Bryant v. Cadle

Decision Date07 February 1910
Docket Number599
Citation18 Wyo. 64,104 P. 23
PartiesBRYANT v. CADLE, AS ADMINISTRATOR
CourtWyoming Supreme Court

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

18 Wyo. 64 at 95.

Original Opinion of October 5, 1909, Reported at: 18 Wyo. 64.

Judgment modified.

E. E. Enterline, Stotts & Blume, and S. P. Cadle, for defendant in error.

(On petition for rehearing.) Inasmuch as Mrs. Scrutchfield, during the period of her control of the land, held the same for the benefit of herself and children, and recognized the right of the court to make whatever orders it might deem best with reference to the land or the title, it would seem that she never claimed anything except the right to control and mortgage the land, and therefore did not claim the title. The order which gave her control can have meant nothing more than the right of management, and cannot be construed to mean the passing of title. (Gray v. Park, 162 Mass. 584; Anderson v. Stockdale, 62 Tex. 61; Blanton v. Meyes, 58 Tex. 422; Porter v. Thomas, 23 Ga. 471; Wolfe v. Loeb, 98 Ala. 426; Randall v. Josselyn, 10 A. 571.) These authorities seem to be directly opposed to the position taken by the court with reference to the character of Mrs. Scrutchfield's possession. It seems evident to us that the court at the time of appointing the receiver, as well as thereafter, up to April 23, 1897, intended to do nothing more than to provide that the income derived from the land should be used for the support of the wife and children. The fact that the mortgages were given during that period does not contravene that proposition. Mrs. Scrutchfield claimed title only jointly with her children, if she claimed any title. The latter have never made any conveyance nor granted any right of possession. One who relies on title by prescription and seeks to take to his own possession the possession of others must show that a privity existed between the holders. The deed made by Mrs. Scrutchfield purported to convey only the title belonging to her. She had no right to convey any other title, if she had any, and she could not put her grantee into rightful possession of the land, and such grantee, by taking possesison, was a wrong-doer. (Vance v. Fischer, 29 Tenn. 211; Reid v. Anderson, 13 App. D. C. 30; Shaw v. Nicholay, 30 Mo. 99; Pohlman v. Lohmeyer, 83 N.W. 201; Zweibel v. Meyers, 95 N.W. 597; Murray v. Pannaci, 67 N. J. Eq. 724; Bullen v. Arnold, 31 Me. 583; Wheeler v. Ladd, 40 Ark. 108.)

It seems that the court overlooked the contention of defendant in error that Mrs. Scrutchfield admitted in all the proceedings for mortgaging the property that she was not the owner, except as trustee, and that she was making her applications to mortgage as trustee. Moreover, in her petition asking for the permission to sell, she alleged substantially that the title to the land in question was in Scrutchfield and under the control of the court, and therefore her possession could not have been adverse. Where a party in possession of real property admits that the title is in another, although the possession may have been adverse, the running of the statute is broken. (St. Paul v. Ry. Co., 63 N.W. 267, 65 N.W. 649, 68 N.W. 458; Hubb v. Ry. Co., 32 N.W. 168; Ry. Co. v. Hubb, 40 N.W. 280; Ry. Co. v. Culvert, 52 N.W. 886; McClanahan v. Stevenson, 91 N.W. 925; Lockhart v. Lockhart, 94 N.W. 461.)

We think it apparent from the several orders of the court in the receivership proceedings as well as in the divorce action that neither the court nor the receiver understood that the latter held anything more than the mere possession of the land in trust. He was ordered in reference to the mortgages as follows: "That he secure the payment of the same by a mortgage lien on the real estate of said James A. Scrutchfield." And the other orders used similar language. It seems thus to be evident that the trial court did not recognize title or ownership in either the receiver or Mrs. Scrutchfield, but recognized the title to be in Mr. Scrutchfield. In addition to the authorities cited in this brief and the former brief, the following cases strongly support the contention that the adverse possession did not commence to run until the deed executed by Mrs. Scrutchfield, April 23, 1897: Kerstrom v. Barnes, 156 F. 280; Hunter v. Dennis, 112 Ill. 568; Houghton v. Pierce, 203 Mo. 723; Horn v. Metzger, 234 Ill. 240; Kirby v. Kirby, 236 Ill. 255.

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

ON PETITION FOT REHEARING.

POTTER CHIEF JUSTICE.

A petition for rehearing was filed in this cause by the defendant in error. The plaintiff in error filed a motion to modify the order remanding the cause for new trial, by either rendering judgment for the plaintiff in error or directing the district court to do so. Both the petition for rehearing and motion to modify were heard upon briefs and oral argument. No new point is raised by the petition for rehearing, but it is claimed that this court erred in the conclusions stated in the former opinion. Upon further consideration we perceive no reason for changing those conclusions. The facts of the case and the grounds for the decision are so fully stated in the former opinion that we deem it unnecessary to enlarge materially upon what was then said. (104 P. 23.) Counsel for defendant in error have called our attention to some authorities not cited in their original brief, but we think they are not in point upon the facts in this case.

In addition to the facts stated in the previous opinion showing the character of the possession and claim of Mrs Scrutchfield prior to her sale and conveyance of the property in controversy, we may add that in 1891 the property was assessed for taxation to,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT