Cross v. Robinson

• Decision Date: 17 May 1927
• Docket Number: 1405
• Citation: 256 P. 80,36 Wyo. 392
• Parties: CROSS v. ROBINSON [*]
• Court: Wyoming Supreme Court

256 P. 80

36 Wyo. 392

CROSS v. ROBINSON ^[*]

No. 1405

Supreme Court of Wyoming

May 17, 1927

Rehearing denied August 16, 1927.

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

Replevin by Charles C. Gross against Thomas E. Robinson. From a judgment for defendant, plaintiff appeals.

Affirmed.

Walter Q. Phelan and John F. Delaney, for appellant.

The court erred in compelling plaintiff to testify that he filed no report of his proceedings as trustee; Chapter 252 C. S. is an insolvency law, suspended by the bankruptcy act; In re Weedman Stave Co., 29 Am. B. R. 460; State ex rel Court 20 Wash. 545; 45 L. R. A. 177. Our assignment statute is an insolvency law; Hasbrouck v. La Febre, 23 Wyo. 383; In re Helcken Bros. Co. 216 F. 936. Parole evidence is not admissible to vary the terms of written instruments; Shipping Co. v. Insurance Co., 9 Fed. (2nd) 720. Courts cannot make contracts for parties, but are bound to give effect to the intention of the parties as expressed in writings; Transportation Co. v. Kansas City Bolt and Nut Co., 114 F. 77; Ry. Co. v. Bagley, 60 Kan. 424; 5 Wigmore on Evidence, Sec. 2425. The court erred in admitting the judgment in the case of Dukek v. Robinson; the parties were not identical; Fuller v. Insurance Co., 57 A. S. R. 84; Stilwell v. Carpenter, 2 Abb. N. C 238-241; 23 Cyc. 1237; Fowler v. Stebbens, 136 F. 366. A judgment operates as an estoppel, only as to points litigated between the same parties; 15 R. C. L. 1012; Cook v Elmore, 27 Wyo. 163; 23 Cyc. 1155-1157. The chattel mortgage was given after commencement of suit and gave no rights in the subject-matter of the suit; 1 Freeman Judgment, p. 1148, Sec. 537; 5564; Murray v. Ballou, 1 Johns Ch. (N. Y.) 566. Defendant had no right to possession of the land and must account for its use; Jasperson v. Scharnikow, 150 F. 572. No title can be acquired by squatting on real estate; Harney v. Tyler, 2 Wall. 328. There was no adverse possession; 2 C. J. 50. Possession, by license, cannot ripen into title; 2 C. J. 131. Constructive possession is legal possession; 31 Cyc. 927.

Kinkead & Ellery, and Donzelmann & Piggott, for respondent.

The judgment must be sustained for the following reasons: 1. There was no evidence of the quantity or value of the grain involved. 2. Superior title to the personal property had been adjudged in another party. 3. The right of possession to land could not be adjudged in an action involving title to crops. 4. Plaintiff's only remedy, if any, under the facts, would be for the rental value of the land. 5. Plaintiff is estopped from asserting rights to the crops. 6. Plaintiff acquired no rights as trustee under Chapter 252 C. S. The decree in the Dukek case was admissable; Need v. McMillan, (Ia.) 64 N.W. 438; 34 Cyc. 415. The question of lis pendens was not involved; Jenkins v. Mitchell, 59 N.W. 90; Richbourg v. Rose, (Fla.) 44 So. 69; Page v. Fowler, 39 Cal. 412; Churchill v. Ackerman, (Wash.) 60 P. 406; Woodcock v. Carlson, (Minn.) 43 N.W. 479; Groome v. Almstead, (Cal.) 35 P. 1021. Where the rightful owner of land is dispossessed, crops grown thereon by the dispossessor belong to him, subject to the payment of rental value; Cattle Co., v. Johnston, (N. D.) Ann. Cas. 1913 B, 631; Lynch v. Roller Mills, (Wash.) 90 P. 578; Fritcher v. Kelly, (Idaho) 201 P. 1036; Paik v. Chung, 211 P. 731; Power Mercantile Co. v. Moore Mercantile Co., (Mont.) 177 P. 406. An attempted assignment, without complying with the statute, is void; McCord-Brady v. Mills, 56 P. 1008. It confers no title on an assignee; Musconi v. Verchinell, (Colo.) 43 P. 912; Keith v. Hamblin, 53 P. 531; Paper Co. v. Paper Co., (Wis. ) 102 N.W. 21; Knight v. Packer, 77 Am. Dec. 388; Miller v. Waite, (Neb.) 83 N.W. 355; Phillips v. Phillips, (N. D.) 204 N.W. 987. The suspension of our assignment statute was not involved in the case of Hasbrouck v. Le Febre, 23 Wyo. 367. Moreover, the general rule is that the suspension rule is invoked only in adjudicated cases; In re Bridge, 230 F. 184; In re McElwain, 296 F. 112; Stellwagen v. Clum, 245 U.S. 605. Even though a title passed to the assignee, he was the agent of assignor to distribute proceeds of property to the latter's creditors.

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

OPINION

BLUME, Chief Justice.

Charles C. Gross, plaintiff and appellant herein, brought an action in replevin against Thomas E. Robinson. A redelivery bond was given and the property replevied remained in defendant's possession. From a judgment upon a directed verdict for the defendant, the plaintiff appealed. The parties will be named herein as in the court below.

Plaintiff in his second amended petition claimed to be the owner of certain personal property, namely of about two hundred acres of growing wheat, containing about three thousand bushels of the value of $ 3,000; six stacks of harvested wheat amounting to about four hundred bushels of the value of about $ 400; sixty acres of growing corn of the approximate value of $ 300--all situated on Section 27, Township 13 North of Range 60 West in Laramie County, Wyoming. Plaintiff claimed the property by virtue of a certain trust deed dated May 19, 1922, which was executed by the said Thomas E. Robinson to the plaintiff, as trustee, for the benefit of creditors. In this instrument, Robinson assigned to Charles C. Gross, trustee, for the benefit of creditors, certain personal property and all his right, title and interest in and to certain real estate, including the real estate above described. The instrument contains, among other things, a provision that if said trustee should find an opportunity to sell the real estate, he should have the right to make such sale, the net proceeds to be distributed among the creditors of said Thomas E. Robinson. A number of defenses were interposed by the defendant in the case, which in brief, are stated as follows: First, that continuously since and prior to May 5, 1922, defendant has been and is now in actual and exclusive possession of the real estate above described, with the full knowledge and consent of plaintiff; that during each of the years 1922 to 1925 inclusive, defendant cultivated said land, sowed crops and brought them to a state of maturity, claiming and asserting his exclusive right to the possession of said land, as against plaintiff; that plaintiff, accordingly, is estopped from claiming the crops in question; second, that the trust deed above mentioned was intended as an assignment, for the benefit of creditors, under chapter 252, W. C. S. 1920; that said trustee has failed to comply with the provisions of the statute relating to such assignments and that he, accordingly, never acquired any right or title in and to the land above mentioned; third, that an oral agreement existed between plaintiff and defendant, that plaintiff should use, occupy and cultivate the lands aforesaid until the same could be sold by the plaintiff, as trustee; fourth, that the rights of the parties herein have already been previously adjudicated in another suit.

The evidence in the case shows that plaintiff never paid the taxes on the lands above mentioned subsequent to the execution of the trust deed made to himself, but that they were always paid by the defendant. Though nobody lived on the land, since it does not seem to have contained any buildings, defendant, by himself or tenant, cultivated it during each year since the execution of the deed of trust, and put it in crops and his possession was, accordingly, visible. It is reasonably certain that plaintiff, who lived but a comparatively short distance from the land, had full knowledge of the possession of defendant, although he made some claim to the contrary. He never took actual possession of the land, and in fact, so far as the record shows, never attempted to do so. He claims, which is denied, to have told defendant in 1923 and also in 1924, to stay off the land, but he brought no action to oust defendant and judging from the letters which he caused to be sent on August 24, 1924, it would seem that all that he wanted was to get the reasonable value for the use and occupancy of the premises. These letters are as follows, written by his attorney:

"Mr. Charles C. Gross has consulted me with reference to your share of the crop, which will be harvested from different pieces of land now in the possession of certain parties who claim to hold some sort of lease or cropsharing contract with you. As you doubtless understand, all the revenues from these lands must be delivered over to the trustee, to be governed by the terms of the trust deed executed by you in 1922. I have written to the different tenants, advising them of the situation, and have instructed them to make settlement only with Mr. Gross. I hope that you will be willing to cooperate with us in this matter, for if you do not show such a willingness, it will be necessary for us to take appropriate court action, by injunction or otherwise."

And he also, on the same day, wrote to the various tenants to the following effect:

"I understand that you have some sort of lease or crop-sharing contract on Section 27, Township 13 North of Range 60 West which said land formerly belonged to one Thomas E. Robinson and now belongs to one Charles C. Gross, trustee. Mr. Gross, who holds title to this land under a trust deed, executed in May, 1922, is having some difficulty in getting Mr. Robinson to properly account to him for the proceeds of Robinson's share of the crops. I believe that you can be of considerable assistance to him in this matter, and I also think that you will find it very much to your interest to try to cooperate with Mr. Gross. When the crop is sold, I wish that you would do all in your power to see that Robinson...