Bingham v. Nat'l Bank of Mont.

• Decision Date: 06 October 1937
• Docket Number: No. 7620.,7620.
• Citation: 105 Mont. 159
• Parties: BINGHAM v. NATIONAL BANK OF MONTANA et al.
• Court: Montana Supreme Court

105 Mont. 159

BINGHAM
v.
NATIONAL BANK OF MONTANA et al.

No. 7620.

Supreme Court of Montana.

July 6, 1937.
Rehearing Denied Oct. 6, 1937.

Appeal from District Court, Meagher County, Fourteenth District; Stanley E. Felt, Judge.

Action by Minnie H. Bingham against the National Bank of Montana, a corporation, and others. A verdict was directed in behalf of defendants Russell Manger and Thomas A. Marlow. From a judgment on a verdict for all remaining defendants except named defendant, named defendant appeals.

Reversed and remanded, with direction.

ANGSTMAN, J., dissenting.

SANDS, C. J., dissenting from order denying rehearing.

C. A. Spaulding, of Helena, C. A. Linn, of White Sulphur Springs, and Weir, Clift, & Bennett, of Helena, for appellant.

Loble & Adair, of Helena, and F. W. Mettler, of Roundup, for respondent.

PER CURIAM.

Plaintiff brought this action to recover damages for interfering with her possession of certain real property situated in Meagher county. The action was brought against the defendant bank, Thomas A. Marlow, Richard Manger, Clara Manger, his wife, Russell Manger, and Manger Ranches, a copartnership. At the close of all the evidence a motion for directed verdict in behalf of Russell Manger and Thomas A. Marlow was granted. The cause was submitted to the jury as to the other defendants. The jury found in favor of all the other defendants save the bank. It found for plaintiff as against the bank, and fixed her damages in the sum of $15,000. Judgment was entered on the verdict. The bank's motion for new trial was denied, and it appealed from the judgment.

The important facts giving rise to the controversy may be briefly summarized as follows: Plaintiff and Frank R. Bingham intermarried in 1908. After their marriage plaintiff's father, Alexander Watson, advanced them the sum of $1,500 with which to purchase a homestead relinquishment covering the property here involved. On this homestead plaintiff and her husband lived and operated a stock ranch. They gave Alexander Watson their note in the sum of $1,500. The interest on the note has been paid, and plaintiff paid out of her own funds $1,000 on the note, and the remaining $500 was never paid.

Patent to the land ran from the United States to Frank R. Bingham. He also held certain land contracts of the Northern Pacific Railway Company. In 1924 Frank R. Bingham owed the defendant bank $31,000 which was unsecured. At the request of Thomas A. Marlow, president of defendant bank, Bingham and his wife (the plaintiff) executed and delivered to the bank a real estate mortgage covering the homestead. They also executed assignments of the Northern Pacific land contracts and a chattel mortgage on cattle belonging to each of them. Mr. Marlow was advised at the time of taking the security that plaintiff owned a half interest in the Bingham homestead, as well as a half interest in the Northern Pacific land contracts, and that each had separate cattle and separate brands.

On August 5, 1926, the bank commenced an action in Meagher county to foreclose the real estate mortgage covering the homestead. On September 7 thereafter Frank R. Bingham filed a voluntary petition in bankruptcy, and on September 20, 1926, was adjudged a bankrupt, and Addison K. Lusk was appointed trustee in bankruptcy. Plaintiff was not directly a party to these proceedings.

The bank, on December 10, 1926, filed its written consent that the bankruptcy court assume and exercise jurisdiction over and sell the property embraced in its mortgage. The trustee in bankruptcy offered the land for sale free and clear of liens. The bank became the purchaser at the sale. On February 2, 1927, the trustee in bankruptcy executed to the bank a trustee's deed. On March 24 of that year the bank deeded the property to Richard and Clara Manger, the deed being recorded May 20, 1927. On May 26, 1927, Richard and Clara Manger filed a petition in the United States District Court for a writ of assistance to enable them to obtain possession. On that day a writ of assistance was issued by the clerk directing the marshal to enter the land and to “eject and remove therefrom all and every person or persons holding or attempting to hold the same, or any part thereof, against the said Richard Manger and Clara Manger, and that you deliver to the said Richard Manger and Clara Manger, or their assigns, the possession of said pieces or parcels of land without delay. And them, the said Richard Manger and Clara Manger in such possession thereof from time to time keep and defend, and cause to be kept, maintained and defended, according to the tenor and true intent of said order of sale of the said court, and the said trustee's deed aforesaid.”

The deputy marshal went to the property and found plaintiff in possession. Plaintiff, upon being advised of the deputy marshal's mission, left the property to consult her attorney. The officer placed an agent of the Mangers in possession and made return to the court that the writ was executed. This return was filed on May 31, 1927. After consulting with her attorney, plaintiff returned to the homestead and resumed possession. On July 7 thereafter plaintiff moved the court to set aside the writ of assistance; this the court denied on July 22. On August 23, two deputy marshals again visited the homestead and sought to induce plaintiff to leave the premises, but this she refused to do. On August 24 the Mangers filed a petition in the United States District Court for an alias writ of assistance, which was on that day, by order of Judge Pray, issued by the clerk. This writ was subsequently, on January 12, 1928, held by the Honorable George M. Bourqin to be void ab initio. Armed with the alias writ, the United States marshal and his three deputies again went to the Bingham homestead. Finding the doors of the house locked, they left the place and returned again on August 30 and established camp in the bunkhouse on the property, and from then until September 20 remained on the property day and night.

Plaintiff testified that she was then pregnant and gave premature birth to a child, which, she said, was living when born but died shortly thereafter. While the deputy marshals were present, plaintiff was denied the right to receive visits by relatives and friends; the telephone wire was cut and she was unable to talk with any one by telephone. She testified that she was denied the right to send out letters or confer with her lawyer. Her hired man was arrested and handcuffed within her sight and placed in jail. Her livestock was not cared for, and she herself suffered from want of sufficient food and drink. Her brother finally gained admission after plaintiff had screamed from an upstairs window that “I have a dead baby up here.” He gained admission by breaking the lock, and found plaintiff on the bed with three guns by her side. She was given medical attention, and finally, on September 20, left the premises at the solicitation of her physician. After she left, the officers removed her furniture to the sheep sheds, the husband stating to them that he did not have time to remove it.

Defendant assigns fifty specifications of error, some of which challenge the sufficiency of the complaint and of the evidence. The gist of the complaint is that, while plaintiff was in the peaceable possession and occupancy of the premises in question, the defendants, their agents, servants, and employees, wrongfully and unlawfully came upon the premises, and wrongfully, unlawfully, forcibly, and by threats of bodily violence and other wrongful and unlawful means, method, and conduct, endeavored to compel plaintiff to leave, abandon, and remove from the premises, resulting in her illness and damage specifically alleged in detail. The complaint was sufficient to constitute a cause of action.

Did the proof sustain the cause of action as alleged? Did the proof establish that plaintiff at the time of the alleged wrongful acts was in the rightful possession of the premises? Plaintiff answers in the affirmative and rests her contention upon the claim that she owned an interest in the property by reason of having advanced most of the money for the purchase price thereof, of which the bank had knowledge. This evidence does not establish that she had an interest in the property. It will be remembered that the legal title to the property stood in the name of Frank R. Bingham. Section 6785, Revised Codes, provides: “When a transfer of real property is made to one person, and the consideration thereof is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.” This section, however, does not apply in a case such as this, under facts such as we have here, where the relationship between the person advancing the money and the person taking the legal title is that of husband and wife, the presumption, rebuttable in character, is that the conveyance is made as a gift. Clary v. Fleming, 60 Mont. 246, 198 P. 546;Humbird v. Arnet, 99 Mont. 499, 44 P.(2d) 756;McQuay v. McQuay, 81 Mont. 311, 263 P. 683. The presumption also is that any advancement by a wife to her husband is a gift. Bast v. Bast, 68 Mont. 69, 217 P. 345;Roman v. Albert, 81 Mont. 393, 264 P. 115.

It is here urged that section 6785 is all-inclusive, applying to every transaction without regard to existing relationships between the parties; but this court has consistently recognized, in instances of close relationship, that the presumption of a trust, as declared by section 6785, is supplanted by the presumption of a gift. The last decision applying this latter presumption was McLaughlin v. Corcoran, 104 Mont. 590, 69 P.(2d) 597. These decisions have all been by a unanimous court, although decided by an ever-changing personnel of the court. They have been rendered over a period of some sixteen years. Eight times since the first decision declaring the presumption of a gift was rendered has the Legislature met in regular...