Black v. Beagle

• Decision Date: 13 July 1943
• Docket Number: 2247
• Citation: 139 P.2d 439,59 Wyo. 268
• Parties: BLACK ET UX. v. BEAGLE ET AL
• Court: Wyoming Supreme Court

139 P.2d 439

59 Wyo. 268

BLACK ET UX. v. BEAGLE ET AL

No. 2247

Supreme Court of Wyoming

July 13, 1943

Rehearing Denied 59 Wyo. 268 at 286.

APPEAL from District Court, Teton County; V. J. TIDBALL, Judge.

Action by Thomas Ray Black and Helen M. Black against Charles W Beagle and others to quiet title to realty. From a decree quieting title in plaintiffs, named defendant appeals.

Affirmed.

For the appellant, there was a brief and oral argument by Harry C Green, of Denver, Colorado, and Carleton A. Lathrop, of Cheyenne.

The action is one to quiet title to the southwest quarter of the southeast quarter of Section 28 in Township 41, north of Range 116, in Teton County. Calvin H. Beagle and Phoebe Beagle Reese demurred to the petition but, when it was overruled, they did not pursue their claims. Defendant Charles W. Beagle answered, the cause was tried, and judgment rendered in favor of plaintiffs, and Charles W. Beagle appeals. Appellant contends that the trial court was without jurisdiction, that the judgment is contrary to law and the evidence, and that the evidence is insufficient. The property was under an option of purchase. The main point in the case is governed by the decision in Frank v. Stratford-Handcock, 13 Wyo. 37. Appellant claimed that he was forced by court order to convey. The option to purchase called for performance within a fixed period, which was not done by the holders of the option. A conveyance to a dead man is void. Davis v. Hollings-worth (Ga.) 38 S.E. 827; 1 Devlin on R. E., 3rd Ed., 273; Plant v. Plant (Ga.) 50 S.E. 961; Butt v. Jackson (Ga.) 97 S.E. 854; Harriman v. Southam, 16 Ind. 190; Hunter v. Watson (Calif.) 23 Am. Dec. 543; McInery v. Beck (Wash.) 39 P. 130; Klopfine v. Cole (Ore.) 252 P. 708; Black v. Stephenson (Ark.) 267 S.W. 130; Baker v. Lane (Kans.) 109 P. 182; In re Reasons' Estate, 207 N.W. 863; Sec. 88-3305-3308, R. S. The Administrator's Deed was obtained upon court order and is not subject to collateral attack. 25 R. C. L., Sec. 3; Ford v. Libbey, 22 Wyo. 464. The language of Sec. 89-406 is not followed in the petition. City of Rock Springs v. Sturm, 39 Wyo. 494. The deed was made and delivered after the death of one of the grantees and was void as to decedent. Handy v. Handy, 115 S.E. 114; 54 A. L. R. 874; 1 Am. Jur., Page 929. One cannot claim title to land of an heir by adverse possession where, within the Statutory Period, he has recognized the title of the heir by accepting a conveyance from him of his interest. Carter v. Thompson (Ark.) 267 S.W. 790. The liquidation period is ten years for the conveying of real property. Sec. 89-406, R. S. A deed will pass such title as grantor may possess. Rue v. Merrill, 42 Wyo. 511. One cannot hold adversely to a cotenant. Fraud is never cured. Crawford v. Ferguson (Okla.) 115 P. 278. An interested party is incompetent to act as Notary Public. Wills v. Wood, 28 Kans. 400. A Petition for Administration was verified before plaintiffs' attorney. The petition was, therefore, insufficient. Gulf Co. v. Oil Co. (Tex.) 61 S.W.2d 185. There is no waiver or estoppel where the right to the benefit is conceded by the opposite party, or appellant is entitled thereto in any event. Yellowstone Co. v. Ellis, 55 Wyo. 63. Confirmation cannot supply lack of original jurisdiction. In compiling this brief, we have endeavored to rely upon the evidence where there is no conflict and the law relating thereto. But where there is a conflict, it must be substantial. Goldberg v. Miller, 54 Wyo. 485. We believe the judgment of the court below should be reversed.

For the respondents, there was a brief by A. R. McMicken and Eph. U. Johnson, of Rawlins, and oral argument by A. R. McMicken.

Respondents held adverse possession for a prescriptive period. Sec. 89-3901, R. S.; 1 Am. Jur. 793; City v. Sturm, 39 Wyo. 494. "Claim" and "color" of title may be present at the same time. Bolln v. C. & S. Ry. Co., 23 Wyo. 395; Bryant v. Cadle, 18 Wyo. 64. A deed to a dead man is void. Handy v. Handy (Ga.) 115 S.E. 114; Bank v. Kingery (Ga.) 154 S.E. 355; Thompson v. Co. (N. C.) 84 S.E. 289; Hutto v. Hutto (Fla.) 63 So. 914; Society v. Murray (Mo.) 47 S.W. 501; Hopkins v. Slusher (Ky.) 98 S.W.2d 932. Appellant had notice of possession by respondents and was ousted by respondents. 3 Blackstone, 191; 4 Kent 367; 9 R. C. L. 72; Lessees v. Courtney, 30 U.S. 319; Unger v. Mooney (Calif.) 21 P. 586; King v. Carmichael (Ind.) 43 A. S. R. 303; 27 A. L. R. 6; Dew v. Garner (Ala.) 92 So. 647; Joyce v. Dyer (Mass.) 109 A. S. R. 603; 27 A. L. R. 8; Clark v. Dires (Ia.) 160 N.W. 31; Waterman v. Moody (Vt.) 103 A. 325; 27 A. L. R. 12; Talbot v. Woodford (Va.) 37 S.E. 580; Johns v. Scobie (Calif.) 86 P.2d 820; Bourne v. Wielf (Wisc.) 150 N.W. 420; 121 A. L. R. 1411; Clayton v. Oil Co. (Tex.) 291 S.W. 597; Craven v. Craven (Nebr.) 94 N.W. 604. Respondents did not recognize, acknowledge, or concede any title in heirs of Zettie Beagle, or in appellant, Charles W. Beagle. Bitoni v. Co. (W. Va.) 120 S.E. 908; McAllister v. Hartzell (Ohio) 53 N.E. 715; Headerick v. Fritts (Tenn.) 24 S.W. 11; Smith v. Feneley (Mich.) 215 N.W. 353; Roper v. Cedar Works (N. C.) 84 S.E. 523; Ripley v. Miller (Mich.) 130 N.W. 345; Meyers v. Hope (Wisc.) 77 N.W. 720; Oldig v. Fisk (Nebr.) 73 N.W. 661; Manning v. Gregoire (Ore.) 191 P. 657. Appellant is equitably estopped to claim any interest in the property in question. Appellant and heirs of Zettie Beagle are estopped to question the capacity of the grantees to accept or take title. Thompson on Real Property, Vol. 5, Sec. 2602; 21 C. J. 1067; Carr v. Miller (Nebr.) 181 N.W. 557; Bank v. Lefferdink (Nebr.) 193 N.W. 916; Rinehart v. Co. (Mo.) 28 A. S. R. 441; Abrams v. State (Wash.) 88 P. 327; Shawawn v. Long (Mo.) 96 Am. Dec. 164; Coal Co. v. Kitchen (N. M.) 222 P. 658; Bliss v. Tedrick (S. Dak.) 127 N.W. 852; Rannels v. Rowe (Ark.) 145 F. 296; Henderson v. Lindley (Tex.) 12 S.W. 979; 64 A. L. R. 1557; Molina v. Romirez (Ariz.) 138 P. 17; Frisby v. Withers (Tex.) 64 A. L. R. 1558; Kellerman v. Miller (Pa.) 64 A. L. R. 1558; Vineyard v. Heard (Tex.) 167 S.W. 22. Appellant is barred from recovering any claimed interest by failure to assert any right within the 10 year period of liquidation. Sec. 89-4906, R. S. Action of trial court in denying motion of defendant for dismissal was in error. 4 Bancroft Code Pl. 3917; Durrell v. Abbott, 6 Wyo. 265. The Trial Court had jurisdiction to try the cause at bar and render and enter a judgment for the respondents herein. Miller v. New York Oil Co. (Wyo.) 235 P. 323. Many of the 22 questions or propositions discussed in brief are without merit. McCarty v. Helbling (Ore.) 144 P. 499; Sec. 88-3305, R. S.; Sec. 89-3309, R. S. A party is restricted on appeal to the theory adopted at the trial. James v. Kepford, 17 Wyo. 468. Appraisers in Laramie County did not know Jackson County land and were, therefore, incompetent as appraisers. Beagle made no attempt within a reasonable time to disaffirm any of Eby's acts. Kelly v. Eidam, 231 P. 578. An affidavit taken by an attorney in the case is void. Ramsey Motor Co. v. Wilson (Wyo.) 30 P.2d 482; Poston v. Delfelder, 39 Wyo. 163. The settlement of the estate of John R. Crisp, deceased, does not include land in controversy.

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

OPINION

BLUME, Justice.

This is an action to quiet title to the Southwest Quarter of the Southeast Quarter of Section Twenty-eight, in Township Forty-one North of Range One-Hundred-Sixteen West of the Sixth P. M. The action was brought by Thomas Ray Black and wife against Charles W. Beagle and others. The court entered a decree quieting the title in the plaintiffs and from that decree Charles W. Beagle alone has appealed. The record shows substantially the following facts:

On July 1, 1926 one Zettie Beagle, wife of Charles W. Beagle, appellant herein, was the owner of the land above described. On that day she leased the premises to James DeLoney and J. R. Crisp for the period of three years expiring on the first day of July, 1929 at a rental of $ 75. for the first year, $ 100. for the second year, and $ 125. for the third year. The lease contained the following provision: "Whereas, the said parties of the second part desire to build and erect cabins and other buildings and needed equipment on said premises for the purpose of operating a camping ground and conveniences for campers using the same, now, it is expressly stipulated and agreed, between the parties hereto, on or before the termination of the life of this lease the said second parties (lessees) may purchase said described premises for the sum of Fifteen Hundred Dollars, ($ 1500.00), cash payment; or in the event said parties of the second part do not so elect to purchase said premises, they may remove all improvements, as aforesaid, forthwith; provided, the said party of the first part reserves the right to purchase the same, on the termination of this lease, at the actual appraised valuation, then, of said improvements." Zettie Beagle died on January 26, 1928. James DeLoney testified among other things as follows:

"Q. Prior to the termination of this lease, what did you do?

"A. We filed a notice with Mr. Beagle that we intended to buy at the terms that the lease called for.

"Q. What did you do to carry that out?

"A. We notified Mr. Beagle that we were ready to take up our option.

"Q. And then what occurred?

"A. They told us that they would put it into the hands of the court * * * and it would be fixed right up for us. * * * We placed the money in the hands of the First National Bank at Laramie, a cashier's check for $ 1,500, which the lease called for, and it was placed there waiting for Mr. Beagle to fix up the deeds, and as soon as the deed would be fixed up the money...