Chesney v. Valley Live Stock Company

• Decision Date: 16 March 1926
• Docket Number: 1231
• Parties: CHESNEY v. VALLEY LIVE STOCK COMPANY et al. [*]
• Court: Wyoming Supreme Court

244 P. 216

34 Wyo. 378

CHESNEY v. VALLEY LIVE STOCK COMPANY et al. ^[*]

No. 1231

Supreme Court of Wyoming

March 16, 1926

APPEAL from District Court, Uinta County; JOHN R. ARNOLD, Judge.

Action by James Chesney against the Valley Live Stock Company Federal Reserve Bank of San Francisco, and others. Judgment for plaintiff, and defendant last named and others appeal.

Affirmed.

Henry D. Moyle and P. W. Spaulding, for appellants.

A litigant may not take inconsistent positions in his pleadings. Wyoming Consolidated & Development Co. v Buffalo, (Wyo.) 166 P. 393. Respondent cannot prove the execution of the deed and also offer evidence as to forgery thereof. Ryder v. Bates, 93 F. 31. No recovery can be had upon a cause of action inconsistent with that alleged in pleadings. Reed v. McConnell, 133 N.Y. 425; Bush v. Haire, 163 N.W. 875; Kulhanek v Kulhanek, (Nebr.) 184 N.W. 139; Newberry v. Munshower, 29 Ohio St. 617; Jesse v. Thatcher, 22 Ohio St. 668; Chamberlain v. Sawyer, 19 Ohio 360; Hilsinger v. Trickett, (Ohio) 99 N.E. 305; Gilles v. Hopkins, (Cal.) 153 P. 724; People v. Johnson, (Cal.) 93 P. 1042; Wilkinson v. Grant, (Cal.) 189 P. 319; Arnold v. Angel, 62 N.Y. 508; Dunlap v. Chicago R. R. Co., (Kan.) 143 P. 415; City v. O'Neill, (Ore.) 192 P. 909. The rule is universal and authorities might be multiplied in support thereof. The ordinary rule, with reference to pleading fraud, requires facts showing all essential elements of fraud. 27 C. J. 30; 12 R. C. L. 416-420; Smith v. Stone, (Wyo.) 128 P. 612; Riddle v. Isaacs, (Ore.) 192 P. 392. Respondent failed to allege possession, which is necessary to support action to quiet title. Pomeroy Equity, 2159; United Land Ass'n. v. Co. (Cal.) 69 P. 1064; Frost v. Sprightly, 121 U.S. 552; Fla. v. Furman, 180 U.S. 402; Baldwin v. McDonald, (Wyo.) 156 P. 27; Durrell v. Abbott, (Wyo.) 44 P. 647. A general denial was sufficient. Iba v. Central Ass'n. (Wyo.) 40 P. 527; Pennie v. Hildreth, (Cal.) 22 P. 398. Plaintiff is required to establish his title. Toland v. Toland, (Calif) 55 P. 681; Heaten v. Lodge (Ind.) 103 N.E. 148; Van Patten v. O'Brien, (Nebr.) 129 N.W. 540. The finding of the lower court was based on lack of consideration. Consideration is not always necessary to support a conveyance. Johnson v. Cleveland, 15 Mich. 94; 2 Tiffany on Real Property, 438; Feeney v. Howard, (Calif.) 21 P. 984; Gould v. Lynd, 114 Mass. 366; Wells v. Kuhn, 221 S.W. 19. Parol evidence is incompetent to overcome a recital of consideration appearing in a deed. Groves v. Groves, (Ohio) 62 N.E. 1044; Ill. Central v. Wolfe, 37 Ill. 354; Haslam v. Jordan, (Me.) 70 A. 1066; Chambers v. Chambers, (Mo.) 127 S.E. 87. There is no limit to the cases and authorities sustaining the principle. Respondent pleads forgery. The court's decree was predicated on want of consideration. The judgment should be reversed.

Louis Kabell, Jr., M. E. Wilson and E. A. Walton, for respondent.

A defense of bona fide purchaser must be made by answer. 39 Cyc. 1778-1780. These defendants appear as attaching creditors, not as bona fide purchasers. Whelan v. North Platte Co., 11 Wyo. 348; Frank v. Hicks, 4 Wyo. 516. A judgment creditor is not a purchaser. Durell v. Abbott, 6 Wyo. 265. Defendants have neither alleged nor proven an equitable lien superior to plaintiff. United Land Ass'n v. Co. (Calif) 69 P. 1064; Wall v. Bagnus, (Colo.) 30 P. 56. 4617 C. S. defines quit claim deeds. A quit claim deed passes all legal and equitable rights of the grantor in the premises. 4718 C. S. The method for discharging mortgages of record is pointed out in Secs. 4626, 4650 and 4653 C. S. The instrument is not an equitable release. 2 Devlin Real Estate, 1330. The doctrine of merger does not apply where equity would be defeated. Beauchamp v. Bertig, (Ark.) 23 L. R. A. N. S. 659; Longfellow v. Barnard (Neb.) 79 N.W. 255; Waters v. Waters, (Ia.) 89 A. D. 540; Latton v. McCarty (Wis.) 125 N.W. 430; 2nd Jones Mortgages, 976. Deeds executed and delivered contemporaneously will be given effect in accordance with the intentions of the parties. Blum v. Parson Co. (N. J.) 78 A. 174; Bylund v. Crook, (Utah) 208 P. 504. Cancellation will be decreed as well upon fraud as upon forgery. The distinction being made in behalf of an innocent and bona fide purchaser for value. 2 Pomeroy Eq. 918; McGinn v. Tobey, et al., (Mich.) 28 N.W. 818; Toney v. Toney, (Ore.) 165 P. 221. The answers are insufficient to show a bona fide purchaser. The Ohio rule does not forbid inconsistency of defenses unless they amount to repugnancy, which excludes varification without false swearing. 1 Bates Pl. Pr. and Forms, 347. The case of Wyo. v. Buffalo Co., cited by appellant, supports our position. Pleadings are liberally construed in 5686 C. S., and may be made more definite and certain by motion. Appellants have even resorted to the contention that plaintiff made a gift of the premises to the Valley Company, but there is no evidence of such intention. The parol evidence rule is not available to strangers or attaching creditors. Ranson v. Wickstrom, (Wash.) 146 P. 1041. An execution creditor, purchasing at his own sale, is not a bona fide encumbrancer. L. R. A. 1916 A; Hart v. Meredith, (Tex.) 65 S.W. 507. A creditor of a vendor cannot require that a parol for the sale of land shall be held void, Lefferson v. Dallas, 20 Ohio St. 68, nor invoke the statute of frauds. Morrison v. Collier 79 Ind. 417; Kemp v. Bank, 109 F. 48; Murray Hill Co. v. Havinor, (Utah) 66 P. 762; 27 C. J. 307.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This action was brought by James Chesney, as plaintiff, against the Valley Live Stock Company and other defendants, to cancel a certain quit claim deed and have the rights of the defendants declared junior and inferior to the rights of the plaintiff. It appears that on October 1, 1917, James Chesney the plaintiff below and hereafter referred to as the respondent, was the owner of certain lands in Uinta county, Wyoming. On that date he sold the land, and live stock and other property on the land, to his son, Edmund L. Chesney, for the sum of $ 150,000, of which the sum of $ 50,000 was paid in cash. The purchaser, to secure the balance of the purchase price, executed on the date last mentioned notes to James Chesney for $ 100,000, secured by chattel mortgages on the personal property, and a real estate mortgage on the land so sold. The indebtedness drew interest at the rate of 7 per cent per annum. The real estate mortgage was duly filed for record and recorded in book 77, page 120, mortgage records of Uinta county, Wyoming. In 1919, Edmund L. Chesney organized a corporation under the name of Chesney Stock Farm, Inc., but he was the only stockholder thereof. The property above mentioned was transferred to that corporation. Some time before the 3rd day of March, 1921, Edmund L. Chesney entered into negotiations with one Ernest Wooley, of Salt Lake City, for the sale of all of said property. Wooley organized a corporation under the name of Valley Live Stock Company, defendant in this case, and intended to and did purchase the real and personal property mentioned above in the name of such company. The sale was completed on March 3, 1921. The Chesney Stock Farm, Inc., executed a deed to the lands aforesaid and a bill of sale of the personal property to the Valley Live Stock Company. The former chattel mortgages held by James Chesney were released, and new chattel mortgages to him were made and executed by the Valley Live Stock Company. As part consideration for the sale, Wooley paid to James Chesney the sum of $ 10,000, as interest then due on the indebtedness of $ 100,000 above mentioned, and the deed to the Valley Live Stock Company states that it is subject "to one certain mortgage in favor of James Chesney for $ 100,000 which is recorded in the county of Uinta, state of Wyoming, in the County Recorder's office in book 77 of mortgages, page 120, which said mortgage the said grantee does hereby assume and agrees to pay." On the date last mentioned, James Chesney also made and executed to the Valley Live Stock Company a quit claim deed to the land aforesaid. This deed simply "quitclaims" the land to said company. In December of that year the Federal Reserve Bank, Uinta Mercantile Company and Blythe & Fargo Company, defendants herein, and hereinafter referred to as appellants, commenced actions against the Valley Live Stock Company to recover certain indebtedness due to the respective parties from said company, and attached the real property hereinabove mentioned. Two of these parties, thereafter and before the commencement of this action, obtained judgments in their respective suits. It seems that these creditors made the claim, when they caused the lands aforesaid to be attached, that the quit claim deed executed, as heretofore mentioned, on March 3, 1921, had the effect of releasing the mortgage of $ 100,000, given on October 1, 1917, by Edmund L. Chesney to James Chesney. The latter, respondent herein, accordingly brought this action against the Valley Live Stock Company and the appellants herein for the purpose of cancelling such quit claim deed and having the rights of the defendants to the action, in and to the real estate described in such deed, declared to be junior and inferior to his rights under the mortgage. He alleges in his petition that Edmund L. Chesney executed to him the mortgage of $ 100,000 aforesaid; that said mortgage was duly filed of record in Uinta county, Wyoming, on November 30, 1917; that it is his property and there is due and owing thereon the sum of $ 100,000, with interest at the rate of 7 per cent per annum from the 1st day of March, 1921; that said real estate was conveyed to the Valley Live Stock Company,...