form of an instrument yields to its underlying purpose: a deed may be shown actually to be a mortgage; the apparent conveyance of an ownership interest under an installment sale contract may be shown actually to be the creation of a security interest; and an option may be shown to merely secure a debt. McGill v. Lester, 108 Idaho 561, 700 P.2d 964 (Ct. App. 1985).

— Purpose of Instrument.

Foreclosure.

The criteria for evaluating whether the purpose of an instrument is the creation of a security interest are: (a) the existence of a debt to be secured; (b) survival of the debt after execution of the instrument in question; (c) any previous negotiations of parties; (d) the inadequacy of consideration for an outright conveyance; (e) the financial condition of the purported grantor; and (f) the intention of the parties. McGill v. Lester, 108 Idaho 561, 700 P.2d 964 (Ct. App. 1985). Foreclosure.

Where a transaction amounts to a mortgage, it must be foreclosed to satisfy the debt secured thereby. Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426 (1937).

Indebtedness as Test.

Deed absolute on its face cannot be held to be a mortgage unless there is a debt to be secured thereby, and evidence must be clear that it was not a sale. Bergen v. Johnson, 21 Idaho 619, 123 P. 484 (1912); Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90 (1916).

The test to determine whether an instrument is a mortgage or absolute conveyance is whether, at the time of the execution thereof, there was a debt owing from the giver of such instrument to the grantee or vendee therein, and whether such debt existed after the execution of the instrument. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933).

Before an instrument, purporting to be an absolute conveyance on its face, can be construed as a mortgage or security, it is indispensable that there be an existing indebtedness. Fond v. McCreery, 55 Idaho 144, 39 P.2d 766 (1934).

Innocent Third Parties.

Proof cannot be made against innocent purchasers and encumbrancers that deed absolute on its face was intended as a mortgage, unless that fact appears from the terms of the instrument itself. Hannah v. Vensel, 19 Idaho 796, 116 P. 115 (1911).

Intention of Parties.

Whether instrument sued upon is a conditional sale note or a chattel mortgage, and whether or not respondent has mistaken his remedy, are questions which are dependent upon agreement of parties at time transaction was entered into and must be decided from all facts and circumstances which will tend to show intent of parties. Keane v. Kibble, 28 Idaho 274, 154 P. 972 (1915).

Where written instruments are uncertain or ambiguous, parol evidence may be admitted to show the true intent of the parties. Smith v. Swendsen, 57 Idaho 715, 69 P.2d 131 (1937).

Questions of Fact.

Where question is whether a bill of sale of property and a conditional sale contract with respect to the same property, are a chattel mortgage or an absolute conveyance from one to another, with a contract to reconvey, the evidence was sufficient to require the submission of the issues to a jury. Deichert v. Euerby, 54 Idaho 14, 27 P.2d 981 (1933).

Sale of Mortgaged Property.

Cited

If mortgagor in arrears on chattel mortgage covering harvester transfers harvester by bill of sale to party who advances money to pay off mortgage, and mortgagor agrees to pay back amount advanced, such transaction does not constitute a sale of mortgaged property. State v. Snyder, 71 Idaho 454, 233 P.2d 802 (1951). Cited In re Gould, 78 Bankr. 590 (D. Idaho 1987); Hogg v. Wolske, 142 Idaho 549, 130 P.3d 1087 (2006).

Effect of Mortgage Lien.

Mortgage, or any contract or instrument made only as security for payment of a debt, merely creates a lien on property therein described and leaves legal title in mortgagor or grantor, which title can only be divested by judicial sale in a suit or action under and in conformity with the statute. Hannah v. Vensel, 19 Idaho 796, 116 P. 115 (1911).

Chattel mortgage conveys no title to mortgagee, but gives mere lien on property mortgaged, as security. Forbush v. San Diego Fruit & Produce Co., 46 Idaho 231, 266 P. 659 (1928).

Errors in Mortgages.

The conclusion reached by the trial court that Securities Credit Corporation was a general creditor was correct, acknowledgments to the chattel mortgages being void and the instruments not meeting the requirements by being properly acknowledged and lawfully filed under the chattel mortgage section. A judgment having been entered for the disposition for the property prevents the defendant from now availing himself of the statute by correcting the errors in mortgages. Jordan v. Securities Credit Corp., 79 Idaho 284, 314 P.2d 967 (1957).

Law as Part of Mortgage.

It is well settled that the law existing when a mortgage is made enters into and becomes a part of the contract. Steward v. Nelson, 54 Idaho 437, 32 P.2d 843 (1934).

Life of Mortgage Lien.

The life of a mortgage does not cease to exist so long as the notes secured by it are actionable, for the reason that the mortgage is an incident to the debt. So long as the note secured by a mortgage is kept alive, then it is actionable, and a note is kept alive either by the obligee signing an agreement promising payment, or making payment on principal or interest, and the mortgage lien will continue and remain unimpaired for five years thereafter. Steward v. Nelson, 54 Idaho 437, 32 P.2d 843 (1934).

Third Parties.

As between the parties, the chattel mortgages are enforceable and will be given full weight even though ineffective as to third persons because of lack of notice. Jordan v. Securities Credit Corp., 79 Idaho 284, 314 P.2d 967 (1957).

Application.

Where mortgage of a steam-actuated pumping plant, permanently affixed to mining ground, and appurtenances, is held to cover land upon which plant is located and which is necessary to its convenient and proper use, fact that mortgagors did not acquire legal title to such land until after mortgage was given does not prevent application of mortgage thereto. Muckle v. Hill, 32 Idaho 661, 187 P. 943 (1920).

Water right not in esse at time of execution of conveyance and hence not mentioned therein, but which was subsequently acquired, becomes appurtenant to land and will pass with title acquired under mortgage foreclosure. Molony v. Davis, 40 Idaho 443, 233 P. 1000 (1925).

This section has been held to apply to title acquired under homestead laws, although title was in United States when mortgage was given. Bashore v. Adolph, 41 Idaho 84, 238 P. 534 (1925).

Any title passing to defendant prior to decree in foreclosure inures to benefit of mortgagee foreclosing under this section. State v. Gladish, 48 Idaho 711, 284 P. 1034 (1930).

Title Acquired Through Subsequent Quitclaim Deed.

Where owner mortgages realty, and subsequently acquires a better title to the property purportedly mortgaged, the title subsequently acquired inures to the benefit of the mortgagee. Booth v. Shepherd, 63 Idaho 523, 123 P.2d 422 (1942).

Effective Dates.

Section 32 of S.L. 1967, chapter 272, provided that the act took effect at midnight on December 31, 1967, simultaneously with the Uniform Commercial Code.

Unrecorded Lien of Assignee.

Assignee not recording assignment lost lien as against subsequent purchaser of property who purchased without notice of assignee’s claim and in reliance on recorded release by mortgagee. Millick v. O’Malley, 47 Idaho 106, 273 P. 947 (1928).

Assignment Without Authority.

Where an administrator assigned the debt, evidenced by a nonnegotiable note, secured by mortgage without authorization of probate court, as required, the assignee received no title to the security and had no right to foreclose the mortgage, under this section, since the title and right to sue on the note did not pass to assignee. Cummings v. Lowe, 52 Idaho 1, 10 P.2d 1059 (1932).

Compiler’s Notes.

Section 33 of S. L. 1967, ch. 272 provided that contracts entered into before such date could be enforced as if the amendment had not occurred.

Effective Dates.

Section 32 of S. L. 1967, ch. 272, provided that the act, which amended various sections of this chapter to eliminate its application to personal property, took effect at midnight on December 31, 1967, simultaneously with the Uniform Commercial Code.

Application.

In order to warrant discharge, terms of statute must be observed. Walker v. Farmers’ Bank, 41 Idaho 279, 238 P. 968 (1925).

Discharge of Lien.

Lien of mortgage which is not discharged by marginal entry, as provided by this section or on certificate as provided in the following section, or by decree of court, remains in force. Kelly v. Leachman, 3 Idaho 629, 33 P. 44 (1893).

Mortgage must be discharged in one of three ways: 1. by entry in margin of record; 2. by certificate signed by mortgagee; 3. by decree of competent court. Kelly v. Leachman, 3 Idaho 629, 33 P. 44 (1893); Walker v. Farmers’ Bank, 41 Idaho 279, 238 P. 968 (1925); International Mtg. Bank v. Whitaker, 44 Idaho 178, 255 P. 903 (1927); Merchants Trust Co. v. Davis, 49 Idaho 494, 290 P. 383 (1930). Execution of renewal note and mortgage on same property accompanied by return of original note and copy of mortgage, marked “paid,” does not discharge lien of first mortgage where it remains undischarged by one of the methods provided by statute. Walker v. Farmers’ Bank, 41 Idaho 279, 238 P. 968 (1925).

Taking second mortgage to secure same debt covered by first upon renewal of note secured by it, and upon same property, does not operate as satisfaction or release in law of first mortgage. Walker v. Farmers’ Bank, 41 Idaho 279, 238 P. 968 (1925).

Execution of new mortgages, with understanding that original mortgage would be discharged if abstract of title showed new mortgages to be first and prior liens, did not amount to renewal and discharge of original mortgage as bearing on priority of lien for materials furnished before execution of new mortgages. International Mtg. Bank v. Whitaker, 44 Idaho 178, 255 P. 903 (1927).

Subsequent Mortgagee.

Subsequent mortgagee not making proper inquiry with respect to unreleased first mortgage was not entitled to protection as bona fide purchaser. Merchants Trust Co. v. Davis, 49 Idaho 494, 290 P. 383 (1930).

Cross References.

Director of department of finance,§ 67-2701.

Mortgages and releases of mortgages to be recorded by county recorder,§ 31-2402.

Notices of mechanics’ liens to be indexed by county recorder,§ 31-2404.

Recording transfers,§ 55-801 et seq.

Compiler’s Notes.

The name of the commissioner of finance has been changed to the director of the department of finance on the authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 40, § 3 (§ 67-2403).

The bracketed insertion near the middle of the section was added by the compiler. Section 26-908 was repealed by S.L. 1979, ch. 41, § 1. Section 26-1010 now empowers the director of the department of finance to employ agents to assist in the liquidation of a bank’s assets.

Effective Dates.

Section 2 of S. L. 1945, ch. 91 declared an emergency. Approved Feb. 28, 1945.

Section 32 of S.L. 1967, ch. 272, provided that the act took effect at midnight on December 31, 1967, simultaneously with the Uniform Commercial Code.

Effective Dates.

Section 32 of S. L. 1967, ch. 272, provided that the act took effect at midnight on December 31, 1967, simultaneously with the Uniform Commercial Code.

Effective Dates.

Section 32 of S.L. 1967, ch. 272, provided that the act took effect at midnight on December 31, 1967, simultaneously with the Uniform Commercial Code. See note to§ 45-912.

Accrual of Action.

Cause of action given by this section does not accrue until mortgage debt has been fully paid and demand for a discharge of mortgage has been made. Barnes v. Pitts Agric. Works, 6 Idaho 259, 55 P. 237 (1898).

Accrual of Interest.

When a tender properly conditioned on delivery of a reconveyance deed has been made, no further interest accrues on the debt, regardless of the length of time that the trustee may take to deliver the reconveyance. Brinton v. Haight, 125 Idaho 324, 870 P.2d 677 (Ct. App. 1994).

A grantor of a deed of trust may condition a tender of full payment upon the contemporaneous delivery of a deed or reconveyance, and that such condition does not vitiate the tender’s effectiveness to terminate the accrual of interest. Brinton v. Haight, 125 Idaho 324, 870 P.2d 677 (Ct. App. 1994).

Actions for Penalties and Damages.

— Evidence.

In an action to quiet title and for the penalty for failure to satisfy a mortgage, wherein defendant filed a cross-complaint on the mortgage, the evidence was sufficient to show that the plaintiffs were indebted to the defendant for a balance of instalments due, taxes, and outlay for bringing the abstract up-to-date, and that there existed a bona fide controversy concerning the amount due, and the court was justified in refusal to impose penalty for failure to satisfy a mortgage. Platts v. Pacific First Federal Savings & Loan Ass’n, 62 Idaho 340, 111 P.2d 1093 (1941).

In an action for penalties and damages for a failure to satisfy mortgages, copies of the mortgagee’s inter-office requests for releases of the mortgages involved and return memorandum containing such releases allegedly mailed to the mortgagor, were admissible only for the purpose of impeaching the testimony of the mortgagor that he had received no releases. Henderson v. Allis-Chalmers Mfg. Co., 65 Idaho 570, 149 P.2d 133 (1943).

In an action by a farm implements dealer for damages for a mortgagee’s failure to satisfy chattel mortgages, the dealer’s testimony of the value of contracts of employment, which he testified he was prevented from obtaining because the chattel mortgages in question had not been released, was improperly excluded. Henderson v. Allis-Chalmers Mfg. Co., 65 Idaho 570, 149 P.2d 133 (1943).

A judgment for penalties and damages for failure to satisfy mortgages was not reversible on the theory that, notwithstanding conditional sales contracts were removed from the jury’s consideration, their baneful effect remained. Henderson v. Allis-Chalmers Mfg. Co., 65 Idaho 570, 149 P.2d 133 (1943).

Complaint for damages for failure to release chattel mortgages based on loss of profits for contemplated purchase of bred ewes was not proved, where evidence showed that plaintiff was not in the sheep business at the time of the contemplated transaction and had not been for some years past. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955).

— Questions of Fact.

Plaintiff under count for statutory penalty for failure to release mortgage established a prima facie case of lack of good faith where there was evidence that defendant stated his refusal in following language: “that’s my business, I will release them when I get d— good and ready to, to h— with you” and that when subsequently approached over the phone for release he was just mum and hung up the phone. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955). — Questions of Fact.

In an action for penalties and damages for failure to satisfy mortgages, whether the mortgagee’s defense that valid releases had been received by the mortgagor was established was for the jury. Henderson v. Allis-Chalmers Mfg. Co., 65 Idaho 570, 149 P.2d 133 (1943).

In an action for penalties and damages for failure to satisfy a mortgage, whether the mortgagor’s request of the mortgagee to satisfy the mortgage was sufficient was a question for the jury. Henderson v. Allis-Chalmers Mfg. Co., 65 Idaho 570, 149 P.2d 133 (1943).

The mortgagee is not liable for statutory penalty for failure to release mortgage if there is a bona fide controversy over the amount due, and refusal to release is in good faith. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955).

Mortgagee was not excused from executing a joint release of six mortgages on the ground that there was a balance due on the last mortgage, where the evidence showed that mortgagee owed the mortgagor on a running account. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955).

Refusal of mortgagee to release six mortgages could not be excused on the ground that there was no consideration for one of the mortgages, since a mortgage is not fraudulent merely because there is lack of consideration, and furthermore question of fraud can only be raised by the creditors in a proper proceeding. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955).

— Right of Action.

The statute permitting a mortgagor to recover penalties and damages for the mortgagee’s failure to satisfy a mortgage gives the mortgagor a cause of action, notwithstanding he has disposed of the mortgaged property. Henderson v. Allis-Chalmers Mfg. Co., 65 Idaho 570, 149 P.2d 133 (1943).

Appeal.

Mortgagor was entitled to a joint release of mortgages where the trial court entered an order that the clerk should enter of record satisfaction of the mortgages from which order the mortgagee made no appeal. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955).

Attorney’s Fees.

Attorney’s fees incurred in action to compel cancellation of usurious mortgage after payment of principal are recoverable as damages. Cornelison v. United States Bldg. & Loan Ass’n, 50 Idaho 1, 292 P. 243 (1930).

In a proceeding under this section for damages attorney fees are allowable in a proper case. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955).

Where mortgages were canceled as part of a judgment rendered on respondents’ fourth cause of action, the proceedings on such cause of action are the matters to be considered in determining the reasonable amount of damages representing attorneys fees incurred by respondents and the allowance by the trial court of the sum of $2,500 damages representing reasonable attorneys fees for the trial of such fourth cause of action was held not to be excessive. Head v. Crone, 79 Idaho 544, 324 P.2d 996 (1958).

Construction and Application.

Attorneys fees incurred as the result of the necessity of bringing an action under this section, for the statutory penalty and for damages for wilful refusal to satisfy mortgages of record after payment of indebtedness due, are recoverable. Head v. Crone, 79 Idaho 544, 324 P.2d 996 (1958). Construction and Application.

In action to foreclose mortgage, where it appears that mortgage was fraudulent, or, if not fraudulent, has been fully paid, and demand was made for release of same, and holder refuses to make release, a case is presented where the statute should be enforced. Blackfoot State Bank v. Crisler, 20 Idaho 379, 118 P. 775 (1911); Cornelison v. United States Bldg. & Loan Ass’n, 50 Idaho 1, 292 P. 243 (1930).

This section is penal and should be strictly construed; hence, penalty should not be imposed where facts obviously indicate a substantial controversy. Harding v. Home Inv. & Sav. Co., 49 Idaho 64, 286 P. 920, 297 P. 1101 (1930).

Elements of Damage.

Plaintiff in an action for specific performance of a land contract cannot claim damages for the interest paid on the money borrowed to pay the purchase price, when he seeks and is permitted damages for the loss of use of the property. Dohrman v. Tomlinson, 88 Idaho 313, 399 P.2d 255 (1965).

Plaintiffs cannot be permitted to recover damages under this section for not being able to sell at a profit the same property in which they have been allowed damages for the loss of its use. Dohrman v. Tomlinson, 88 Idaho 313, 399 P.2d 255 (1965).

Pleading.

Complaint to recover the penalty prescribed by this section must contain a direct and unequivocal allegation of payment of amount secured by mortgage; allegation that plaintiff has fully paid and satisfied the notes and mortgage insofar as holder of said notes and mortgage is concerned is insufficient. Gamble v. Canadian & Am. Mfg. & Trust Co., 6 Idaho 202, 55 P. 241 (1898).

Tender Necessary.

One who claims to have made a tender is not entitled to damages under this section, for mortgagee’s refusal to satisfy a mortgage, where facts show that a sufficient tender was not made. Machold v. Farnan, 20 Idaho 80, 117 P. 408 (1911).

The mortgagor under this section is not required to tender fees for the preparation and recording of a release once a mortgage is satisfied and a release demanded — even though terms of mortgage required expense of making and recording a release to be paid by the mortgagor. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955).

Trial by Jury.

Parties have absolute right to trial by jury. Stevens v. Home Sav. & Loan Ass’n, 5 Idaho 741, 51 P. 779 (1898).

Plaintiff is entitled to jury trial in an action filed to recover damages and penalty for failure of defendant to release mortgage. Head v. Crone, 76 Idaho 196, 279 P.2d 1064 (1955).

Usurious Mortgages.

Mortgage given to secure payment of usurious contract is satisfied upon the payment of principal debt, whereupon mortgagor is entitled to a satisfaction of such mortgage of record, and an action for such relief will lie under this section. Cleveland v. Western Loan & Sav. Co., 7 Idaho 477, 63 P. 885 (1901); Anderson v. Oregon Mtg. Co., 8 Idaho 418, 69 P. 130 (1902).

Effective Dates.

Section 32 of S.L. 1967, chapter 272, provided that the act took effect at midnight on December 31, 1967, simultaneously with the Uniform Commercial Code. See note to§ 45-912.

Cross References.

Partition of real estate, application of proceeds of sale when property encumbered,§ 6-520; resort to other securities compelled,§ 6-521.

Installment Contract Purchase of Land.

Vendees buying land under installment contract possessed a mortgagable interest in the property in question. Rush v. Anestos, 104 Idaho 630, 661 P.2d 1229 (1983).

Interest in Property.

Where the execution sale divested the judgment debtor of all the real property awarded him by the partition order, except for his right of redemption, and he conveyed that away two days after the sale, since he had no interest in the property awarded him he could not be compelled to execute a mortgage on that property. Suchan v. Suchan, 113 Idaho 102, 741 P.2d 1289 (1986).

Property Subject to Mortgage.

Certificates of sale of school lands may be mortgaged. Perkins v. Bundy, 42 Idaho 560, 247 P. 751 (1926).

Interest of vendee under contract to purchase real estate is interest in land that may be transferred and, hence, may be mortgaged. Perkins v. Bundy, 42 Idaho 560, 247 P. 751 (1926); Fulton v. Duro, 107 Idaho 240, 687 P.2d 1367 (Ct. App. 1984); Old Stone Capital Corp. v. John Hoene Implement Corp., 647 F. Supp. 916 (D. Idaho 1986).

Cross References.

Recordation of conveyances,§ 55-801 et seq.

Compiler’s Notes.

Section 24 of S.L. 1957, ch. 181 read: “If any clause, sentence, paragraph, section, or any part or portion of this act shall be declared or adjudged to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect, invalidate, or nullify the remainder of this act.”

Effective Dates.

Section 25 of S.L. 1957, ch. 181 declared an emergency. Approved March 9, 1957.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Prior Laws.

Compiler’s Notes.

For further information about the FAA aircraft registry, referred to in the last senence, see https://registry.faa.gov/aircraftinquiry .

Prior Laws.

Former§ 45-1102, which comprised 1899, p. 292, § 1; reen. R.C. & C.L., § 3407; C.S., § 6374; I.C.A.,§ 44-1002; am. 1967, ch. 272, § 20, p. 745, was repealed by S.L. 1985, ch. 229, § 1.

Compiler’s Notes.

For further information about the FAA aircraft registry, referred to in subsection (2), see https://registry.faa.gov/aircraftinquiry .

The abbreviation enclosed in parentheses so appeared in the law as enacted.

Prior Laws.

Former§ 45-1103, which comprised R.S., § 3386; am. 1890-1891, p. 181, § 1; reen. 1899, p. 121, § 1; reen. R.C. & C.L., § 3408; C.S., § 6375; am. 1929, ch. 250, § 1, p. 508; I.C.A.,§ 44-1003; am. 1935, ch. 85, § 1, p. 149; am 145, ch. 11, § 1, p. 14, was repealed by S.L. 1967, ch. 161,§ 10-102, effective midnight, December 31, 1967.

Compiler’s Notes.

The bracketed insertion near the end of subsection (1) was added by the compiler to clarify the federal reference.

For further information about the FAA aircraft registry, referred to in subsection (4), see https://registry.faa.gov/aircraftinquiry .

Prior Laws.

Former§ 45-1104, which comprised C.S., § 6375(a), as added by 1929, ch. 250, § 2, p. 508; I.C.A.,§ 44-1044, was repealed by S.L. 1967, ch. 161,§ 10-102, effective midnight, December 31, 1967.

Prior Laws.

Former§ 45-1105, which comprised C.S., § 6375(b), as added by 1929, ch. 250, § 3, p. 508; I.C.A.,§ 44-1005, was repealed by S.L. 1967, ch. 161,§ 10-102, effective midnight, December 31, 1967.

Compiler’s Notes.

For further information about the FAA aircraft registry, referred to in subsection (3), see https://registry.faa.gov/aircraftinquiry .

Cross References.

Mechanic’s and materialmen’s liens,§ 45-501 et seq.

Prior Laws.

Former§ 45-1106, which comprised R.S., § 3387; am. 1890, 1891, p. 181, § 2; reen. 1899, p. 121, § 2; reen. R.C. & C.L., § 3409; C.S., § 3676; am. 1921, ch. 137, § 1, p. 323; am. 1929, ch. 250, § 4, p. 508; I.C.A.,§ 44-1006; am. 1951, ch. 251, § 3, p. 540; am. 1959, ch. 72, § 3, p. 157, was repealed by S.L. 1967, ch. 161,§ 10-102, effective midnight, December 31, 1967.

Compiler’s Notes.

For further information about the FAA aircraft registry, referred to in subsection (3), see https://registry.faa.gov/aircraftinquiry .

Prior Laws.

Former§ 45-1107, which comprised 1885, p. 74, § 4; R.S., § 3388; reen. R.C. & C.L., § 3410; C.S., § 6377; am. 1929, ch. 250, § 5, p. 508; I.C.A.,§ 44-1107, was repealed by S.L. 1967, ch. 161,§ 10-102, effective midnight, December 31, 1967.

Prior Laws.

Former§§ 45-1201 to 45-1205, which comprised S.L. 1933, ch. 74, §§ 1 to . 124, were repealed by S.L. 1967, ch. 161,§ 10-102, effective at midnight on December 31, 1967.

Prior Laws.

Former§ 45-1202 was repealed. See Prior Laws,§ 45-1201.

Satisfaction of Obligation.

Only after the obligation secured by a deed of trust is satisfied is the deed reconveyed to the grantor. Defendant A v. Idaho State Bar, 132 Idaho 662, 978 P.2d 222 (1999).

[Title insurer/Title agent]

[Address]

(2) Sixty (60) days shall elapse following the mailing, in the case of certified mail, or delivery, in the case of hand delivery, of the notice prescribed in subsection (1) of this section.

(3) If the title insurer or title agent has not upon expiration of that sixty (60) day period received any objection under section 45-1204, Idaho Code, the title insurer or title agent may then execute, acknowledge, and record a reconveyance of the trust deed in substantially the following form: RECONVEYANCE OF TRUST DEED

[To be used concerning trust deeds as defined in section 45-1502, Idaho Code]

......................, a [Title insurer/Title agent] authorized to act in the State of Idaho does hereby, pursuant to chapter 27, title 41, Idaho Code, reconvey, without warranty, to the person or persons legally entitled thereto, the following trust property covered by a Trust Deed naming ......................, as trustor, and ......................, as beneficiary, which was recorded on .................... in Book ............... at Page .......... as Entry No. ..........:

The following described property located in .................... County, State of Idaho:

[Property Description]

The undersigned title insurer/title agent hereby certifies as follows:

1. The undersigned title insurer/title agent has fully paid or received satisfactory evidence of the payment in full of the obligation secured by said Trust Deed.

2. Not less than thirty (30) days following the payment in full of said Trust Deed, the undersigned hand delivered or mailed by certified mail, return receipt requested, to the record beneficiary or a servicer for the record beneficiary under said Trust Deed at its record address a notice as required in section 45-1203(1), Idaho Code.

3. In excess of sixty (60) days elapsed after the mailing of said notice and no objection to said reconveyance has been received by the undersigned.

Dated ...............

..................................

[Title insurer/Title agent]

[acknowledgment]

(4) A reconveyance of a trust deed, when executed and acknowledged in substantially the form prescribed in subsection (3) of this section shall be entitled to recordation and, when recorded, shall constitute a reconveyance of the trust deed identified therein, irrespective of any deficiency in the reconveyance procedure not disclosed in the release or reconveyance that is recorded other than forgery of the title insurer or title agent’s signature. The reconveyance of a trust deed pursuant to this chapter shall not itself discharge any personal obligation that was secured by the trust deed at the time of its reconveyance.

History.

I.C.,§ 45-1203, as added by 1995, ch. 326, § 1, p. 1092.

Prior Laws.

Former§ 45-1203 was repealed. See Prior Laws,§ 45-1201.

Compiler’s Notes.

The words enclosed in brackets so appeared in the law as enacted.

Satisfaction of Obligation.

Only after the obligation secured by a deed of trust is satisfied is the deed reconveyed to the grantor. Defendant A v. Idaho State Bar, 132 Idaho 662, 978 P.2d 222 (1999).

Prior Laws.

Former§ 45-1204 was repealed. See Prior Laws,§ 45-1201.

Prior Laws.

Former§ 45-1205 was repealed. See Prior Laws,§ 45-1201.

Damages.

In a case arising out of an allegedly improper reconveyance of a junior deed of trust held by appellant, the district court did not err in finding that appellant failed to provide competent evidence of damages on summary judgment. At best, appellant provided speculation and conjecture on the issue, which was not sufficient to support a damages award. Eagle Equity Fund, LLC v. Titleone Corp., 161 Idaho 355, 386 P.3d 496 (2016).

Compiler’s Notes.

The phrase “the effective date of this section” refers to the effective date of S.L. 1995, ch. 326, § 1, which was effective July 1, 1995.

Compiler’s Notes.

This section, which comprised S.L. 1929, ch. 179, § 1, p. 317; I.C.A.,§ 44-1101, was repealed by S.L. 1967, ch. 161,§ 10-102, effective at midnight on December 31, 1967. For present comparable law, see§ 28-9-601.

Amendments.

The 2010 amendment, by ch. 79, deleted “including parties mentioned in section 5-325” following “any person.”

Effective Dates.

Section 32 of S.L. 1967, ch. 272 provided that this act become effective at midnight on December 31, 1967, simultaneously with the Uniform Commercial Code. Section 33 provided that instruments executed before such date could be enforced as if the amendment had not occurred.

Determination.

Upon foreclosure of a mortgage against real estate subject to other liens, the trial court had jurisdiction to order the application of funds remaining after payment of the judgment of the mortgage holder to the satisfaction of such junior liens. Credit Bureau v. Sleight, 92 Idaho 210, 440 P.2d 143 (1968).

Mandatory Party.

Notice.

The purchaser at an execution sale, who acquired the property after the materialman’s lien arose but before foreclosure on the lien, must be named as a party in a foreclosure action by the holder of a materialman’s lien to make the foreclosure action and subsequent foreclosure sale binding on that owner. Bonner Bldg. Supply, Inc. v. Standard Forest Prods., Inc., 106 Idaho 682, 682 P.2d 635 (Ct. App. 1984). Notice.

This section does not enable a materialman to foreclose a lien as against other interested parties without giving them notice of the proceedings. Bonner Bldg. Supply, Inc. v. Standard Forest Prods., Inc., 106 Idaho 682, 682 P.2d 635 (Ct. App. 1984).

Compiler’s Notes.

The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.

Effective Dates.

Section 3 of S.L. 1929, ch. 113 declared an emergency. Approved March 5, 1929.

Compiler’s Notes.

These sections, which comprised R.S., §§ 3410 to 3429; reen. R.C. & C.L., §§ 3421 to 3440; C.S., §§ 6388 to 6407; I.C.A.,§§ 44-1201 to 44-1220; am. 1945, ch. 72, § 1, p. 95, were repealed by S.L. 1967, ch. 161,§ 10-102, effective at midnight on December 31, 1967. For present comparable law, see chapter 9, title 28, Idaho Code.

Compiler’s Notes.

This section, which comprised 1957, ch. 181, § 1, p. 345, was repealed by S.L. 1967, ch. 118, § 1.

Amendments.

The 2008 amendment, by ch. 365, in subsection (5)(b), substituted “eighty (80) acres” for “forty (40) acres,” and substituted “provided that such real property is not principally used for the agricultural production of crops, livestock, dairy or aquatic goods” for “and in either event where the trust deed states that the real property involved is within either of the above provisions, such statement shall be binding upon all parties and conclusive as to compliance with the provisions of this act relative to the power to make such transfer and trust and power of sale conferred in this act”; and added subsection (5)(c).

The 2016 amendment, by ch. 227, rewrote subsection (4), which formerly read: “’Trustee’ means a person to whom the legal title to real property is conveyed by trust deed, or his successor in interest”.

Compiler’s Notes.

The term “this act” in the introductory paragraph and in subsection (3) refers to S.L. 1957, Chapter 181, which is compiled as§§ 45-901, 45-902, 45-904, 45-905, 45-907, 45-908, 45-1003, 45-1502 to 45-1506, and 45-1507 to 45-1515.

The term “this act” in subsection (5) refers to S.L. 1967, Chapter 118, which is compiled as§§ 45-1502 and 45-1503.

Probably, both references should be to “this chapter,” being chapter 15, title 45, Idaho Code.

Effective Dates.

Section 2 of S.L. 1997, ch. 387 declared an emergency. Approved March 24, 1997.

Lien Foreclosure.

Although previously held valid as to the beneficiary of the deed of trust, a mechanic’s lien was not valid as to a trustee’s sale buyer because the builder did not name the trustee of the deed of trust within the six-month period required by§ 45-510 to give effect to a mechanic’s lien against subsequent holders of legal title. Under this section, the trustee was the holder of legal title. Parkwest Homes, LLC v. Barnson, 154 Idaho 678, 302 P.3d 18 (2013).

Mobile Homes.

Mobile home was affixed to the land at the time of a non-judicial foreclosure sale and was, therefore, real property. As real property, the mobile home was subject to a deed of trust and properly transferred to the trustee at the sale pursuant to§ 45-1503 and this section Spencer v. Jameson, 147 Idaho 497, 211 P.3d 106 (2009).

Required Statement.

Under Idaho law a trust deed, which conveyed property exceeding 20 acres [now 80 acres] and did not contain the “statement” required by subdivision (5) of this section, would be treated as a mortgage, the creditor losing only the right to nonjudicial foreclosure and the shorter 120-day period of cure as opposed to one year post-foreclosure period of redemption. Because the trust deed would be recognized as a mortgage by Idaho law, its recordation is constructive notice of the beneficiary’s lien, which would protect its rights as against subsequent purchasers or encumbrancers. Bear Lake W., Inc. v. Stock, 36 Bankr. 413 (Bankr. D. Idaho 1984) (See 2008 amendment). If a trust deed recites that the property described complies with the acreage requirement of this section, such statement is conclusive with respect to compliance with the statute. Even had the deed of trust not recited that the property conveyed the requisite acreage, that defect would not render the instrument ineffective to create a lien. While the beneficiary would likely lose the right to foreclose the deed of trust by private sale, the instrument would be treated as a mortgage subject to judicial foreclosure. Hymas v. Am. Gen. Fin., Inc. (In re Blair), 2000 Bankr. LEXIS 2115 (Bankr. D. Idaho May 18, 2000) (See 2008 amendment).

Title Search Update.

Neither the deed of trust under which the defendant title insurance company was trustee, nor this chapter, established a duty on the part of the defendant to provide updates on title searches made prior to transfer, and the verbal update was not given pursuant to the insurer’s role as trustee; thus, any cause of action based upon negligence against the title insurer because of inaccuracy of the update was barred. Brown’s Tie & Lumber Co. v. Chicago Title Co., 115 Idaho 56, 764 P.2d 423 (1988).

Trust Deed.

A deed of trust conveys to the trustee nothing more than a power of sale, capable of exercise upon the occurrence of certain contingencies (such as default in payment) and leaves in the trustor a legal estate comprised of all incidents of ownership which passes to the bankruptcy estate upon the filing of bankruptcy. Long v. Williams, 105 Idaho 585, 671 P.2d 1048 (1983).

Even though title passes for the purpose of the trust, a deed of trust is for practical purposes only a mortgage with power of sale. Long v. Williams, 105 Idaho 585, 671 P.2d 1048 (1983).

Although for practical purposes a deed of trust is only a mortgage with power of sale, title to the real estate does pass for the purpose of the trust, and legal title to the property is conveyed by the deed of trust to the trustee. Defendant A v. Idaho State Bar, 132 Idaho 662, 978 P.2d 222 (1999).

Where the chain of assignments concerning the deed of trust was apparently corrupted when an alleged beneficiary made a transfer when it held no interest in the deed of trust, debtors’ adversary complaint to nullify the deed of trust under§ 45-1505 and this section could proceed to trial. Rinehart v. Fed. Nat’l Mortg. Assocs. (In re Rinehart), 2012 Bankr. LEXIS 3414 (Bankr. D. Idaho July 24, 2012).

A deed of trust conveys real property to a trustee in trust to secure the performance of an obligation of the grantor or other person named in the deed to a beneficiary. When a deed of trust is executed and delivered, the legal title of the property passes to the trustee. Liberty Bankers Life Ins. Co. v. Witherspoon, Kelley, Davenport & Toole, P.S., 159 Idaho 679, 365 P.3d 1033 (2016).

Cross References.

Foreclosure of mortgages,§ 6-101 et seq.

Compiler’s Notes.

The term “this act” in the second sentence in the introductory paragraph in subsection (1) refers to S.L. 1957, Chapter 181, which is compiled as§§ 45-901, 45-902, 45-904, 45-905, 45-907, 45-908, 45-1003, 45-1502 to 45-1506, and 45-1507 to 45-1515.

Effective Dates.

Section 4 of S.L. 1967, ch. 118 declared an emergency. Approved March 15, 1967.

Section 2 of S.L. 1989, ch. 340 declared an emergency. Approved April 5, 1989.

Amendment of 1989.

The thrust of the legislative intent with regard to the 1989 amendment of this section is that where the obligation secured by a deed of trust is breached, the beneficiary may not institute a judicial action unless specific conditions are met, and this language hardly lends itself to the argument that the legislature meant for this section as amended to have retroactive effect upon existing actions. Frazier v. Neilsen & Co., 118 Idaho 104, 794 P.2d 1160 (Ct. App. 1990).

Proceedings initiated before April 5, 1989, the effective date of the 1989 amendment to this section, will be subject to the law as announced in Frazier v. Neilsen & Co. , 115 Idaho 739, 769 P.2d 1111 (1989), while proceedings initiated upon or after April 5, 1989 will be subject to this section as amended. Frazier v. Neilsen & Co., 118 Idaho 104, 794 P.2d 1160 (Ct. App. 1990). The 1989 amendments to this section did not apply to a promissory note which was executed prior to the 1989 amendments. Curtis v. Firth, 123 Idaho 598, 850 P.2d 749 (1993).

Bankruptcy.

A deed of trust conveys to the trustee nothing more than a power of sale, capable of exercise upon the occurrence of certain contingencies (such as default in payment) and leaves in the trustor a legal estate comprised of all incidents of ownership which passes to the bankruptcy estate upon the filing of bankruptcy. Long v. Williams, 105 Idaho 585, 671 P.2d 1048 (1983).

Foreclosures.

In 1957,§§ 45-901 and 45-904 were amended to eliminate trust deeds from their operation and likewise the mortgage laws, directing attention to§§ 6-101 and 6-104 which were amended to draw a distinction between a trust deed or transfer in trust and a mortgage to the effect that mortgage foreclosure proceedings are not applicable to proceedings for the foreclosure of a trust deed by advertisement or notice and sale. Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958).

Where beneficiaries of deed of trust opted for judicial foreclosure, rather than foreclosure by advertisement and sale, the court properly determined the amount of the deficiency judgment by proceeding under§ 6-108, rather than under§ 45-1512. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984) (See 1989 amendment).

Mobile Homes.

Mobile home was affixed to the land at the time of a non-judicial foreclosure sale and was, therefore, real property. As real property, the mobile home was subject to a deed of trust and properly transferred to the trustee at the sale pursuant to§ 45-1502 and this section Spencer v. Jameson, 147 Idaho 497, 211 P.3d 106 (2009).

Remedies.

This section is not to be interpreted as providing only two remedies, the exercise of power of sale and foreclosure, upon default where the obligation is secured by a deed of trust; if the statute was intended to provide exclusive remedies, it would have used mandatory “shall” language, rather than the permissive “may.” Frazier v. Neilsen & Co., 115 Idaho 739, 769 P.2d 1111 (1989).

Substantially Valueless Security.

No action can be maintained for the recovery on a promissory note secured by a deed of trust, unless the action is coupled with an action to foreclose the deed of trust, except where it is shown that the security has become substantially valueless. First Interstate Bank v. Eisenbarth, 123 Idaho 895, 853 P.2d 640 (Ct. App. 1993).

Bank was entitled to proceed directly against debtors where its interest in the property was rendered substantially valueless as defined in subsection (2) of this section. First Interstate Bank v. Eisenbarth, 123 Idaho 895, 853 P.2d 640 (Ct. App. 1993).

Cited

When a bank foreclosed on a mortgage on a cottage on land leased from the Idaho department of lands, the bank’s deficiency claim was barred because (1) the cottage was real property, (2) the lease was not substantially valueless, (3) the bank had to first foreclose on the mortgage, (4) the claim was not asserted within three months of foreclosing, and (5) the claim did not relate back to original or first amended complaints, under which the claim would have been timely. Idaho First Bank v. Bridges, 164 Idaho 178, 426 P.3d 1278 (2018). Cited Frazier v. Neilsen & Co., 115 Idaho 739, 769 P.2d 1111 (1989).

Compiler’s Notes.

The term “this act” in the introductory paragraph in subsection (1) refers to S.L. 1957, Chapter 181, which is compiled as§§ 45-901, 45-902, 45-904, 45-905, 45-907, 45-908, 45-1003, 45-1502 to 45-1506, and 45-1507 to 45-1515.

Effective Dates.

Section 2 of S.L. 1969, ch. 155 declared an emergency. Approved March 14, 1969.

Successor Trustee.

Deed of trust beneficiary’s appointment of a trustee the day before the deed of trust was assigned to it was valid; under subsection (2), the beneficiary vested the authority of trusteeship through the act of recording not the date of assignment. Russell v. Onewest Bank FSB, 2011 U.S. Dist. LEXIS 121836 (D. Idaho Oct. 20, 2011).

History.

(4) No action, suit or proceeding has been instituted to recover the debt then remaining secured by the trust deed, or any part thereof, or if such action or proceeding has been instituted, the action or proceeding has been dismissed. History.

1957, ch. 181, § 5, p. 345; am. 1990, ch. 401, § 1, p. 1122; am. 2008, ch. 192, § 2, p. 603; am. 2009, ch. 136, § 1, p. 417.

Cross References.

Attorney general,§ 67-1401 et seq.

Amendments.

The 2008 amendment, by ch. 192, in subsection (3), added the third and fourth sentences, the notice, and the last paragraph.

The 2009 amendment, by ch. 136, in subsection (3), deleted “canary yellow or some similarly colored yellow” following “on a separate sheet of” just prior to the notice.

Legislative Intent.

Section 5 of S.L. 1990, ch. 401 read: “The legislature finds and declares that the following referred to amendatory provisions contained in this act are merely clarifications of existing law and are not intended to be and are declared not to be changes in existing law:

“a. The sentence added to subsection (3) of section 45-1505, Idaho Code;

“b. The changes reflected in subsections (2)(a), in the first phrase of subsection (2)(b), in subsection (13) and added subsection (14) of section 45-1506, Idaho Code;

“c. The changes reflected in Section 4 [§ 45-1510] of this act; and

“d. Various mere semantical changes and corrections of obvious grammatical and typographical errors.”

Compiler’s Notes.

The term “this act” in the introductory paragraph refers to S.L. 1957, Chapter 181, which is compiled as§§ 45-901, 45-902, 45-904, 45-905, 45-907, 45-908, 45-1003, 45-1502 to 45-1506, and 45-1507 to 45-1515.

Assignments.

When lender transferred its interest in a promissory note, it also transferred its interest in the deed of trust. However, as there was no change in the name of the nominee (the named beneficiary in the deed of trust), no assignment of the deed of trust was necessary or recordable. The beneficiary/trustee may foreclose on the deed of trust under this section. Renshaw v. Mortg. Elec. Registration Sys., 155 Idaho 656, 315 P.3d 844 (2013).

Construction.

This section and§ 45-1512 are in pari materia and must be construed together. Frontier Federal Sav. & Loan Ass’n v. Douglass, 123 Idaho 808, 853 P.2d 553, cert. denied, 510 U.S. 917, 114 S. Ct. 309, 126 L. Ed. 2d 257 (1993).

Where the chain of assignments concerning the deed of trust was apparently corrupted when an alleged beneficiary made a transfer when it held no interest in the deed of trust, debtors’ adversary complaint to nullify the deed of trust under§ 45-1502 and this section could proceed to trial. Rinehart v. Fed. Nat’l Mortg. Assocs. (In re Rinehart), 2012 Bankr. LEXIS 3414 (Bankr. D. Idaho July 24, 2012).

Delay of Foreclosure Sale.

Where a deed of trust, which was drafted by counsel for plaintiff, specifically granted defendant trustee the power to delay the foreclosure sale and recognized its statutorily imposed notice obligations as trustee, the action of the defendant, in delaying the scheduled foreclosure sale after discovering a previously unknown trust deed, was necessary to clear that trust deed from title at the judicial sale and, therefore, was a proper exercise of its powers as trustee and could not form the basis for an insurer’s bad faith claim. Brown’s Tie & Lumber Co. v. Chicago Title Co., 115 Idaho 56, 764 P.2d 423 (1988).

Foreclosure Sale Void.

Summary judgment in favor of the foreclosure sale purchaser should not have been granted, given case law holding that a sale is void under subsection (2) when there was no default at the time of the foreclosure sale; there was evidence in the record that there had been no default. Fannie Mae v. Hafer, 158 Idaho 694, 351 P.3d 622 (2015).

No Prerequisites.

Pursuant to this section, a trustee may initiate nonjudicial foreclosure proceedings on a deed of trust without first proving ownership of the underlying note or demonstrating that the deed of trust beneficiary has requested or authorized the trustee to initiate those proceedings. Trustee is not required to prove it has standing before foreclosing on a deed of trust. Trotter v. Bank of N.Y. Mellon, 152 Idaho 842, 275 P.3d 857 (2012); Purdy v. Bank of Am., 2012 U.S. Dist. LEXIS 140935 (D. Idaho Sept. 26, 2012).

Notice of Trustee’s Sale.

A beneficiary was not precluded from recovering a statutory deficiency judgment allowed by§ 45-1512 by waiver or estoppel because the notice of trustee’s sale stated that “the beneficiary elects to sell or cause the trust property to be sold to satisfy said obligation.” Frontier Federal Sav. & Loan Ass’n v. Douglass, 123 Idaho 808, 853 P.2d 553, cert. denied, 510 U.S. 917, 114 S. Ct. 309, 126 L. Ed. 2d 257 (1993). Lender complied with this section in effecting a foreclosure sale of Chapter 11 debtors’ property where the deed of trust was recorded, the debtors were in default, a notice of default stating the debtors’ breach was recorded, and the debtors were properly served; the claim by the debtors that the lender did not provide the notice required by the deed of trust did not invalidate the sale because the debtors failed to establish that the alleged breach of the deed of trust would vitiate the statutory foreclosure process. Thorian v. BARO Enters., LLC (In re Thorian), 387 B.R. 50 (Bankr. D. Idaho 2008).

Procedure.

In 1957,§§ 45-901 and 45-904 were amended to eliminate trust deeds from their operation and likewise the mortgage laws, directing attention to§§ 6-101 and 6-104 which were amended to draw a distinction between a trust deed or transfer in trust and a mortgage to the effect that mortgage foreclosure proceedings are not applicable to proceedings for the foreclosure of a trust deed by advertisement or notice and sale as authorized by chapter 181, such procedure being set out in§ 45-1503, this section also requiring the recording of the trust deed and any assignment thereof and§ 45-1506 requiring notice of trustee sale, setting up details of the complete procedure for sale. Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958).

Prohibition of Foreclosure.

A trustee may foreclose a trust deed if there is a default by the grantor. Where the lender and the homeowners had resolved their default by agreement prior to the foreclosure sale, the foreclosure sale was not authorized by statute and was, therefore, void. Fannie Mae v. Hafer, 158 Idaho 694, 351 P.3d 622 (2015).

Suit to Recover Debt.

— Dismissal.

Subdivision (4) provides that if the suit upon the debt is dismissed, foreclosure may again be made of the trust deed; if, during the suit on the debt, the property covered by the trust deed has been conveyed or encumbered by the debtor, any revival of the security of the trust deed upon dismissal of the suit on the debt as provided in subdivision (4) shall be subject to any such conveyance or encumbrance. Frazier v. Neilsen & Co., 115 Idaho 739, 769 P.2d 1111 (1989).

— Exhausting Security.

Holders of a promissory note secured by a deed of trust encumbering real property may sue for a money judgment on the note without first exhausting their security by judicial foreclosure or by exercise of the power of sale. Frazier v. Neilsen & Co., 115 Idaho 739, 769 P.2d 1111 (1989).

— Prohibition of Foreclosure.

— Waiver of Security.

Section prohibited holders of promissory note secured by a deed of trust from prevailing on their complaint which asked for judgment upon the debt and judgment to foreclose the deed of trust. Subsection (4) provides that the summary foreclosure procedure cannot be utilized if judicial process is being used to recover the debt; such language does not prohibit the collection of a debt without foreclosure of the trust deed, but does prohibit foreclosure if there is an action on the debt pending. Frazier v. Neilsen & Co., 115 Idaho 739, 769 P.2d 1111 (1989). — Waiver of Security.

In subdivision (4) of this statute, the legislature contemplated a suit on debt independent of foreclosure provisions; if the creditor files suit to recover on the debt without first foreclosing on the security as provided by the statute, the security, as a matter of law, is waived at the time the action on the debt is filed. Frazier v. Neilsen & Co., 115 Idaho 739, 769 P.2d 1111 (1989).

Amendments.

The 2011 amendment, by ch. 323, added the last three sentences in subsection (8).

The 2012 amendment, by ch. 326, added the second sentence in subsection (6).

The 2016 amendment, by ch. 364, added subsection (15).

Legislative Intent.

Section 5 of S.L. 1990, ch. 401 read: “The legislature finds and declares that the following referred to amendatory provisions contained in this act are merely clarifications of existing law and are not intended to be and are declared not to be changes in existing law:

“a. The sentence added to subsection (3) of section 45-1505, Idaho Code;

“b. The changes reflected in subsections (2)(a), in the first phrase of subsection (2)(b), in subsection (13) and added subsection (14) of section 45-1506, Idaho Code;

“c. The changes reflected in Section 4 [§ 45-1510] of this act; and

“d. Various mere semantical changes and corrections of obvious grammatical and typographical errors.”

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 4 of S.L. 2011, ch. 323 provided: “This act shall be in full force and effect on and after September 1, 2011.”

Section 2 of S.L. 2012, ch. 326 declared an emergency. Approved April 5, 2012.

Applicability.

The buyer protections afforded by§ 45-1508 apply only to sales challenged for a failure to comply with the procedural provisions of this section; good faith purchasers are not insulated against every claim or reason for voiding a foreclosure sale. Section 45-1508 does not apply to a foreclosure sale that was void for a lack of default at the time of the sale. Baker v. Nationstar Mortg., LLC (In re Baker), 574 B.R. 184 (Bankr. D. Idaho 2017).

Costs Recoverable by Beneficiary.

Curing Default.

Expenses of the trustee’s sale, including a reasonable charge by the trustee and a reasonable attorney’s fee incurred up to the time of sale, interest accrued from the date of sale to the date of judgment at the rate provided in the promissory note, and costs of the action for a deficiency and reasonable attorney fees incurred in the action were recoverable by the beneficiary in an action to obtain a deficiency judgment. Farber v. Howell, 111 Idaho 132, 721 P.2d 731 (Ct. App. 1986). Curing Default.

A tender of money to cure a default under subsection (12) of this section, which would usually be indispensable, is not required when its futility is shown; however, the fact that a bank manager had stated that he would have to check to see if a payment curing the default could be accepted was not enough, standing alone, to establish that an actual tender would have been futile. Owens v. Idaho First Nat’l Bank, 103 Idaho 465, 649 P.2d 1221 (Ct. App. 1982).

In order to constitute a valid tender of money, the law requires an actual, present, physical offer and a mere spoken offer to pay does not qualify as a valid tender; therefore, where an agent for property owners, whose property was to be sold after they defaulted on a note to a bank, only made an oral offer to cure the default in a phone conversation with the bank manager, the offer did not constitute a valid tender. Owens v. Idaho First Nat’l Bank, 103 Idaho 465, 649 P.2d 1221 (Ct. App. 1982).

Agreement between the parties did not merely provide that the sale would be postponed; it eliminated the default by altering the terms of the promissory note so that there were no longer any sums past due. Taylor v. Just, 138 Idaho 137, 59 P.3d 308 (2002).

Excessive Bid.

Because the lender bid in excess of the amount of credit available to it under one of the deeds of trust, it did not pay the price owing before the trustee executed the trustee’s deed as required by this section. However, it was unnecessary to set aside the sale, as the sale became final when the trustee accepted the lender’s bid. Spencer v. Jameson, 147 Idaho 497, 211 P.3d 106 (2009).

Injunction Against Foreclosure.

If plaintiff had produced money and defendant had refused to accept the amount, an injunction to stay foreclosure would have been in order; however, where there was no evidence that there was an actual production or delivery of money coupled with plaintiff’s offer to pay, an injunction against foreclosure was properly denied. Statement of defendant that the entire balance of the deed of trust was due was not sufficient to constitute a refusal, thus excusing plaintiff from making a valid tender in order to avoid foreclosure of deed of trust. Allied Invs., Inc. v. Dunn, 104 Idaho 764, 663 P.2d 300 (1983).

Postponement.

Any alleged error occurring at the postponement of a foreclosure was remedied through the later notices of, and the borrower’s apparent acquiescence to, the postponement where she was properly informed. Gordon v. United States Bank Nat’l Ass’n, — Idaho —, 455 P.3d 374 (2019).

Procedure.

In 1957,§§ 45-901 and 45-904 were amended to eliminate trust deeds from their operation and likewise the mortgage laws, directing attention to§§ 6-101 and 6-104 which were amended to draw a distinction between a trust deed or transfer in trust and a mortgage to the effect that mortgage foreclosure proceedings are not applicable to proceedings for the foreclosure of a trust deed. Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958). If no bankruptcy is ever filed and no stay intervenes, postponement of a foreclosure sale proceeds according to subsection (8) of this section; but if a stay is in effect on the date of a scheduled sale, postponement proceeds according to§ 45-1506A. If a stay has been lifted before the scheduled sale date, then postponement proceeds according to§ 45-1506B. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 137 P.3d 429 (2006).

Unlike sales postponed under§ 45-1506A or this section, which require recorded affidavits certifying compliance with the notice requirements, a sale postponed under§ 45-1506B is simply rescheduled at the original sale and no further notice of any kind is necessary. A bidder who is told at a scheduled sale that the sale is being postponed and rescheduled pursuant to§ 45-1506B(3) has no reason to inquire whether the trustee is following the proper postponement statute and, thus, may have no knowledge that the actual notice provisions were not complied with. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 137 P.3d 429 (2006).

Lender complied with this section in effecting a foreclosure sale of Chapter 11 debtors’ property where the notice of sale was published in the Idaho Statesman; the claim by the debtors that the lender did not provide the notice required by the deed of trust did not invalidate the sale, because the debtors failed to establish that the alleged breach of the deed of trust would vitiate the statutory foreclosure process. Thorian v. BARO Enters., LLC (In re Thorian), 387 B.R. 50 (Bankr. D. Idaho 2008).

This section requires that notice of the foreclosure sale be mailed to the personal representative of the estate of the deceased person who was entitled to notice. At the time the notice was mailed in this case, the owner was not the personal representative of the estate; the fact that she was appointed as personal representative eighteen months later did not retroactively validate the failure to comply with the section. PHH Mortg. Servs. Corp. v. Perreira, 146 Idaho 631, 200 P.3d 1180 (2009).

Where a mortgagor defaulted upon her mortgage loan repayment obligation, a trustee’s sale was scheduled, the sale was postponed when the mortgagor agreed to make a partial payment in exchange for the postponement. The trustee verbally announced the time and place for the rescheduled sale, and the property was sold at the rescheduled sale. The buyer instituted an ejectment action to remove the mortgagor from the property, and the mortgagor claimed that she was deprived of due process because she did not receive notice of the postponed sale date. The notice was sufficient because the trustee’s announcement at the original sale date complied with subsection (8) of this section. While the mortgagor might have prevailed if she had persisted in her argument that the sale had been cancelled rather than postponed, her attorney failed to pursue this argument on appeal, and the court was not in a position to act upon a ground not presented on appeal. Black Diamond Alliance, LLC v. Kimball, 148 Idaho 798, 229 P.3d 1160 (2010).

Simultaneous Foreclosure.

Pursuant to§ 45-1505, a trustee may initiate nonjudicial foreclosure proceedings on a deed of trust without first proving ownership of the underlying note or demonstrating that the deed of trust beneficiary has requested or authorized the trustee to initiate those proceedings. Trustee is not required to prove it has standing before foreclosing on a deed of trust. Trotter v. Bank of N.Y. Mellon, 152 Idaho 842, 275 P.3d 857 (2012); Purdy v. Bank of Am., 2012 U.S. Dist. LEXIS 140935 (D. Idaho Sept. 26, 2012). Simultaneous Foreclosure.

Where acceptable to the mortgagees, there is no impediment to ordering a simultaneous foreclosure; the foreclosure sale would result in each party being reimbursed by priority to the extent of the proceeds, neither would receive a redemption right, and each would receive a deficiency to the extent his or her debt was not satisfied, with appropriate credit being given for the reasonable value of the security. First Sec. Bank v. Stauffer, 112 Idaho 133, 730 P.2d 1053 (Ct. App. 1986).

ALR.

§ 45-1506A. Rescheduled sale — Original sale barred by stay — Notice of rescheduled sale.

1. In the event a sale cannot be held at the time scheduled by reason of automatic stay provisions of the U.S. bankruptcy code (11 U.S.C. 362), or a stay order issued by any court of competent jurisdiction, then the sale may be rescheduled and conducted following expiration or termination of the effect of the stay in the manner provided in this section.
2. Notice of the rescheduled sale shall be given at least thirty (30) days before the day of the rescheduled sale by registered or certified mail to the last known address of all persons who were entitled to notice by mail of the original sale and to any person who shall have recorded a request for notice of sale at least forty-five (45) days prior to the rescheduled sale date in the form and manner required by section 45-1511, Idaho Code, provided that recording the request prior to notice of default is, for the purposes of this section only, waived.
3. Notice of the rescheduled sale shall be published in the newspaper of original publication once a week for three (3) successive weeks, making three (3) publishings in all, with the last publication to be at least ten (10) days prior to the day of sale.
4. The trustee shall make an affidavit stating that he or she has complied with subsections (2) and (3) of this section. The trustee shall make the above affidavit available for inspection at the time of the rescheduled sale together with any affidavit of mailing and posting, when required, which was not of record as required by subsection (7) of section 45-1506, Idaho Code, when the stay became effective. The affidavit or affidavits shall be attached to or incorporated in the trustee’s deed.

History.

I.C.,§ 45-1506A, as added by 1983, ch. 190, § 4, p. 514; am. 1987, ch. 166, § 1, p. 326.

Compiler’s Notes.

The reference enclosed in parentheses so appeared in the law as enacted.

Effect of Bankruptcy Stay.

Failure to Comply.

If no bankruptcy is ever filed and no stay intervenes, postponement of a foreclosure sale proceeds according to§ 45-1506(8); but if a stay is in effect on the date of a scheduled sale, postponement proceeds according to this section. If a stay has been lifted before the scheduled sale date, then postponement proceeds according to§ 45-1506B. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 137 P.3d 429 (2006). Failure to Comply.

Although a credit bid used by a purchaser at a trustee’s sale was the equivalent of a cash sale, the sale was void because the trustee failed to comply with notice provisions of this section. The trustee’s compliance with§ 45-1506B was immaterial where the borrower had no notice of the first rescheduled sale date after a bankruptcy stay went into effect. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 137 P.3d 429 (2006).

Procedure.

Unlike sales postponed under§ 45-1506 or this section, which require recorded affidavits certifying compliance with the notice requirements, a sale postponed under§ 45-1506B is simply rescheduled at the original sale and no further notice of any kind is necessary. A bidder who is told at a scheduled sale that the sale is being postponed and rescheduled pursuant to§ 45-1506B(3) has no reason to inquire whether the trustee is following the proper postponement statute and, thus, may have no knowledge that the actual notice provisions were not complied with. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 137 P.3d 429 (2006).

Effective Dates.

Section 6 of S.L. 1983, ch. 190 declared an emergency. Approved April 9, 1983.

Applicability.

If no bankruptcy is ever filed and no stay intervenes, postponement of a foreclosure sale proceeds according to§ 45-1506(8); but if a stay is in effect on the date of a scheduled sale, postponement proceeds according to§ 45-1506A. If a stay has been lifted before the scheduled sale date, then postponement proceeds according to this section. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 137 P.3d 429 (2006).

Failure to Comply.

Although a credit bid used by a purchaser at a trustee’s sale was the equivalent of a cash sale, the sale was void because the trustee failed to comply with notice provisions of§ 45-1506A. The trustee’s compliance with this section was immaterial where the borrower had no notice of the first rescheduled sale date after a bankruptcy stay went into effect. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 137 P.3d 429 (2006).

Procedure.

Unlike sales postponed under§§ 45-1506 or 45-1506A, which require recorded affidavits certifying compliance with the notice requirements, a sale postponed under this section is simply rescheduled at the original sale and no further notice of any kind is necessary. A bidder who is told at a scheduled sale that the sale is being postponed and rescheduled pursuant to subsection (3) of this section has no reason to inquire whether the trustee is following the proper postponement statute and, thus, may have no knowledge that the actual notice provisions were not complied with. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 137 P.3d 429 (2006).

(5) At least twenty (20) days prior to the date of sale, the trustee shall file for record in the office of the recorder in each county wherein the trust property, or some part or parcel, is situated, an affidavit substantially in the following form from the beneficiary or the beneficiary’s agent which states that the beneficiary or the beneficiary’s agent has complied with the provisions of this section. The filing of the following affidavit of compliance is conclusive evidence of compliance with this section as to any party relying on said affidavit of compliance: AFFIDAVIT OF COMPLIANCE WITH IDAHO CODE SECTION 45-1506C

COMES NOW ..............................., being first duly sworn, deposes and says:

1. I am the (title — officer or agent) of (name of beneficiary), the beneficiary of the Deed of Trust recorded as instrument number (recorder’s instrument number), County of (County), Idaho, the “Deed of Trust.”
2. Beneficiary or Beneficiary’s agent has complied with section 45-1506C, Idaho Code, in by: (a) providing the notice required in section 45-1506C(1), Idaho Code; (b) providing the loan modification request form required in section 45-1506C(2), Idaho Code; (c) evaluating the request for modification and providing a written response to the request as required in section 45-1506C(3), Idaho Code; and (d) scheduling, and if attended by the grantor of the Deed of Trust, attending, in person or by telephone, the meeting required in section 45-1506C(4), Idaho Code.

....................................

SIGNATURE

(INSERT NOTARY SUBSCRIPTION FOR STATE IN WHICH AFFIDAVIT IS EXECUTED; IDAHO FORM OF SUBSCRIPTION IS SET OUT BELOW)

STATE OF IDAHO     )

)

County of ..........     )

On this ..... day of (month), 20.., before me, ..................., a Notary Public in and for said state, personally appeared .........., known or identified to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that such officer or agent executed the same.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

...............................

Notary Public for Idaho

Residing at ...............................

My Commission expires ...............................

(6) Whenever the attorney general has reason to believe that any person has failed to follow the requirements of this section and that proceedings would be in the public interest, he may bring an action in the name of the state against such person for enforcement of the provisions of this section with the same procedure and in the same manner as granted the attorney general and district court pursuant to section 48-606(1)(a), (b), (d), (e) and (f) and subsections (2) through (5), Idaho Code, of the Idaho consumer protection act, chapter 6, title 48, Idaho Code.

History.

(7) All penalties, costs and fees received or recovered by the attorney general shall be remitted to the consumer protection account [consumer protection fund] and expended pursuant to section 48-606(5), Idaho Code. History.

I.C.,§ 45-1506C, as added by 2011, ch. 323, § 2, p. 939.

Cross References.

Attorney general,§ 67-1401.

Compiler’s Notes.

For further information on HUD housing counselors, see https://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm .

The bracketed insertion in subsection (7) was added by the compiler to correct the name of the referenced fund. See§ 48-606.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 4 of S.L. 2011, ch. 323 provided: “This act shall be in full force and effect on and after September 1, 2011.”

Costs Recoverable by Beneficiary.

Expenses of the trustee’s sale, including a reasonable charge by the trustee and a reasonable attorney’s fee incurred up to the time of sale, interest accrued from the date of sale to the date of judgment at the rate provided in the promissory note, and costs of the action for a deficiency and reasonable attorney fees incurred in the action were recoverable by the beneficiary in an action to obtain a deficiency judgment. Farber v. Howell, 111 Idaho 132, 721 P.2d 731 (Ct. App. 1986).

Deficiency.

The statute provides that a debtor is entitled to any surplus of actual proceeds from a trustee’s sale after the expenses of the sale, the obligations secured by the deed of trust, and any subordinate liens have been satisfied, but there is no corresponding provision for an award to the debtor measured by the excess of fair market value over the secured debt. Wilhelm v. Johnston, 136 Idaho 145, 30 P.3d 300 (Ct. App. 2001).

Non-equity Proceeding.

The statutory scheme for non-judicial foreclosure of deeds of trust and the distribution of surplus proceeds from a sale are not subject to the principles of equity, even if a debtor who defaulted under two separate promissory notes will obtain a windfall following the sale. Spencer v. Jameson, 147 Idaho 497, 211 P.3d 106 (2009).

Legislative Intent.

Section 5 of S.L. 1990, ch. 401 read: “The legislature finds and declares that the following referred to amendatory provisions contained in this act are merely clarifications of existing law and are not intended to be and are declared not to be changes in existing law:

“a. The sentence added to subsection (3) of section 45-1505, Idaho Code;

“b. The changes reflected in subsections (2)(a), in the first phrase of subsection (2)(b), in subsection (13) and added subsection (14) of section 45-1506, Idaho Code;

“c. The changes reflected in Section 4 [§ 45-1510] of this act; and

“d. Various mere semantical changes and corrections of obvious grammatical and typographical errors.”

Compiler’s Notes.

The term “this act” near the beginning of the section refers to S.L. 1957, Chapter 181, which is compiled as§§ 45-901, 45-902, 45-904, 45-905, 45-907, 45-908, 45-1003, 45-1502 to 45-1506, and 45-1507 to 45-1515.

Applicability.

The buyer protections afforded by this section apply only to sales challenged for a failure to comply with the procedural provisions of§ 45-1506; good faith purchasers are not insulated against every claim or reason for voiding a foreclosure sale. This section does not apply to a foreclosure sale that was void for a lack of default at the time of the sale. Baker v. Nationstar Mortg., LLC (In re Baker), 574 B.R. 184 (Bankr. D. Idaho 2017).

Bankruptcy.

Where prior to the commencement of bankruptcy proceedings, a purchaser at a trust deed sale was an entity under a specific local law against whom a subsequent bona fide purchaser could not perfect an interest, notwithstanding the provisions of the general recording laws, the rights of purchaser of bankrupt debtor’s residence, as of the time of the sale, could not be avoided under § 544 (a) (3) of the Bankruptcy Code (11 U.S.C. § 544 (a) (3)). Young v. Washington Fed. Sav. & Loan Ass’n, 156 Bankr. 282 (Bankr. D. Idaho 1993).

Claims Against Mortgagor’s Successor.

A mortgagee is not precluded from suing to collect the entire debt secured by a mortgage where the debt was not due and where there was no basis to foreclose the mortgage at the time the property was sold to a third party by the trustee of prior deeds of trust for less than the fair market value of the property. Idaho Power Co. v. Benj. Houseman Co., 123 Idaho 674, 851 P.2d 970 (1993).

Constitutionality.

The statutory right of redemption, following an execution sale of real property, given by§§ 11-310, 11-401, 11-402 and following judicial foreclosure of a mortgage, given by§ 6-101 is expressly denied to the grantor in a trust deed by this section where the sale is made by the trustee by notice and sale, or advertisement and sale, pursuant to the power contained in the deed and the applicable portions of said chapter 15 of title 45. The legislative withdrawal of this legislatively given right of redemption is not a denial of due process, where the withdrawal is effected only in cases where the property owner by his contract so agrees. Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958).

Discharge of Security Interest.

Although the seller of various items of fruit packing machinery had retained a security interest to secure the purchase price, a subsequent foreclosure sale of the real property to which the machinery was affixed discharged the security interest held by the seller of the machinery, where the purchase at the foreclosure sale of the real estate and fruit packing machinery was in good faith. Northwest Equip. Sales Co. v. Western Packers, Inc., 623 F.2d 92 (9th Cir. 1980).

Equitable Remedies.

Good Faith Purchaser.

Although this section prevents the purchaser from redeeming the property sold, it does not prevent equity from ordering compensation to the vendor for her conveyance of the property. Pichon v. L.J. Broekemeier, Inc., 108 Idaho 846, 702 P.2d 884 (Ct. App. 1985). Good Faith Purchaser.

Bidder was not a good faith purchaser because the foreclosure sale was void for failure to comply with§ 45-1505(2); and the bidder was not a good faith purchaser for value because he did not acquire title to the real property. Taylor v. Just, 138 Idaho 137, 59 P.3d 308 (2002).

Irregularity In Sale.

This section does not require that the grantor to a deed of trust demonstrate harm resulting from an irregularity in a non-judicial foreclosure sale in order to have the sale set aside. The district court may not impose this additional requirement, thereby increasing the grantor’s burden. Spencer v. Jameson, 147 Idaho 497, 211 P.3d 106 (2009).

Completed foreclosure sale was not invalidated or reversed, despite any alleged error in postponement or a purported violation of§ 45-1506(8), where the borrower received proper notice of the initial foreclosure sale and proper subsequent procedures remedied any prior problems with the postponement. Gordon v. United States Bank Nat’l Ass’n, — Idaho —, 455 P.3d 374 (2019).

Compiler’s Notes.

The term “this act” in subsection (1) refers to S.L. 1957, Chapter 181, which is compiled as§§ 45-901, 45-902, 45-904, 45-905, 45-907, 45-908, 45-1003, 45-1502 to 45-1506, and 45-1507 to 45-1515.

History.

1957, ch. 181, § 10, p. 345; am. 1990, ch. 401, § 4, p. 1122; am. 2010, ch. 249, § 1, p. 639; am. 2013, ch. 174, § 1, p. 403.

Amendments.

The 2010 amendment, by ch. 249, added the subsection (1) designation and therein added the last sentence; and added subsection (2).

The 2013 amendment, by ch. 174, substituted “prior to the trustee’s sale” for “prior to the recordation of the trustee’s deed upon sale” at the end of the first sentence in subsection (2).

Legislative Intent.

Section 5 of S.L. 1990, ch. 401 read: “The legislature finds and declares that the following referred to amendatory provisions contained in this act are merely clarifications of existing law and are not intended to be and are declared not to be changes in existing law:

“a. The sentence added to subsection (3) of section 45-1505, Idaho Code;

“b. The changes reflected in subsections (2)(a), in the first phrase of subsection (2)(b), in subsection (13) and added subsection (14) of section 45-1506, Idaho Code;

“c. The changes reflected in Section 4 [§ 45-1510] of this act; and

“d. Various mere semantical changes and corrections of obvious grammatical and typographical errors.”

Federal References.

The U.S. bankruptcy code, referred to in the introductory paragraph in subsection (2), is codified as 11 U.S.C.S. § 101 et seq.

Fictious Grantee.

In order that an instrument may be operative as a deed conveying title to, or interest or estate in, land, the grantee named in the deed must be a person, natural or artificial, in existence at the time of conveyance and capable of taking title. A deed to a fictitious grantee, or which names as grantee a person who has no existence, is inoperative and void. Kempton-Baughman v. Wells Fargo Bank, N.A., 162 Idaho 174, 395 P.3d 393 (2017).

Good Faith Requirement.

Although a credit bid used by a purchaser at a trustee’s sale was the equivalent of a cash sale, the sale was void because the trustee failed to comply with notice provisions of§ 45-1506A. If the deed transferee knew of the deficiencies, it would not be entitled to bona fide purchaser protections set forth in this section. Fed. Home Loan Mortg. Corp. v. Appel, 143 Idaho 42, 137 P.3d 429 (2006).

Rights and Duties of Creditor.

Holders of a promissory note, secured by a deed of trust, had a right to sue on their note, and this right was unaffected by the fact that they did not notify the county recorder of their interest in bank’s foreclosure proceedings; this section indicates that a creditor has no “duty” to keep informed of a pending foreclosure action, and the wording of the statute reveals that a creditor has a right, not an obligation, to be notified of a foreclosure sale. Tanner v. Shearmire, 115 Idaho 1060, 772 P.2d 267 (Ct. App. 1989).

Action on Debt.

Applicability.

Holders of a promissory note, secured by a deed of trust, were not precluded from obtaining a judgment on their note because the total indebtedness owed by the makers at the time of their default did not exceed the fair market value of the property at the time of the foreclosure sale; this section deals with deficiency actions by a creditor whose debts have been partially satisfied by foreclosure proceedings and does not affect a creditor’s independent action to recover this indebtedness owed on the debtor’s promissory note. Tanner v. Shearmire, 115 Idaho 1060, 772 P.2d 267 (Ct. App. 1989). Applicability.

This section affords no authority for the proposition that the holder of an unrecorded second deed of trust on a building secured as collateral should receive the protection of the antideficiency statute when he is sued on a guaranty agreement by which he has given a personal guaranty on the loan taken by a corporation for construction of the building. First Sec. Bank v. Gaige, 115 Idaho 172, 765 P.2d 683 (1988).

This section applies to claims by a creditor secured by a deed of trust for the balance due after a deed of trust sale; the protection is given to the borrower-grantor who gives the security interest described in the deed of trust, but not to guarantors. First Sec. Bank v. Gaige, 115 Idaho 172, 765 P.2d 683 (1988).

Holders of a promissory note secured by a deed of trust, who sued for a money judgment on the note, were not subject to the statutory limitations applicable to a deficiency action following foreclosure; the time limit provided for in this section applies to deficiency actions resulting from foreclosure sales; it does not apply to a creditor’s action on the debt which is independent of any foreclosure proceedings; under these circumstances, a creditor has five years in which to bring an action upon his promissory note, as provided for in§ 5-216. Tanner v. Shearmire, 115 Idaho 1060, 772 P.2d 267 (Ct. App. 1989).

The protection in this section extends only to the borrower-grantor who gives the security interest in deed of trust. Willis v. Realty Country, Inc., 121 Idaho 312, 824 P.2d 887 (Ct. App. 1991).

Because the time period within which the mortgage company could have sought a deficiency judgment had long passed, the owners failed to show an accounting could be relevant to any issues in the case. PHH Mortg. Servs. Corp. v. Perreira, 146 Idaho 631, 200 P.3d 1180 (2009).

When a bank foreclosed on a mortgage on a cottage on land leased from the Idaho department of lands, the bank’s deficiency claim was barred because (1) the cottage was real property, (2) the lease was not substantially valueless, (3) the bank had to first foreclose on the mortgage, (4) the claim was not asserted within three months of foreclosing, and (5) the claim did not relate back to original or first amended complaints, under which the claim would have been timely. Idaho First Bank v. Bridges, 164 Idaho 178, 426 P.3d 1278 (2018).

Construction.

The “difference” contemplated by this section is obviously that created where property is sold at a foreclosure sale to a beneficiary or other purchaser at a price which is less than the balance of the indebtedness secured by the deed of trust being foreclosed. Alpine Villa Dev. Co. v. Young, 99 Idaho 851, 590 P.2d 578 (1979).

Section 45-1505 and this section are in pari materia and must be construed together. Frontier Federal Sav. & Loan Ass’n v. Douglass, 123 Idaho 808, 853 P.2d 553, cert. denied, 510 U.S. 917, 114 S. Ct. 309, 126 L. Ed. 2d 257 (1993).

Costs Recoverable by Beneficiary.

Fair Market Value.

Expenses of the trustee’s sale, including a reasonable charge by the trustee and a reasonable attorney’s fee incurred up to the time of sale, interest accrued from the date of sale to the date of judgment at the rate provided in the promissory note, and costs of the action for a deficiency and reasonable attorney fees incurred in the action were recoverable by the beneficiary in an action to obtain a deficiency judgment. Farber v. Howell, 111 Idaho 132, 721 P.2d 731 (Ct. App. 1986). Fair Market Value.

The district court was correct in not accepting construction cost as the equivalent of fair market value in a suit for a deficiency judgment following a nonjudicial foreclosure sale of property subject to a deed of trust. Logan v. Grand Junction Assocs., 111 Idaho 670, 726 P.2d 782 (Ct. App. 1986).

The district court committed reversible error in holding that the plaintiffs failed in their burden to prove a deficiency because the experts were unable to agree on a particular figure; the district court must reconsider, compare and weigh the evidence as a fact finder and determine the fair market value of the property in question. Logan v. Grand Junction Assocs., 111 Idaho 670, 726 P.2d 782 (Ct. App. 1986).

Judicial Foreclosure.

Where beneficiaries of deed of trust opted for judicial foreclosure, rather than foreclosure by advertisement and sale, the court properly determined the amount of the deficiency judgment by proceeding under§ 6-108, rather than under this section. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984).

Notice of Trustee’s Sale.

A beneficiary was not precluded from recovering a statutory deficiency judgment allowed by this section by waiver or estoppel because the notice of trustee’s sale stated that “the beneficiary elects to sell or cause the trust property to be sold to satisfy said obligation.” Frontier Federal Sav. & Loan Ass’n v. Douglass, 123 Idaho 808, 853 P.2d 553, cert. denied, 510 U.S. 917, 114 S. Ct. 309, 126 L. Ed. 2d 257 (1993).

Obligation on Deficiency Not Discharged.

Where guarantors of partnership loan were limited partners in company which had been holder of the property for which a deed of trust had been given to secure the loan, and by the terms of partnership agreement of the company that held the property had no right to receive specific property other than cash for their contribution, and the law in effect at time of action provided that “[a] limited partner’s interest in the partnership is personal property,” the guarantors had no real property interest which was subject to foreclosure, and therefore the deficiency statute was inapplicable and bank’s failure to seek a deficiency judgment against the principals within the statutorily prescribed 90 days did not discharge the guarantors from their obligation on the deficiency by operation of law. First Interstate Bank v. Gill, 108 Idaho 576, 701 P.2d 196 (1985).

Property Owner’s Opinion as to Value.

In determining the fair market value of the property, the property owner has the right to render an opinion concerning the value of his property. Evans v. Sawtooth Partners, 111 Idaho 381, 723 P.2d 925 (Ct. App. 1986).

Purchase Offer by Third Party.

In determining the fair market value of the property, the district judge did not err by admitting evidence of a third party’s offer to purchase the property several months before the trustee’s sale, where the evidence was reliable, nonspeculative and free from hearsay, confrontation or other problems. Evans v. Sawtooth Partners, 111 Idaho 381, 723 P.2d 925 (Ct. App. 1986).

Simultaneous Foreclosure.

Where acceptable to the mortgagees, there is no impediment to ordering a simultaneous foreclosure; the foreclosure sale would result in each party being reimbursed by priority to the extent of the proceeds, neither would receive a redemption right, and each would receive a deficiency to the extent his or her debt was not satisfied, with appropriate credit being given for the reasonable value of the security. First Sec. Bank v. Stauffer, 112 Idaho 133, 730 P.2d 1053 (Ct. App. 1986).

Sufficient Proof of Value.

Where there was evidence of an offer of $325,000, one appraiser valued the property at $265,000, and another appraiser valued the property at $340,000, there was sufficient evidence to support the judge’s finding that the property was worth at least the amount of the indebtedness at the time of the trustee’s sale, approximately $317,000. Evans v. Sawtooth Partners, 111 Idaho 381, 723 P.2d 925 (Ct. App. 1986).

Waiver of Defense.

A guarantor may legally contract to waive a defense provided by anti-deficiency judgment statute. Valley Bank v. Larson, 104 Idaho 772, 663 P.2d 653 (1983).

Where guarantor of loan expressly waived any right to require creditor to proceed against the principal obligor, or to pursue any other available remedy, such language was broad enough to include waiver of a defense that creditor failed to seek recovery for the deficiency from debtor within the three-month time period prescribed by this section. Valley Bank v. Larson, 104 Idaho 772, 663 P.2d 653 (1983).

Delivery.

A deed of trust is a conveyance of real property and, to be valid, requires delivery of the instrument. Defendant A v. Idaho State Bar, 132 Idaho 662, 978 P.2d 222 (1999).

Cross References.

Mortgage foreclosure proceedings,§ 6-101 et seq.

Accrual of Interest.

When a tender properly conditioned on delivery of a reconveyance deed has been made, no further interest accrues on the debt, regardless of the length of time that the trustee may take to deliver the reconveyance. Brinton v. Haight, 125 Idaho 324, 870 P.2d 677 (Ct. App. 1994).

A tender of full payment of the debt, conditioned on delivery of a reconveyance deed, need not include a tender of the trustee’s fee in order to be effective to halt further accumulation of interest. Brinton v. Haight, 125 Idaho 324, 870 P.2d 677 (Ct. App. 1994).

Payment Contemporaneous With Conveyance.

A grantor of a deed of trust may condition a tender of full payment upon the contemporaneous delivery of a deed or reconveyance, and that condition does not vitiate the tender’s effectiveness to terminate the accrual of interest. Brinton v. Haight, 125 Idaho 324, 870 P.2d 677 (Ct. App. 1994).

Trustee’s Fee.

Cited

A debtor’s right to a deed of reconveyance is not contingent upon payment of a trustee’s fee which is not part of the debt secured by the deed to trust. Brinton v. Haight, 125 Idaho 324, 870 P.2d 677 (Ct. App. 1994). Cited Murr v. Selag Corp., 113 Idaho 773, 747 P.2d 1302 (Ct. App. 1987).

Cross References.

Mortgage foreclosure proceedings,§ 6-101 et seq.

Commencement of Limitation Period.

Where the beneficiaries received, on November 8, 2012, a partial payment on a trust deed note with an original maturity date of June 28, 2006, and applied that payment to the debt, that partial payment restarted the five-year statute of limitation on any action on the note. Monitor Fin., L.C. v. Wildfire Ridge Estates, LLC, 164 Idaho 555, 433 P.3d 183 (2019).

Prior Laws.

Former§§ 45-1601 to 45-1607, relating to seed liens, which comprised S.L. 1959, ch. 152, §§ 1 to 7, p. 349, were repealed by § 1 of S.L. 1989, ch. 359. For present comparable law, see§ 45-301 et seq.

Compiler’s Notes.

S.L. 1989, ch. 359, § 3, provided that “this act shall not take effect unless and until a sufficient appropriation to support its implementation is passed for the fiscal year 1990.” An appropriation was made from the general appropriation to the Secretary of State in order to implement this act and therefore it has gone into effect.

ALR.

§ 45-1602. Contract notice.

1. During the foreclosure period described in section 45-1506, Idaho Code, any contract or agreement with the owner or owners of record that involves the transfer of any interest in residential real property, as defined in section 45-525(5)(b), Idaho Code, subject to foreclosure must be in writing and must be accompanied by and affixed to the following notice in twelve (12) point boldface type and on a separate sheet of paper no smaller than eight and one-half (8 ½) inches by eleven (11) inches:

History.

I.C.,§ 45-1602, as added by 2008, ch. 192, § 1, p. 601; am. 2009, ch. 136, § 2, p. 417.

Prior Laws.

Former§ 45-1602 was repealed. See Prior Laws,§ 45-1601.

Amendments.

The 2009 amendment, by ch. 136, in subsection (1), deleted “canary yellow or some similarly colored yellow” following “on a separate sheet of” just prior to the notice.

Compiler’s Notes.

The URL for information about foreclosure on the HUD website, referred to in the second paragraph of the “Notice” in subsection (1), is inoperative. Information about foreclosures may be found at https://www.hud.gov/topics/avoiding foreclosure/foreclosureprocess .

The website for the office of the attorney general, referred to in the second paragraph of the “Notice” in subsection (1), can be found at https://www.ag.idaho.gov .

For further information on HUD housing counselors, see https://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm .

Prior Laws.

Former§ 45-1603 was repealed. See Prior Laws,§ 45-1601.

Prior Laws.

Former§ 45-1604 was repealed. See Prior Laws,§ 45-1601.

Amendments.

The 2013 amendment, by ch. 54, substituted “section 28-41-301” for “section 28-41-301(37)” in subsection (1).

The 2015 amendment, by ch. 244, substituted “sections 26-31-101” for “sections 26-3101” near the end of subsection (3).

Prior Laws.

Former§ 45-1605 was repealed. See Prior Laws,§ 45-1601.

Livestock.

Livestock are not agricultural products under subsection (1). Farmers Nat’l Bank v. Green River Dairy, LLC, 155 Idaho 853, 318 P.3d 622 (2014).

Applicability.

Plain language of the first sentence does not provide any basis for a commodity producer or dealer to maintain a lien right in livestock, as lien rights are extended only to agricultural products and the proceeds of the sale of agricultural products. Farmers Nat’l Bank v. Green River Dairy, LLC, 155 Idaho 853, 318 P.3d 622 (2014).

Because the lien created by this section only extends to agricultural products and the proceeds of the sale of the agricultural product, the district court erred in concluding that the sellers had an agricultural products lien on the buyer’s livestock, as livestock are not agricultural products under§ 45-1801(1). Farmers Nat’l Bank v. Green River Dairy, LLC, 155 Idaho 853, 318 P.3d 622 (2014).

Cross References.

Secretary of state,§ 67-901 et seq.

Amendments.

This section was amended by two 1989 acts, ch. 4, § 1, and ch. 265, § 2, which are identical.

Cross References.

Secretary of state,§ 67-901 et seq.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

This section was enacted by two identical 1989 acts.

Effective Dates.

Section 3 of S.L. 1989, ch. 4 declared an emergency. Approved February 21, 1989.

Section 4 of S.L. 1989, ch. 265 declared an emergency. Approved April 3, 1989.

Attorney Fees.

Bank was denied attorney fees under this section, where its claim that it had a lien in the buyer’s livestock was not a legitimate claim for an agricultural commodity lien. Farmers Nat’l Bank v. Green River Dairy, LLC, 155 Idaho 853, 318 P.3d 622 (2014).

Cross References.

Secretary of state,§ 67-901 et seq.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification in not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, chapter 205 became effective as prescribed therein.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in Section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification is not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, chapter 205 became effective as prescribed therein.

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in Section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification is not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, chapter 205 became effective as prescribed therein.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in Section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification is not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, chapter 205 became effective as prescribed therein.

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in Section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification is not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, chapter 205 became effective as prescribed therein.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in Section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification is not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, chapter 205 became effective as prescribed therein.

Relationship to Other Laws.

The five-year limitation period that governs certain state liens under this section does not apply to medical assistance liens filed under§ 31-3504(4). In re Hendricks, 2010 Bankr. LEXIS 632 (Bankr. D. Idaho Mar. 1, 2010).

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in Section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification is not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, chapter 205 became effective as prescribed therein.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in Section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification is not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, chapter 205 became effective as prescribed therein.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in Section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification is not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, chapter 205 became effective as prescribed therein.

Effective Dates.

Section 31 of S.L. 2001, ch. 208 provided that the act should take effect on and after July 1, 2001.

Cross References.

Secretary of state,§ 67-901 et seq.

Amendments.

The 2012 amendment, by ch. 183, added subsections (4) and (5) and renumbered former subsection (4) as subsection (6).

Compiler’s Notes.

Section 10 of S.L. 1997, ch. 205 read: “Notwithstanding the effective dates specified in Section [Sections] 1 through 9 of this act, nothing in this act shall take effect unless the secretary of state shall certify to the Idaho Code Commission that he has received a sufficient appropriation to provide for the development of the technology required to implement the provisions of this act. If the certification is not made by the twenty-first day after the adjournment sine die of the First Regular Session of the Fifty-fourth Idaho Legislature, this act shall be null and void.”

The Secretary of State has so certified to the Idaho Code Commission and, thus, S.L. 1997, Chapter 205 became effective as prescribed therein.

The bracketed insertion at the end of subsection (5) was added by the compiler to supply the probable intended reference.

Effective Dates.

Section 2 of S.L. 2012, ch. 183 declared an emergency. Approved March 29, 2012.