Benedict v. Citizens National Bank of Casper

• Decision Date: 09 August 1932
• Docket Number: 1711
• Citation: 13 P.2d 573,44 Wyo. 466
• Parties: BENEDICT, ET AL. v. CITIZENS NATIONAL BANK OF CASPER
• Court: Wyoming Supreme Court

13 P.2d 573

44 Wyo. 466

BENEDICT, ET AL. v. CITIZENS NATIONAL BANK OF CASPER

No. 1711

Supreme Court of Wyoming

August 9, 1932

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Suit by the Citizens National Bank of Casper, a corporation, against Stanley Benedict and others. Judgment for plaintiff, and defendants bring error.

Affirmed.

For the plaintiffs in error there was a brief by Messrs. Hagens &amp Wehrli, of Casper, Wyoming, and oral argument by Mr. William Wehrli.

When plaintiff acquired both the legal and equitable title the latter became merged in the former and the mortgage and debt for which it was given as security were extinguished. Words &amp Phrases, Vol. 5, p. 4492; 21 C. J. 1033; 46 A. L. R. 329; 41 C. J. 722, Sec. 768; Lumber Co. v. Co., 119 S.W 822; Drury v. Holden, 13 N.E. 547; Belk v. Fossler, 96 N.E. 15; Singleton v. Singleton, 38 S.E. 462; Siegel v. Borland, 60 N.E. 863; Inves. Co. v. Nordin, 52 N.W. 899; Bank v. Sloan, 66 N.W. 91; Moore v. Olive, 87 N.W. 720; Price v. Rea, 60 N.W. 208; Wonderly v. Siessler, 93 S.W. 1130; Cook v. Bailey, 23 A. 370; Fretwell v. Branyon, 45 S.E. 157; Sanderson v. Turner, (Okla.) 174 P. 763; Bull v. Smith, (N. D.) 178 N.W. 426; Hult v. Temple, 208 N.W. 70; Shirk v. Whitten, 31 N.E. 87; Putnam v. Collamore, 120 Mass. 454; Gardner v. Astor, 3 Johns. Ch., (N. Y.) 53; Artz v. Yeager, (Ind.) 66 N.E. 917. Demand for payment of the promissory note sued upon, was not made within a reasonable time after its assignment to the plaintiff; 3999-4037 C. S. 1920; 8 C. J. 525, 535; Bank v. Oil Co., (Wyo.) 244 P. 372; Graul v. Strutzel, (Ia.) 6 N.W. 119; Jones v. Robinson, 11 Ark. 504; Rosson v. Carrol, 16 S.W. 66; Turner v. Mining Co., 43 N.W. 149; State v. Foley, 39 A. 650; Bank v. Schmidt, 152 S.W. 101; Co. v. Miller, 113 N.E. 447; Bassenhorst v. Wilby, 13 N.E. 75; Sec. 4126 C. S. 1920; Bank v. Zimmerman, 77 N.E. 1020; Merritt v. Jackson, 62 N.E. 987; Secs. 4035-7, 4190, C. S. 1920. Notice of dishonor was not given defendant White as required by law. Immediately after demand upon the Benedicts for payment, and their refusal to pay, it was necessary for the plaintiff to give notice of dishonor to the defendant White, and if such notice of dishonor was not given, White is released. Sec. 4029 C. S. 1920; 8 C. J. 673; Salomon v. Co., 31 A. 602; Bank v. Atwater, 58 N.E. 763; Bank v. Bental, 113 P. 708. Under Sec. 4022 C. S. 1920; the endorser White is discharged from liability.

For the defendant in error there was a brief by E. E. Enterline, Madge Enterline, and Casey & McNally, all of Casper, Wyoming, and oral argument by Mr. E. E. Enterline.

No complaint was made in the brief of defendant that the findings were not sustained by sufficient evidence nor that the conclusions of law were erroneous. In accepting the findings of fact and conclusions of law, defendants are precluded from discussing the question of merger. Points not urged in brief are waived. Bank v. Ludvigsen, 8 Wyo. 230; C. B. & Q. R. R. Co. v. Lampman, 18 Wyo. 106; Wood v. Stevenson, 30 Wyo. 171; Worland v. Davis, 31 Wyo. 108; In Re Demorest's Estate, 41 Wyo. 189. Merger was not proven. Even considering that some evidence tending to establish merger was introduced, there was evidence to the contrary, and findings upon conflicting evidence will not be disturbed on appeal. Hilliard Co. v. Woods, 1 Wyo. 400; Fein v. Tonn, 2 Wyo. 113; Boburg v. Brahl, 3 Wyo. 325; Marshall v. Ruggs, 6 Wyo. 270; Starke v. State, 17 Wyo. 55; Worland v. Davis, 31 Wyo. 108; Huber v. Bank, 32 Wyo. 357; Oil Co. v. Gibson, 34 Wyo. 53; McMahon v. Midwest Ref. Co., 36 Wyo. 90; Simms v. Surety Co., 38 Wyo. 165; Fletcher v. Oil Syndicate, 38 Wyo. 329; Boyle v. Mountford, 39 Wyo. 141; Mulhern v. Mahs, 41 Wyo. 214; Kahn v. Ins. Co., 4 Wyo. 419; Rue v. Merrill, 42 Wyo. 511. There was no merger. Where a joint assignment of error fails as to one of the defendants it fails as to all of them. Greenawalt v. Co., 16 Wyo. 226; 3 C. J. 1352; Hanover Co. v. Wilson, 22 Wyo. 427; Meador v. Blundy, 34 Wyo. 397. White should not be permitted to contradict his contract of endorsement by parol evidence. Bushnell v. Elkins, 34 Wyo. 495. No demand for payment was required to be made upon the Benedicts, because the note was past due. Graves v. Burch, 26 Wyo. 192. The note having been made payable at plaintiff bank who held it, constituted a proper presentation and demand for payment. 4006 C. S.; Bank v. Oil Co., 34 Wyo. 405; Schlessinger v. Schultz, 96 N.Y.S. 383; Bank v. Piedmont, 91 S.E. 866. The notice given complied with the statute. 4029 C. S.; Doherty v. Bank, (Ky.) 186 S.W. 937. Under all of the facts and circumstances, defendant White is liable as an endorser. Sheffield v. Cleland, (Idaho) 115 P. 120; Schlessinger v. Schultz, supra. The Benedicts not having been called to testify, the presumption arises that their testimony, if given, would have been unfavorable to defendant White. Studebaker v. Hanson, 24 Wyo. 222; Jones v. Wittlin, 39 Wyo. 331.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is a suit by the Citizens National Bank of Casper, Wyoming, against Stanley Benedict, Kathleen Dodson Benedict and Henry L. White, upon a note executed by Stanley Benedict and Kathleen Dodson Benedict to Henry L. White on November 10, 1922, for the principal sum of $ 6500, and due six months after date. The note was secured by a mortgage dated November 10, 1922, also executed by Stanley Benedict and Kathleen Dodson Benedict, on a portion of Block 58 in the City of Casper, particularly described in the mortgage. This note and mortgage were transferred and assigned to the Citizens National Bank on September 12, 1923, by Henry L. White by endorsing the note as follows: "Pay to the order of Citizens National Bank of Casper. (signed) Henry L. White," and also by endorsing the mortgage as follows: "This mortgage sold to the Citizens National Bank of Casper, September 12, 1923. (signed) Henry L. White."

The petition asks for judgment upon the note and costs and attorney fees. An answer was filed on behalf of the defendants setting up affirmative defenses, to which a reply was filed by the plaintiff. The case was tried to the court without a jury. Judgment was rendered for the plaintiff on October 21, 1930, for the full amount of the note and for foreclosure of the mortgage. Upon request, the court made finding of facts and conclusions of law. Separate motions for a new trial were filed by the Benedicts and by Henry L. White. These motions were overruled. Thereupon this case was brought to this court by petition in error.

1. The first contention herein is that the mortgage indebtedness involved herein was extinguished by reason of the merger of the equitable with the legal title. The evidence in this case shows that C. H. Horstman, acting as trustee for the plaintiff bank, received, on December 15, 1922, a deed to the premises described in the mortgage above mentioned. The consideration expressed therein is $ 1.00. It is claimed that this deed conveyed absolute title; that it was made subject to the mortgage made to Henry L. White above mentioned; that the mortgage was assumed by the bank, and that accordingly the note and the mortgage sued upon herein must be considered as merged in the absolute title of the bank, in accordance with the principle stated in 46 A. L. R. 329, that:

"Where the owner of the fee acquires a paramount mortgage, the payment of which he has theretofore assumed, equity will not keep the charge alive, whatever may be his intention or the form of the transfer of the mortgage to him."

The principle seems to have no application, if the deed was taken merely as security and was, in effect, a mortgage. The court found that there was no merger; that, on the contrary, the deed to the bank was simply taken as security. Counsel for defendants do not directly argue that the finding of the court is not sustained by the evidence, and counsel for the plaintiff accordingly insist that there is nothing for us to consider. Without passing on that point, we shall assume that the question whether or not there is substantial evidence to support the trial court's finding is sufficiently questioned by the indirect arguments made. Horstman, vice president of the plaintiff bank, testified that the deed was taken as security, and not as an absolute deed. The Benedicts, who were most vitally interested in this point and who, if anyone, should have known as to whether or not the contention herein was true, were not called as witnesses, and hence, in the absence of explanation, the presumption may well be indulged in that had they been called to testify, their testimony would have been unfavorable to defendants on this point. Jones v. Wettlin, 39 Wyo. 331, 271 P. 217, 69 A. L. R. 840; Studebaker Corp. v. Hansen, 24 Wyo. 222, 250, 157 P. 582, 160 P. 336, Ann. Cas. 1917E, 557.

The deed made to the bank contains the following provisions:

"And the said parties of the first part, for their heirs, executors and administrators do covenant and agree to and with said party of the second part, his heirs, executors, administrators and assigns, that at the ensealing and delivering of these presents, they are well seized in said premises, in and of a good and indefeasible estate in fee simple. And that they are free from all incumbrances whatsoever, except mortgage for $ 6500.00 held by H. L. White and the taxes for the year 1922. And that they have good and lawful right to sell and convey the same, and that the said parties of the first part will and their heirs, executors, and administrators shall warrant and defend the same against all lawful claims and demands whatsoever."

Stress is laid by counsel for the defendants on the...