Boswell v. First National Bank of Laramie
| Decision Date | 07 December 1907 |
| Citation | 92 P. 624,16 Wyo. 161 |
| Parties | BOSWELL v. FIRST NATIONAL BANK OF LARAMIE |
| Court | Wyoming Supreme Court |
[Copyrighted Material Omitted]
Rehearing Denied February 10, 1908, Reported at: 16 Wyo. 161 at 211.
ERROR to the District Court, Albany County, HON. DAVID H. CRAIG Judge.
The First National Bank of Laramie, Wyoming, brought an action in replevin against N. K. Boswell. The defendant prosecuted error from a judgment for the plaintiff. The facts are stated in the opinion.
Affirmed.
H. V. S. Groesbeck, for plaintiff in error.
The power of attorney to the co-partner to execute chattel mortgages was inadmissible because improperly attested and acknowledged. The reference by initials to the party whose signature was attested is insufficient. A power of attorney must be executed with the formalities required by law. ( Though it permits the mortgaging of chattels only, it should be executed in the same manner as is required in case of a power to convey lands. (State v. Cowhick, 9 Wyo. 93.) The execution of the instrument was not established by sufficient proof, since there was no proof by the witnesses, nor that they were out of the jurisdiction. Every kind of private writing, except ancient documents, must be proved to have been made by the party whose act it purports to be in order to render it properly admissible in evidence. The certificate of acknowledgment must show that the grantor acknowledged the instrument to be his or her act and deed. ( This was not done in the case of Julia A. Bird, which renders her acknowledgment absolutely worthless. The acknowledgment of William J. Bird is entirely too informal and irregular to be legal, as it appears that he did not acknowledge it as his act or deed or for the uses and purposes therein set forth, which appears to be necessary. Each and every member of a co-partnership must execute and acknowledge a chattel mortgage for and on behalf of the co-partnership. (Sec. 2808, Rev. Stat.) As this was not done in person, Thomas Bird had no right to execute the chattel mortgages forming the basis of this action for the co-partnership of Bird Brothers, and even if he could do it as proxy or under power of attorney, which is extremely doubtful under the plain wording of our statute, it has not been established that he had the right from the other members of the co-partnership to execute the same for them.
But even if the pretended power of attorney was in evidence rightfully, Thomas Bird had no right, power or authority to mortgage any of the firm property to pay the debts of John Bird, not a member of such firm. His note, which Bird Brothers guaranteed, and which was included in the larger mortgage, was executed as a mere cover to the bank in order to save an open violation of the banking laws. John Bird received no consideration for this note.
The petition is insufficient and will not support a judgment in favor of the plaintiff. This is an inquiry always open in an appellate tribunal and for the first time. (A) The petition does not contain an allegation of venue, and this is necessary. (B) The petition alleges that the defendant "wrongfully" detains in his possession from the plaintiff the goods and chattels therein described. This is clearly insufficient. The petition must allege that the defendant "unlawfully" detains the property. It is true that the affidavit for the order of delivery or writ of replevin need but state that the defendant "wrongfully" detains the property, but in a judgment for plaintiff the jury must assess adequate damages for the illegal (not wrongful) detention. (Rev. Stat., Sec. 4156.) The affidavit for the order of delivery is no part of the petition and does not form part of the pleadings or the issues in the cause. Merely averring that the defendant wrongfully detains the property is a legal conclusion. (C) There is no allegation or proof that the bank ever had actual possession of the property, although a special ownership is averred. A special owner cannot maintain replevin unless he has had actual possession. A special property is not complete until actual delivery. (2 Nash. Pl. & Pr., 837, and cases cited.) The bank should have sought possession or made proper demand therefor before commencing the action.
Under the general denial, the defendant may show title in himself, and, in cases where plaintiff had not actual prior possession, defendant may disprove or dispute plaintiff's title by showing title in a stranger. In replevin plaintiff must have a special ownership in the property in controversy, or be its owner. He must be entitled to the immediate possession. Defendant must wrongfully and unlawfully detain the same. Plaintiff must recover on the strength of his own title, and the title must be such as to give him the legal right to possession. (Harding v. Eldridge (Mass.), 71 N.E. 115; Beirman v. Riethorne (N. J.), 58 Am., 1083; Robb v. Dobrinske, 14 Okla. 563.) Defendant is not estopped to deny plaintiff's title even though he pleads title in himself, and waives thereby the technical defense that he was not in possession at the commencement of the action, and the fact that he admits the execution of the instrument under which plaintiff claims does not preclude him from attacking its validity. (Culver v. Randle (Ore.), 78 P. 394; Robb v. Dobrinske, 14 Okla. 563; 10 N.W. 844; 91 N.Y.S. 552; 101 N.W. 61.) A general denial is sufficient to let in any legal defense, such as paramount title in the defendant or in third person. A general denial in code pleading admits any general or special matter constituting a defense. (Bank v. Frink (Neb.), 92 N.W. 916; Bayle v. Bayne, 20 Kan. 657; White v. Gemeny, 47 Kan. 741; Ry. Co. v. Gila Co. (Ariz.), 79 P. 913; Frunold v. Million, 74 S.W. 419; Janson v. Effey, 10 Iowa 227 (1859); Shadduck v. Stotts, 59 P. 39; D'Arcy v. Steuer, 179 Mass. 40; Jones v. McQueen, 13 Utah 178; Horkey v. Kendall, 73 N.W. 953; Holliday v. McKinne, 22 Fla. 153; Holmberg v. Dan, 21 Kan. 73; Towne v. Sparks, 23 Neb. 142; Cobbey on Replevin, 413, 785, 786; Burchinell v. Butters (Colo. App.), 43 P. 459; Best v. Stuart (Neb.), 67 N.W. 881; Conner v. Knott (S. D.), 66 N.W. 461; Wester v. Long, 63 Kan. 876; Thresher Co. v. Pierce, 74 Mo.App. 676; Gibson v. Mozier, 9 Mo. 256; Chamberlain v. Same, 1 Wash. 259; Timp v. Dockman, 32 Wis. 146; Delaney v. Canning, 52 Wis. 266.)
One who is a stockholder, as well as an officer, of a corporation is disqualified to take the acknowledgment of an instrument to which the corporation is a party, or in which it is financially or beneficially interested. (Bank v. Bank, 11 Wyo. 32.) The invalidity of the acknowledgment to the mortgages can be shown under defendant's general denial. If plaintiff be without title defendant may recover though title is not shown in himself. (Wilkins v. Wilson, 2 Hardesty, 117.) The plaintiff must have right to possession as well as title. (Gassell v. Doty, 73 Ill.App. 406; Clark v. West, 23 Mich. 424; Beldin v. Laing, 8 Mich. 500; Collier v. Yearwood, 5 Baxt., 581; Cobbey on Replevin, 785.)
The plea that the mortgages forming the basis of this suit were good as between the parties thereto cannot avail here, as we can show readily that they were void as to creditors; but we were prevented from so showing although it plainly appears and without dispute that the sheriff as receiver had possession of the property at the instance of one of the creditors in existence even before these mortgages were executed.
Proof of demand by plaintiff was necessary. (Wells on Replevin, 347; Rodgers v. Brittain, 39 Mich. 477; Caldwell v. Pray, 41 Mich. 307; 1 Cobbey on Ch. Mort., 453, 482, 737; Murchalter v. Mitchell, 27 S. C., 240; Simmons v. Jenkins, 76 Ill. 479; Keller v. Robinson, 153 Ill. 458; Kellogg v. Olsen, 34 Minn. 103; Black v. Pidgeon, 70 N.J.L. 802; Quinn v. Schmidt, 91 Ill. 84.) A bona fide purchaser of personal property from a wrongful taker is not liable in replevin by the lawful owner without demand first made. (Conner v. Comstock, 17 Ind. 90; Ledbetter v. Embree, 12 Ind.App. 617; Kellogg v. Olson, 34 Minn. 103; Barrott v. Warren, 3 Hill, 348; Millpaugh v. Mitchell, 8 Barb., 333.) Possession must be taken by a chattel mortgagee within a reasonable time, or he will lose his rights against creditors of the mortgagor with liens attaching subsequently to the default and before mortgagee has taken possession. This rule ought to be good in case of an innocent purchaser from a receiver under an order of court.
No title passed to Bird Brothers of the cattle purchased of Crumrine, the purchase price of which formed the bulk of...
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