Boulter v. Cook
| Decision Date | 14 April 1925 |
| Docket Number | 1225 |
| Citation | 32 Wyo. 461,234 P. 1101 |
| Parties | BOULTER ET AL v. COOK [*] |
| Court | Wyoming Supreme Court |
Rehearing Denied 32 Wyo. 461 at 475.
ERROR to District Court, Fremont County; CYRUS O. BROWN, Judge.
Action by John W. Cook against Ray Boulter and another to quiet title and enjoin the foreclosure of a mortgage. Anna L. Cook was substituted for plaintiff who died during pendency of appeal. See also 31 Wyo. 373, 226 P. 447.
Judgment reversed and remanded.
T. S Taliaferro, Jr., & W. A. Muir for plaintiffs in error.
Plaintiffs failed to prove legal title or actual possession, 6234 C S. Clark v. Hubbard, 8 O. 385; Thomas v. White, 2 O. St. 547; Scott v. Kromer, 31 O. St. 300; Baldwin v. McDonald, 24 Wyo. 132. There was no change of possession from Hawkins to Cook, 17 Ency. p. 317; Hard v. Jones, 86 Ill. 313; an entry effected by collusion will not support a bill to quiet title; Wakefield v. Co., 85 Mich. 605, nor by act of trespass; Swayze v. Bride, 34 Mo.App. 414; nor by sharp practice Stetson v. Cook, 39 Mich. 750. The order of June 2, 1920 is void for want of jurisdiction. After overruling of demurrer a party may plead if the Court is satisfied that he has a meritorious claim or defense; Grover Co. v. Lovella Co., 21 Wyo. 237; Sec. 5926 C. S. does not apply; Mitter v. Coal Co., 206 P. 752; 28 Wyo. 439; refusal of the trial Court to permit further pleading is not an irregularity contemplated, Sec. 5923 C. S. Ralston v. Wells, 30 N.E. 784; Parrott v. Court, 20 Wyo. 494. In vacation proceedings the grounds must be first considered, 5928 C. S. McGinnis v. Bailey, 28 Wyo. 328. In the absence of a meritorious defense interference with the enforcement of a judgment is forbidden, 5929 C. S. Ames v. Brinsden, 25 Kans. 746. The decree of June 18th, 1920 is no bar in this case, irrespective of its validity. Purchasers in good faith are protected; 5925, 5929 C. S. The tax deed, unaccompanied by evidence of its validity, is inadmissible, 2893 C. S. Rhodes v. Gunn, 35 O. St. 349, 27 Ency. of Law 974. The petition did not state a cause of action, within the rule announced in Durell v. Abbott, 6 Wyo. 267, see also 26 O. St. 522.
G. J. Christie for defendant in error.
The decree appealed from was valid, 5923-5926 C. S. The service was in accordance with the statute, Follett v. Alexander, (Ohio) 50 N.E. 720. The contentions of plaintiff in error constitute a collateral attack, 15 R. C. L. 838. A judgment may be set aside at a subsequent term for irregularity or improper conduct in procuring it, and even if erroneously vacated the proceedings are not void; Whittaker's A. O. C. C. 911, 20, O. 344, 23 Cyc. 1062, 15 R. C. L. 839. The evidence showed that Cook took possession. The petition was sufficient, Durell v. Abbott, 6 Wyo. 265.
This is an action to quiet title brought on April 29, 1922, by John W. Cook, as plaintiff, against Ray Boulter and James H. Hawkins, as defendants.
The petition alleges that plaintiff is the owner and in possession of the SE 1/4 of the SW 1/4 of Section 27; NW 1/4 of Section 34; N 1/2 of the NE 1/4 and NE 1/4 of NW 1/4 of Section 33, in Township 31 North of Range 106, West of the 6th P. M., Fremont county, Wyoming, containing 320 acres of land; that the defendants have or claim to have some lien or title to said land adverse to plaintiff; that Ray Boulter advertised to foreclose a certain mortgage against said land but that said pretended mortgage is void. Plaintiff prays that said foreclosure be restrained and his title be quieted. Judgment was entered in favor of the plaintiff, from which said Ray Boulter has brought proceedings in error to this court. The plaintiff, having died during the pendency of the case in this court, Anna L. Cook, the executrix of his last will and testament, has been substituted in his stead and she will hereafter be referred to as defendant in error.
The facts in this case are substantially as follows: Said land was patented on October 9, 1906, to Joseph M. Boulter. On June 10, 1912, it was duly sold and conveyed to said Ray Boulter. On July 1, 1912, it was bought in by John W. Cook for $ 47.21, at a sale for delinquent taxes. On August 20, 1915, John W. Cook caused notice to be served on said Ray Boulter, the occupant of said premises, that on December 24, 1915, he would apply to the treasurer of Fremont county, to issue a tax deed to him for said premises. Thereupon, and on December 16, 1915, the Rock Springs National Bank and Ray Boulter, as plaintiffs, through T. S. Taliaferro, Jr., their attorney, brought an action against the treasurer of Fremont county and John W. Cook, as defendants, to restrain the issuance of such tax deed, alleging among other things that said Ray Boulter had often tried to redeem said land from the tax sale aforesaid, and had made a tender of the amount due. A temporary injunction was issued in said cause on December 20, 1915. On January 31st, 1916, a general demurrer was filed on behalf of said defendants, on the ground that the petition did not state facts sufficient to constitute a cause of action. Burns v. State, 25 Wyo. 491, 173 P. 55, 785, decided May 28, 1918, was then pending in this court and involved a question similar to that intended to be raised by said demurrer, and because of that fact nothing was done in said Rock Springs National Bank case until July 23, 1919, at which time a judgment was entered in said cause which (omitting caption) is as follows:
"Now on this 23rd day of July, 1919, this cause came on regularly to be heard by the court upon the petition of the plaintiff and the demurrer of the defendant herein; and the court having considered said pleadings and being now sufficiently advised in the premises, doth overrule the said demurrer, and the defendants and each of them failing to plead further in this cause and being now in default for an answer or other plea herein, and said default having been regularly taken and entered, and in consideration of the petition and of the affidavit verifying the same, and of the proof and facts upon which the temporary restraining order was issued herein; and the court being now sufficiently advised in the premises, doth make the said temporary restraining order heretofore issued in this cause permanent."
Said judgment was filed in the district court of Fremont county, on August 11, 1919. Nothing further was done in said case until April 7, 1920. On that date John W. Cook filed a motion, supported by affidavits, to open, vacate and set aside said judgment of July 23, 1919, upon the ground that the demurrer of defendants was overruled and decree rendered and entered against defendants without notice to him or his counsel and without giving him an opportunity to answer the said petition, although he had a good, lawful and equitable defense to said petition. Notice of said motion was duly served upon the Rock Springs National Bank and upon T. S. Taliaferro, Jr., and on May 22, 1920, said bank filed a disclaimer. No notice of said motion was served upon Ray Boulter personally, and he did not appear. John W. Cook and the treasurer of Fremont county duly filed an answer in said cause. On June 2, 1920, the court entered an order vacating and setting the decree of July 23, 1919 aside and permitting the defendants in said cause to appear therein and answer or defend, and granting the plaintiffs, namely said bank and Ray Boulter, fifteen days in which to file a reply. On June 18, 1920, no reply having been filed, the court entered a decree, finding that the premises above described were duly and regularly sold for taxes on July 1, 1912, duly and regularly levied thereon for the year 1911; that John W. Cook became the purchaser at said sale; that on August 20, 1915, said purchaser caused notice to be served upon said Ray Boulter, that he would apply for a tax deed for said premises on December 24, 1915, and further caused notice of said application to be published in the Wyoming State Journal, a newspaper printed and published in Fremont county, Wyoming and that said premises have not been redeemed from said tax sale. The temporary restraining order theretofore issued was dissolved, and the county treasurer of Fremont county, Wyoming, was authorized and directed to issue to John W. Cook, a tax deed to said premises. On July 6, 1920, a tax deed was issued accordingly, but is not incorporated in the record.
In the meantime and on October 27, 1919, Ray Boulter and his wife duly conveyed the said premises to James H. Hawkins, one of the defendants in the present action, for a valuable consideration, and on the same day, the latter and his wife executed a mortgage to Ray Boulter to secure the sum of $ 12,000, the remainder due on the purchase price. It is this mortgage which is sought to be declared invalid in the present action.
It is contended by the attorneys for the plaintiff in error, that the foregoing proceedings and facts were not introduced in evidence, although dictated into the record by W. A. Muir who acted as attorney for plaintiff in error. The contrary is maintained by the attorney for the defendant in error. Unless these facts and proceedings, as so dictated, are in evidence, no title to the premises in controversy has been shown to be in John W. Cook. We think, however, without stating the reasons therefor in detail, that it was intended to be stipulated by the parties that the proceedings and facts so dictated should be considered in evidence. The court so understood it, found the facts as hereinbefore mentioned, and based the judgment, which was rendered in the present case, entirely upon the judgment of June 18, 1920. The latter judgment is in the record only by reason of the stipulation dictated...
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