Bryan v. Pinney

• Decision Date: 10 November 1892
• Docket Number: Civil 326
• Citation: 3 Ariz. 412,31 P. 548
• Parties: T. J. BRYAN, Plaintiff and Appellant, v. D. H. PINNEY et al., Defendants and Appellees
• Court: Arizona Supreme Court

31 P. 548

3 Ariz. 412

T. J. BRYAN, Plaintiff and Appellant, v. D. H. PINNEY et al., Defendants and Appellees

Civil No. 326

Supreme Court of Arizona

November 10, 1892

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kibbey Judge.

Affirmed.

Webster Street, and Ben Goodrich, for Appellant.

As an estoppel by judgment, the allegations show that the judgment of Kales v. Kales, administrator of J. M. Bryan, deceased upon which they rely, is absolutely void on its face. There can be no suit without adverse parties, and a judgment rendered in an action where the same person is both plaintiff and defendant is absolutely void, and cannot be the foundation of title. Bryan v. Kales, 134 U.S. 135 10 S.Ct. 435; Graham v. Harris, 5 Gill & J. 490; Hall v. Pratt, 5 Ohio 83; Page v. Patten, 5 Pet. 312; Paschall v. Hailman, 4 Gilm. 300; Denny v. Metcalf, 28 Me. 389; Barley v Harris, 8 N.H. 233, 29 Am. Dec. 650; Eastman v. Wright, 6 Pick. 320; Livingston v. Livingston, 2 Mill, 428, 12 Am. Dec. 684, where the question of an executor suing himself is passed upon, and also Pearson v. Nesbit, 1 Dev. & B. 315, 17 Am. Dec. 569; Griffith v. Chew, 8 Serg. & R. 17, 11 Am. Dec. 556; Blaisdell v. Ladd, 14 N.H. 129; Ford v. Whedbee, 1 Dev. & B. Eq. 16; Moffat v. Mullinger, 2 Chitty, 539, S. C. 2 Bos. & P. 124; Trustees Methodist Church v. Stewart, 27 Barb. 553; In re Armstrong, 69 Cal. 240, 10 P. 235; Brown v. Mann, 71 Cal. 192, 12 P. 51; Buchanan v. Meisser, 105 Ill. 643.

The phrase used by some of the courts that a person cannot sue himself at law means nothing more than that the law courts cannot adjust the respective rights and equities between plaintiffs and defendants who are interested on both sides of the same suit, as, for instance, where one partnership sues another, and some of the paities belong to both firms, and hence turn them over to courts of equity. Freeman on Judgments, sec. 158; 1 Herman on Estoppel, sec. 138; Corcoran v. Chesapeake etc. Co., 94 U.S. 741.

The law is, that identity of name is prima facie identity of person. 1 Greenleaf on Evidence, sec. 575, note; Taylor on Evidence, sec. 1860; Thompson v. Manrow, 1 Cal. 428; Moll v. Smith, 16 Cal. 554; Garwood v. Garwood, 29 Cal. 520; Brown v. Metz, 33 Ill. 343, 85 Am. Dec. 277; Gitt v. Watson, 18 Mo. 274; State v. Moore, 61 Mo. 276; Godell v. Hibbard, 32 Mich. 55; Campbell v. Wallace, 46 Mich. 320, 9 N.W. 432; Jackson v. King, 5 Cow. 239, 15 Am. Dec. 468; Jackson v. Cody, 9 Cow. 149; and the burden of disproving it is on the defendants. See two cases last cited.

That evidence aliunde the record is admissible to show identity, and that such proof does not contradict the record is settled law. Garwood v. Garwood, 29 Cal. 520.

The district court had no jurisdiction to try the case of Kales v. Kales, administrator, No. 326, and the pretended judgment in that case is an absolute nullity. Jurisdiction is defined to be the power to hear and determine the subject-matter between parties to a suit; Rhode Island v. Massachusetts, 12 Pet. 718, and one of the essentials to its exercise is that proper parties must be before it. Munday v. Vail, 5 Vroom, (34 N. J. L.) 422. It follows of necessity that without proper adverse parties, the court had no jurisdiction.

To create an estoppel in pais, it must appear, first, that the party making the admission by his declaration or conduct was apprised of the true state of his own title. Second, that he made the admission with the express intention to deceive or with such careless and culpable negligence as to amount to constructive fraud. Third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge. And fourth, that he relied directly on such admission, and will be injured by allowing its truth to be disproved. Biddle Boggs v. Merced Min. Co., 14 Cal. 367; Lux v. Haggin, 69 Cal. 266, 10 P. 674; Brant v. Virginia Coal and Iron M. Co., 93 U.S. 336; Steel v. Smelting Co., 106 U.S. 456, 1 S.Ct. 389.

Mere acquiescence is not sufficient; there must be assent. Lux v. Haggin, 69 Cal. 266.

Silence without fraud--that is, mere silence unaccompanied by any act calculated to mislead or deceive another to his hurt--never estops a party to claim his own. Railroad Co. v. Dubois, 12 Wall. 64; Cleveland v. Richardson, 132 U.S. 329, 10 S.Ct. 100; Ferris v. Coover, 10 Cal. 631; Bales v. Perry, 51 Mo. 449; Fielding v. Dubose, 63 Tex. 637; Hill v. Epley, 31 Pa. St. 334; Strong v. Ellsworth, 26 Vt. 367; Sulphine v. Dunbar, 55 Miss. 255; Mason v. Philbrook, 70 Me. 57; Rice v. Dewey, 54 Barb. 455; Mayo v. Cartwright, 30 Ark. 407; Bramble v. Kingsbury, 39 Ark. 131; Neal v. Gregory, 19 Fla. 356; Terre Haute Rd. v. Rodel, 89 Ind. 128, 46 Am. Rep. 164; Viele v. Judson, 82 N.Y. 32; Diffenback v. Vogler, 61 Md. 370; Stockman v. Riverside L. and I. Co., 64 Cal. 59, 28 P. 116; Knouff v. Thompson, 16 Pa. St. 357.

It is not alleged that defendants were misled by any act or word of Vina Bryan or Brown, that they relied on anything she said or did as an inducement to make the purchase, that she made any misrepresentations of any kind or fraudulently concealed any fact, or used any artifice to throw defendants off their guard, or to entrap or deceive them in any way, nor is it alleged that the means of information as to title of the land was not equally open to them as to her. In such cases the doctrine of estoppel has no application. Fletcher v. Holmes, 25 Ind. 458.

When a purchaser cannot make out his title but through a deed which leads to a fact, he will be affected with notice of that fact. Brush v. Ware, 15 Pet. 114. That which puts the party upon inquiry is notice. Id. He must look to every part of the title which is essential to its validity. Id. 111. See, also, Hardy v. Harbison, 4 Saw. 545, Fed. Cas. No. 6060; Bank of Mendocino v. Baker, 82 Cal. 117, 22 P. 1037.

As to the effect of recitals contained in the sheriff's certificate of sale and deed, see Bryan v. Crump, 55 Tex. 12; Corbett v. Clenny, 52 Ala. 480; Stidman v. Mathews, 29 Ark. 650; Gress v. Evans, 1 Dak. 387, 46 N.W. 1132; Wiseman v. Hutchison, 20 Ind. 40.

At all judicial sales the purchaser gets no better title than the officer of the law has power to sell; he exercises only a naked power. The doctrine of caveat emptor applies, and the purchaser is chargeable with notice whether the court had jurisdiction to pronounce the judgment or decree under which the sale was made. Stigall v. Huff, 54 Tex. 197; Reeve v. Kennedy, 43 Cal. 650; Chambers v. Jones, 72 Ill. 281; Cleveland v. Richardson, 132 U.S. 329, 10 S.Ct. 100.

If defendants claim that they are mortgagees in possession, then they are concluded by their own averments that they claim under the foreclosure decree, because where a party takes possession under such a decree, he cannot be regarded as a mortgagee in possession. Davenport v. Turpin, 43 Cal. 597.

But if this were not so, still plaintiff is entitled to recover. The mortgagee is not entitled to possession until after foreclosure and purchase. Comp. Laws 1877, sec. 2698; McMillan v. Richards, 9 Cal. 411; Nagle v. Macy, 9 Cal. 428; Kidd v. Temple, 22 Cal. 262. And if he gets possession without or against the consent of the mortgagor, he is a mere trespasser. Witherell v. Wiberg, 4 Saw. 232, Fed. Cas. No. 17,917; Semple v. Bank British Columbia, 5 Saw. 400, Fed. Cas. No. 12,660; Russell v. Ely, 2 Blackf. 575; Humphrey v. Ward, 29 Mich. 44; Hazeltine v. Granger, 44 Mich. 505.

D. H. Pinney, and Baker & Campbell, of Counsel, for Appellees.

The law presumes in favor of a judgment; that the court rendering it had jurisdiction of the subject-matter; that there were proper and adversary parties before it; and that it had jurisdiction of the persons of those parties. These presumptions accompanied the Kales judgment. Appellant sought to overthrow said judgment by the lesser presumption that the court would presume as against the judgment that plaintiff and defendant were the same person because their names were similar. This presumption does not always follow; whenever parties of similar names are in antagonistic or inconsistent positions, the law will not presume that they are the same party. Dorente v. Sullivan, 7 Cal. 279; Cooper v. Posten, 1 Duval, 92, 85 Am. Dec. 610; Jackson v. Christman, 4 Wend. 279; Ellsworth v. Moore, 5 Iowa, 486; Bennett v. Libhart, 27 Mich. 488; Waller v. Edmonds, 47 Tex. 469; Wilson v. Benedict, 90 Mo. 208, 2 S.W. 283; Cogswell v. Armstrong, 77 Ill. 139; Prescott v. Tuffs, 7 Mass. 209; Faulkner v. Faulkner, 73 Mo. 89.

Defendants' answer showed that Vina Bryan, plaintiff's grantor, was a party to those foreclosure proceedings. Then she was of course bound by the judgment. It also showed that Kales was in possession of the premises by virtue of the foreclosure proceedings, or, in other words, that he was a mortgagee in possession. Kales having become the purchaser at the sheriff sale and received the sheriff's deed therefor, the mortgage has never been satisfied otherwise than by virtue of these foreclosure proceedings. His position is that of mortgagee in possession, and until the mortgage debt has been paid, the grantee of one of the mortgagors, this plaintiff can never recover in ejectment. The true and most equitable rule is, that if the mortgagee enters into the possession of the mortgaged premises peaceably he cannot be ejected by the mortgagor until the mortgage debt is paid. Brobst v Brock, 10 Wall. 519; Johnson v. Sandhoof, 30 Minn. 197, 14 N.W. 891; Moulton v. Leighton, 33 F. 143; Phyfe v. Riley, 15 Wend. 248; Gibson v. Lyon, 115 U.S. 439, 6 S.Ct. 129; Miner v. Beekman, 50 N.Y. 338; Jones on Mortgages, secs....