Balch v. Arnold

• Decision Date: 19 December 1899
• Citation: 9 Wyo. 17,59 P. 434
• Parties: BALCH, ET AL., v. ARNOLD, ET AL
• Court: Wyoming Supreme Court

59 P. 434

9 Wyo. 17

BALCH, ET AL., v. ARNOLD, ET AL

Supreme Court of Wyoming

December 19, 1899

ERROR to the District Court, Albany County, HON. CHARLES W. BRAMEL Judge.

This was an action brought by the Laramie National Bank, Henry G Balch and Charles C. Frazer upon certain promissory notes owned by the bank, executed by Thomas Bird, and to foreclose a trust deed given to secure the payment of the notes. The defendant Constantine P. Arnold claimed under a prior mortgage, made to one Frederick Bell, and transferred to said Arnold. After reply and a demurrer thereto, the demurrer was sustained and judgment rendered upon the pleadings in favor of the defendant Arnold. The plaintiffs prosecuted error. The material facts are stated in the opinion.

Reversed.

Nellis E. Corthell, for plaintiffs in error.

The mortgagor was not estopped from claiming the after-acquired title, for first, such an estoppel must be reciprocal, and hence the mortgagee would be estopped from claiming anything not conveyed; and, second, the alleged estoppel can only operate to conclude the mortgagor from alleging the truth. The estoppel must be certain to every intent, and not be taken by argument or inference; and, third, there ought to be a precise affirmation by those claiming of that which makes the estoppel; and, where the facts are apparent in the same record (the mortgage itself) the adverse party is not estopped from taking advantage of the truth. (Coke Litt 352; Gilmer v. Poindexter, 10 How., 257). If the covenant should be in absolute, unqualified, and unlimited terms of warranty it would not raise an estoppel as to any other estate than that which the mortgage purported to convey. It is a covenant for title; not for quantity, quality or nature of the estate. It is a warrant that the tenure by which the estate is conveyed is the only one existing. Thus far we have considered the covenant as if the exception were not in it. Such a covenant makes a grantor responsible for an undivided half interest if he has only conveyed such an interest. A warranty of itself can not enlarge an estate. (2 Coke Litt., 385 f 19th. ed.) Rawle Cov., 244 et. seq.; 8 Ency. L., 70; 119 U.S. 156; 13 Wall., 418; 1 Saw., 238; 14 F. C., 1014; 7 F. 341; 59 Ark. 299; 25 Cal. 452; 94 Cal. 227; 99 Ill. 372; 122 id., 317; 139 Ind. 60; 18 Ia. 17; 105 Ia. 122; 14 Kan. 148; 57 id., 62; 34 Me. 299; 46 Me. 152; 24 Mass. 169; 119 id., 366; 26 N. H., 401; 30 N. J. L., 510; 9 Johns., 106; 11 O. S., 240; 14 id., 339; 35 W.Va. 155; 43 S.W. (Tex.), 50.) Where there is no breach of the covenants or no liability to an action on them, there is no estoppel. (Smiley v. Fries, 104 Ill. 416.) General words in the habendum or subsequent part of the deed can not control words of limitation in the grant or premises. (Hunter v. Patterson (Mo.), 44 S. W., 250.) Where there is a repugnancy between the printed and written clauses the latter must prevail. The court, by its ruling on the demurrer, closed its eyes to and could not enforce that rule. (Davidson v. Manson (Mo.), 48 S. W., 637; Clark v. Woodruff, 83 N.Y. 523; Hill v. Miller, 76 id., 32; Ins. Co. v. De Groff, 12 Mich. 124; Ins. Co. v. Cushaw, 41 id., 59; Schroeder v. Ins. Co., 46 Mo. 174; Blake v. Ins. Co., 12 Gray, 265.) Defendant's position involves a repugnancy between the granting clause and the warranty. In such case the doubt should be resolved in favor of the clause first in order of precedence. (Green Bay C. Co. v. Hewett, 55 Wis. 96.)

The real intention of the parties is to be sought, and that is the ultimate object of rules of interpretation. (Howe Studies Civ. L., 119; Lendorf v. Cope, 122 Ill. 317.) An interpretation should be adopted, which will, if possible, give effect to every part of the instrument. What is the meaning of the exception "title to the government"? A saving or exception carves out of the thing granted something which otherwise would be included in it. (Davenport v. Lamb, 13 Wall., 418; Lamb v. Burbank, 14 Fed. Cas., 989; Lamb v. Kamm, id., 1044; Lamb v. Wakefield, id., 1040; Fields v. Squires, Deady, 366.) A general warranty imports that the grantor will warrant and defend the title conveyed. In that sense the word has been applied indifferently to a warranty of the "premises" or of the "tract or parcel of land." (Holmes v. Danforth (Me.), 21 A. 845; Smith v. Hughes, 50 Wis. 620.) Purchasers are not required to search back of the time when their grantor acquired his title. (Bingham v. Kirkland, 34 N. J. E., 229; Calder v. Chapman, 52 Pa. St., 359; Farmer's L. & T. Co., 8 id., 361; Le Neve v. Le Neve, 2 Lead. Cas. in Eq., 211; Dodd v. Williams, 3 Mo. App., 278; Way v. Arnold, 18 Ga. 181; Faircloth v. Jordan, 18 Ga. 352.)

If Bird could not have contracted to procure and convey the title then held by the government, he could not be bound to such an obligation by implication merely.

If the warranty is to be construed as contended for by the defendant it would be void as against public policy. (Anderson v. Carkins, 135 U.S. 483; McCrillis v. Copp (Fla.), 12 So. 643; Oaks v. Heaton, 44 Ia. 116; Nichols v. Council, 51 Ark. 26; Hebart v. Brown, 65 F. 2; Mellison v. Allen, 30 Kan. 382; Blake v. Ballou, 19 Kan. 397; Biddle v. Adams, 5 Kan. App., 734; McCue v. Smith, 9 Mind., 252.) The mortgage should be rather held to be a conveyance of possessory right to public lands as authorized by our statutes. (R. S., § 76; Cooper v. Hunter (Colo.), 44 P. 944.) Action upon the mortgage was barred. (R. S., § 2366; id., 2374; Brinkerhoff v. Bostwick, 99 N.Y. 185.) Payment of interest by the mortgagor could not keep the statute from running as against subsequent incumbrancers or holder of the equity of redemption. Payment suspends the statute only as to the person making the payment. (Wood v. Goodfellow, 43 Colo. 185; Lord v. Morris, 18 Cal. 482; McCarthy v. White, 21 id., 495; Lent v. Morrill, 25 id., 500; Barber v. Babel, 36 id., 11; Sichell v. Corillo, 42 id., 493; Watt v. Wright, 66 id., 202; Cottrell v. Shepherd (Wis.), 57 N. W., 985; Wyman v. Russell, 4 Biss., 307; Day v. Baldwin, 34 Ia. 380; Arthur v. Screven (S. C.), 17 S. E., 640; R. S. § 2381; Cowhick v. Shingle, 5 Wyo. 96.)

C. P. Arnold, for defendant in error.

The intimation of counsel for plaintiffs in error that the demurrer ought to have been overruled, as proof might reach beyond the allegations, and that surrounding circumstances might furnish assistance to plaintiff, is untenable. The mortgage is set out in the pleadings, and the only light the trial court had and this court can have is the recitals of the mortgage. If there were such surrounding circumstances it was the duty of plaintiffs to have amended their reply if they desired to show them. In construing the mortgage the court is to understand the situation of the parties, and to ascertain the intention rather than to regard particular words. (Ford v. Beech, 11 Q. B., 866; Field v. Leiter, 118 Ill. 17; Noyes v. Nichols, 28 Vt. 159; Devlin on Deeds, Vol. 2, 835.) The whole writing should be considered. Every word is to be presumed as used for some purpose. (Parsons Cont., Vol. 2, § 502 Salisbury v. Andrews, 19 Pick., 250.) In case of doubt, the practical interpretation put upon the instrument by the parties is entitled to great weight. (Topliff v. Topliff, 122 U.S. 121.) Exceptions in a deed are taken favorably for the grantee. (Devlin on Deeds, Sec. 848; Am. Surety Co. v. Pareley, 170 U.S. 161.) The meaning of the exception quite clearly is that as the title was at the time in the government the grantor would not warrant against the government, but said that when the government should part with its title the grantor would then defend the grantee's right to the land. He did not except the title of the government, for that was the only title there was; he only excepted the title to the government--that is--the title so long as it remains in the government. It means that or nothing. A construction should not be adopted which makes the agreement an absurdity, and to mean nothing. Again, to make the warranty good, the grantor does buy the land after the government has parted with its title, and before the plaintiffs acquired their subordinate lien. That act shows how the grantor regarded his mortgage and his covenant.

The rule relied on as to notice by the record, does not prevail in this State. The recording acts expressly cover mortgages upon lands before the acquisition of title by the grantor. (R. S., Secs; 76, 1414, 1419.) If one without title mortgages land with covenants and the mortgage is recorded, and the mortgagor afterward acquires title, the mortgage gives priority over a subsequent purchaser in good faith. (Degman v. McCollum, 47 Mo. 372; Tefft v. Munson, 57 N.Y. 97; Philly v. Saunders, 11 O. St., 490; Douglas v. Scott, 5 O., 195; Crane v. Turner, 67 N.Y. 437; 2 Devlin on Deeds, § 721; 11 Ency. L., 2d ed., 416.) No public policy was encroached upon by the mortgage. (Hope v. Stone, 10 Minn. 141; Trenton v. Fidelity Co. (Ore.), 56 P. 1096; Norris v. Heald (Mont.), 29 P. 1121; Phelps v. Kellogg, 15 Ill. 231.) A mortgage is valid and may be foreclosed as long as the debt which it secures is not barred by the statute. (Wiltsie on Mort. Forec., 55, 64, 410; Jones on Mort., Vol. 2, 1202; Hughes v. Edwards, 9 Wheat., 489; Bank v. Woodman (Ia.), 62 N. W., 28; Cook v. Prendle, 63 N. W., 188; Brown v. Rockhold, 46 Ia. 282; Kerudt v. Porterfield (Ia.) 9 N. W., 322; Harris v. Mills, 28 Ill. 44; McMillan v. McCormick, 117 Ill. 79; Medley v. Elliott, 62 Ill. 533.

CORN, JUSTICE. POTTER, C. J., AND KNIGHT, J., concur.

OPINION

CORN, JUSTICE.

This was a suit upon certain promissory notes owned by the bank and executed by Thomas Bird, one of the defendants in the court below, and to foreclose a mortgage and a trust...