Bush v. Duff

• Decision Date: 20 April 1988
• Docket Number: No. 86-319,86-319
• Citation: 754 P.2d 159
• Parties: Robert L. BUSH, Appellant (Plaintiff), v. Martin L. DUFF and Maxine E. Duff, Appellees (Defendants and Third-Party Plaintiffs), v. Francis H. McVAY and Karen A. McVay, (Third-Party Defendants).
• Court: Wyoming Supreme Court

Page 159

754 P.2d 159

Robert L. BUSH, Appellant (Plaintiff), v. Martin L. DUFF and Maxine E. Duff, Appellees (Defendants and Third-Party Plaintiffs), v. Francis H. McVAY and Karen A. McVay, (Third-Party Defendants).

No. 86-319.

Supreme Court of Wyoming.

April 20, 1988.

Fred W. Phifer, Wheatland, for appellant.

Frank J. Jones, Jones & Weaver, P.C., Wheatland, for appellees.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Justice.

The primary issue presented by this case is whether a way of necessity, created over lands subject to a mortgage by the conveyance of unmortgaged, landlocked adjacent lands by the mortgagor, survives the foreclosure of the mortgage on the servient estate. A corollary issue relates to the authority of the district court to award an easement in lieu of the way of necessity conditioned upon compensation for the lands committed to the easement. A third issue, collateral to the case involving the way of necessity, relates to a redemption from an execution sale of lands previously acquired by the judgment creditor and executed upon by mistake, or, alternatively, the right to recover the money paid to redeem the land. The district court ruled that the way of necessity did not survive the foreclosure of the mortgage on the servient estate; ordered the establishment of an easement upon payment of compensation; and denied a motion by the redemptioner to amend his pleading to assert a claim for monies paid for the land improperly subjected to execution. We hold that the district court correctly ruled that the way of necessity did not survive the foreclosure of the mortgage on the servient estate; the district court lacked authority to impose the easement which it ordered; and the district court did abuse its discretion in refusing to permit the amendment of the redemptioner's pleadings to claim the amount paid to redeem lands not lawfully subject to execution. We affirm in part; reverse in part; and remand this case for further proceedings.

The appellant, Robert L. Bush (Bush), sets forth these issues in his brief:

"1. Was the Appellant entitled to a way of necessity across the property of Appellees without having to purchase an easement as granted by the Court?

"2. Did the Court err in quieting title in Appellees to that portion of the SW 1/4SE 1/4 of Section 20, Township 30 North, Range 68 West of the 6th P.M., except the westerly 250 feet thereof, lying easterly of and adjacent to the re-located U.S. Highway 26/87, Platte County, Wyoming?

"3. If the Court did not err in quieting title to the foregoing property in Appellees, did the Court err in not allowing Appellant to amend his Complaint in order to recover the money paid to Appellees for said property on redemption?"

The appellees, Martin L. Duff and Maxine E. Duff (Duffs), restate the issues and articulate them as follows:

"1. Is Appellant entitled to a way of necessity across the property of Appellees?

"2. Was the entry of summary judgment quieting title in favor of Appellees proper?

"3. Did the court err in denying Appellant's motion to amend his complaint?"

On April 23, 1979, the Duffs, as sellers, entered into an Agreement for Warranty Deed with Francis H. McVay and Karen A. McVay (McVays), as purchasers, pursuant to which the Duffs agreed to sell to the McVays approximately 700 acres of agricultural land in Platte County. The transaction was consummated the same day, and the Duffs conveyed the property to the McVays by warranty deed. Simultaneously, the McVays executed and delivered to the Duffs a purchase money mortgage to secure a promissory note given by the McVays to the Duffs, which represented a substantial part of the purchase price. Three parcels of the property which was sold were not included in the mortgage, and the McVays held clear title to that part of the property. This arrangement satisfied the intent of the McVays and Duffs that the $85,000 cash down payment would provide the McVays with clear title to land having a value of approximately that amount. There also was a clause in the Agreement for warranty Deed which provided that the Duffs would execute partial mortgage releases as payments were received, subject to certain conditions.

All the land is located in Township 30 North, Range 68 West of the 6th P.M., in Platte County. Included in the sale was the SE 1/4SE 1/4, and that part of the SW 1/4SE 1/4, except the westerly 250 feet thereof lying easterly of and adjacent to U.S. Highway 26 and 87 (now designated as State Highway 319), in Section 20; the E 1/2, SW 1/4 of Section 21; and the W 1/2W 1/2 of Section 22. The transaction also encompassed lands in Section 28, which are not involved in this case. Of the lands conveyed, that part of the SW 1/4SE 1/4 lying east of and adjacent to U.S. Highway 26/87, except the westerly 250 feet thereof, in Section 20; the NE 1/4NE 1/4 of Section 21; and the W 1/2W 1/2 of Section 22 were excluded from the mortgage.

Several months after the conveyance by warranty deed and the delivery of the mortgage, the McVays conveyed their unencumbered interest in the NE 1/4NE 1/4 of Section 21 by warranty deed to Robert Bush, who is Karen McVay's father. Then, a little more than a year after acquiring the lands, the McVays executed a mortgage in favor of the First Wyoming Bank of Wheatland (Bank) to secure an additional loan. That mortgage included the remaining lands purchased from the Duffs to which the McVays had a clear title. The lands which are involved in this proceeding are shown by the following diagram which depicts the location of the property owned, or the ownership which was disputed, by the parties at the inception of this litigation.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Bush had no access to a public road from his lands, but he did travel across the lands owned by the McVays in Section 21 and Section 20 to State Highway 319.

The McVays failed to make payments when due on their obligations to both the Duffs and the Bank. Foreclosure proceedings were commenced on both mortgages in 1981. After obtaining a judgment of foreclosure against the McVays, the Bank purchased the property subject to its mortgage at the sheriff's sale. After the redemption period, the Bank deeded this property to the Duffs on May 29, 1982. That warranty deed covered that portion of the SW 1/4SE 1/4 of Section 20 reflected as the "disputed parcel" on the foregoing diagram.

The Duffs also obtained a judgment of foreclosure against the McVays. At the sheriff's sale which followed the foreclosure of the Duffs' mortgage, they purchased the property. That foreclosure and the subsequent purchase at the sheriff's sale did not include the east thirty acres of the NW 1/4NE 1/4 of Section 21, and title to that parcel remained in the McVays. Since the foreclosure sale did not satisfy the amount of the promissory note given to the Duffs, they then obtained a deficiency judgment against the McVays. In 1983, they executed upon that judgment, and the return on the writ of execution showed that the sheriff had levied execution on the east thirty acres of the NW 1/4NE 1/4 of Section 21 and that part of the SW 1/4SE 1/4 lying easterly of and adjacent to U.S. Highway 26/87, except the westerly 250 feet thereof in Section 20. The return reflected that the Duffs were executing against property which they already owned by virtue of the purchase from the Bank in 1982. The execution proceeded, and the Duffs purchased both of these parcels at the sheriff's execution sale. The McVays then assigned, for value, their rights of redemption in both parcels to Bush who subsequently redeemed them, receiving a certificate of redemption from the Duffs.

Bush's land in Section 21 still remained landlocked. It was necessary that he be able to traverse the Duffs' property in Section 21 to reach Wyoming State Highway 319. The Duffs, however, notified Bush that he no longer could cross their land to reach that highway. The land owned by Bush in Section 21 is bordered on the north and on the west by federal and state lands. Although he would not be required to do so in order to establish an easement by way of necessity, the record does reflect that both Bush and the McVays explored, without success, the possibility of gaining an easement over the lands owned by the federal and state governments.

In an effort to resolve his need for access, Bush filed an action in the district court, seeking in his complaint an easement by way of necessity across the Duffs' land to his property in Section 21. In addition, Bush sought to recover damages for trespass in relation to the parcel in Section 20, alleging that the Duffs had been farming that land. In their answer, the Duffs denied that Bush was entitled to a way of necessity across their property in Section 21, and, by a counterclaim, they requested the court to quiet title in them to the parcel in Section 20. ¹

The district court granted a partial summary judgment to the Duffs which quieted their title to the disputed parcel of land in Section 20. After that, Bush filed a motion to amend his complaint to seek recovery of the money he had paid the Duffs to redeem that parcel from the execution. This motion was denied. After trial on Bush's remaining claims, the district court entered an order granting Bush the easement which he had requested, running from his land southerly along the section line between Sections 21 and 22 to the southeast corner of Section 21 and thence westerly along the section line to State Highway 319, but requiring Bush to compensate the Duffs in the amount of $1,083.84 for this easement. Bush then took this appeal from the judgment and orders.

In support of his initial claim of error, Bush argues that he was entitled to a way of necessity across the Duffs' land without having to purchase an easement. The district court denied the way of necessity but granted, in effect, a private road to Bush. We are...