Anderson v. Rasmussen

• Citation: 5 Wyo. 44,36 P. 820
• Parties: ANDERSON ET AL. v. RASMUSSEN
• Decision Date: 06 June 1894
• Court: United States State Supreme Court of Wyoming

36 P. 820

5 Wyo. 44

ANDERSON ET AL. v. RASMUSSEN

Supreme Court of Wyoming

June 6, 1894

Commenced in District Court January 27, 1893.

ERROR to the District Court for Sweetwater County, HON. JESSE KNIGHT, Judge.

ACTION by Ella L. Rasmussen against Conrad Anderson and Serena Anderson, for the recovery of certain real property. The material facts are fully stated in the opinion.

Reversed.

E. E Enterline, for plaintiffs in error.

The signature of the parties to the contract should have been identified. (1 Greenleaf Ev., Sec. 557; Reynolds Stephen Ev. p. 104; Weaver v. Whilden, 11 S.E. 686; Adams v. School Comrs., 20 A. 95.) A contract of purchase of lands gives a mere equitable title. (Newell on Ej., pp. 435, 680; Norton v. Dickson, 14 S.W. 905; Tarpey v. Deseret Salt Co., 5 Utah 205; Pendergast v. R. R. Co., 53.) Plaintiff having alleged a legal estate could not recover upon an equitable title. (Dearing v. Merrill, 49 N.W. 693; Tarpey v. Salt Co., supra; Seaton v. Son, 32 Cal. 481; O'Connell v. Dougherty, id., 458; Talbert v. Hopper, 42 id., 402; Pomeroy's Rem., Sec. 102; Folger v. Coward, 35 Cal. 650; Lawrence v. Webster, 44 id., 386; San Felipe v. Belshaw, 49 id., 655; Newell, 382; Daniel v. Lefevre, 19 Ark. 202; Adams on Ej., 247; Fleming v. Johnson, 26 Ark. 421; Smith v. Smith, 80 Cal. 323; 6 Am. & Eng. Ency. L., 245; Carroll v. Norwood, 5 Har. & J., 164; Baylor v. Neff, 3 McLean, 302; Buxton v. Carter, 11 Miss. 481; Dale v. Haneman, 12 Neb. 221; Upfalt v. Nelson, 18 id., 533; Kilteringham v. Blairtown, Etc., 66 Ia. 280; Page v. Cole, 6 id., 157.) An equitable defense can be proven under a general denial. (Armstrong v. Brownfield, 32 Kan. 116; Dale v. Haneman, supra; Newell, 681.) Plaintiff must recover upon the strength of her own title. (Allen v. Long, 16 S.W. 43; Bludom v. Coal Co., 89 Tenn. 166; O'Brien v. Bugbee, 46 Kan. 1; Eldon v. Doe, 6 Blackf. (Ind.), 341; Huddleston v. Garrett, 3 Humph., 629; Winn v. Cole, Walker (Miss.), 119; Hacker v. Harlemus, 74 Wis. 21; Chivington v. Colo. Spr. Co., 9 Colo. 597.)

John F. Mail, for defendant in error.

The signature to the contract was properly identified, although not by a witness who had seen the person write. (Error v. Hodson, 28 Ill.App. 445; Tucker v. Kellogg, 8 Utah 11.) The evidence of plaintiff was sufficient to establish her title.

CLARK, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

CLARK, JUSTICE.

This is an action brought in the court below by defendant in error for the recovery of possession of certain real property.

Her petition was drawn in accordance with the provisions of Sec. 2987, R. S., Wyo. and in it she alleged that she "has a legal estate in and is entitled to the possession of the following described premises, to wit: Lot numbered four (4) in block numbered five (5) in the Union Pacific Coal Company's North Addition to the Town of Rock Springs in the County of Sweetwater, and State of Wyoming, as said lot is laid down and described in the official plat of said North Addition now on file and of record in the office of the county clerk of said Sweetwater county, and said defendants have ever since the first day of December, A. D. 1892, unlawfully kept and still keeps the plaintiff out of possession thereof."

To this petition defendants interposed a general denial.

Upon the trial the plaintiff, to prove her estate in the premises and her right to the possession thereof, introduced in evidence over the objection of defendants a contract for the sale and purchase of the lot in question, dated October 19, 1892, purporting to have been made between the Union Pacific Coal Company, the vendor, and the plaintiff, Ella L. Rasmussen, the vendee, in which the vendor agreed upon the receipt of certain payments therein mentioned to be made by the vendee to convey said lot to her or her assigns by warranty deed. The contract contained an acknowledgment of the receipt of a first payment, and provided for a second and third payment on respectively October 19, 1893, and October 19, 1894. The contract was signed as follows: "The Union Pacific Coal Company, by B. A. McAllaster, Land Agent," and also by the vendee. Upon the offer of the contract in evidence, counsel for defendants objected to its being received for the reason that the signatures to it had not been identified. To overcome this objection evidence was introduced, which though very indefinite, still had some tendency to prove the signature of the Land Agent, B. A. McAllaster, and we do not think the court erred in overruling this specific objection. At the close of plaintiff's testimony, defendants moved to dismiss the action upon "the ground that there was no evidence to support plaintiff's action." This motion was overruled by the court, to which order defendants excepted. And thereupon defendants introduced evidence showing that they had been in the actual use and occupation of the premises since October, 1890. Upon the submission of the cause to the court a finding was made in favor of the plaintiff and judgment entered that she recover possession of the premises. Within due time motion for a new trial was made, one of the grounds for which was "that the decision is not sustained by sufficient evidence and is contrary to law." This motion was overruled and exception duly reserved. We think the motion for a new trial should have been sustained, upon the ground above stated. The evidence conclusively shows that from October, 1890, up to the time this action was commenced the defendants were in the actual use, occupation and possession of the premises; that the only claim which plaintiff had thereto is based upon the contract hereinbefore mentioned, and there is a total lack of evidence showing or tending to show any title of any kind whatever in the plaintiff's vendor, the Union Pacific Coal Company. It was essential for plaintiff to show some title to the property in her vendor before she could base any claim to the possession thereof upon the contract for the sale and purchase of the premises. Title to the premises in the Coal Company will not be presumed from the fact that it entered into the contract to convey the same at some future date.

There is also in the record a total lack of evidence showing or tending to show that B. A. McAllaster, land agent of the vendor, had any power or authority whatever from the vendor the coal company, to make a contract for the sale and...