Cullen v. Western Mortgage & Warranty Title Co.

• Decision Date: 14 June 1913
• Citation: Cullen v. Western Mortgage & Warranty Title Co., 47 Mont. 513, 134 P. 302 (Mont. 1913)
• Parties: CULLEN v. WESTERN MORTGAGE & WARRANTY TITLE CO.
• Court: Montana Supreme Court

134 P. 302

47 Mont. 513

CULLEN v. WESTERN MORTGAGE & WARRANTY TITLE CO.

Supreme Court of Montana

June 14, 1913

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by Matthew Cullen against the Western Mortgage & Warranty Title Company and others, in which Lucina S. Wadsworth and another intervened.From a judgment for plaintiff, defendant named appeals.Affirmed.

Massena Bullard, Leslie B. Sulgrove, and Henry C. Smith, all of Helena, for appellant.

Nolan & Donovan and L. J. Hamilton, all of Butte, for respondent.

SANNER J.

On November 4, 1911, the respondent, Matthew Cullen, brought this action as plaintiff against the American Mining Company Limited, H. H. Stackpole, Carl Kleinschmidt, Albert Kleinschmidt, George F. Hale, Alfred W. Hale, Mattie F Curtis, John G. Brown, Reinhold H. Kleinschmidt, Western Mortgage & Warranty Title Company, and Anna Davenport, to quiet the title of respondent to an undivided four-fifteenths interest in what is called the Naragansett lode.The complaint is in the simple form alleging ownership of such interest in the plaintiff, that the defendants named claim some estate or interest adverse to him, and that the claims of defendants are without right.

The defendantsAmerican Mining Company, Limited, H. H. Stackpole, Carl Kleinschmidt, George F. Hale, Alfred W. Hale, and Anna Davenport defaulted.Separate answers to the complaint were filed as follows: By the Western Mortgage & Warranty Title Company, denying that plaintiff has any interest in the property, alleging ownership of the whole of said property, and that the Western Mortgage & Warranty Title Company and its predecessors in interest had been in the quiet and peaceable possession thereof since January 20, 1902, asserting that plaintiff and the other defendants named claim, but without right, some interest in the property, and praying that the title of the Western Mortgage & Warranty Title Company in the same be quieted; by Mattie F. Curtis, disclaiming any knowledge of plaintiff's claim and asserting an undivided 1/48 interest in the property; by John G. Brown, disclaiming any interest in the property, and alleging that he had conveyed all his interest to the Western Mortgage & Warranty Title Company; by Reinhold H. Kleinschmidt, disclaiming any interest in the property, and alleging that he had conveyed all his interest to the Western Mortgage & Warranty Title Company; by Frank H. Cooney, substituted in place of George F. Hale, admitting plaintiff's interest as asserted, denying any claim thereto, denying that the Western Mortgage & Warranty Title Company is the owner of the property or has any interest therein, save an undivided 1/48 interest, and alleging an undivided 3/20 interest by conveyance from George F. Hale.The plaintiff replied to the answer of the Western Mortgage & Warranty Title Company, denying its claim, and also replied to the answer of Mattie F. Curtis, disclaiming any knowledge as to hers.On July 8, 1912, Lucina S. Wadsworth filed her complaint in intervention, asserting ownership to an undivided 2/15 interest by virtue of the last will and testament of Samuel H. Stuart, deceased, admitting the asserted claims of plaintiff Cullen, of defendant Curtis and of defendant Cooney, and also that John H. Johns owns a 1/24 interest, the American Mining Company an 11/30 interest, and the Western Mortgage & Warranty Title Company a 1/48 interest, and denying that the Western Mortgage & Warranty Title Company is the owner of the property or of any interest therein greater than a 1/48.On July 10th John H. Johns filed his complaint in intervention, asserting ownership of a 1/24 interest in the property, admitting the asserted claims of plaintiff Cullen, of defendant Curtis, and of defendant Cooney, and also that the American Mining Company owns an 11/30 interest and the Western Mortgage & Warranty Title Company a 1/48 interest, but denying that the Western Mortgage & Warranty Title Company is the owner of the property or has any interest therein greater than a 1/48.

On July 12, 1912, the above-named parties entered into a stipulation to submit the cause to the court upon the following agreed facts: That in 1892 the title to the property in question stood of record and was in fact vested in Alfred W. Hale(an undivided 7/60), George F. Hale(an undivided 7/60), Matthew Cullen(an undivided 4/15), Samuel H. Stuart(an undivided 2/15), and the American Mining Company, Limited(an 11/30); that save as affected by the tax deed hereinafter referred to, the title so remains, except that in or since 1905 the above interests of Alfred W. Hale and George F. Hale became vested in John H. Johns(an undivided 1/24), Mattie F. Curtis(an undivided 1/48), Western Mortgage & Warranty Title Company(an undivided 1/48), and Frank H. Cooney(an undivided 3/20), and that the above interest of Samuel H. Stuart became vested in Lucina S. Wadsworth as his executrix and devisee; that in 1897 the property was assessed to Samuel H. Stuart and S. H. Stackpole for back taxes for 1891, 1892, 1893, and 1894, and, such not having been paid, the property was on February 12, 1898, after due and regular notice, offered for sale and a certificate of sale was issued to Silver Bow county for all property offered for sale on February 12, 1898, a list of which, attached to the certificate, included the property in question; that said property was redeemed from said sale on August 9, 1911, by Reinhold H. Kleinschmidt, and whatever interest he thus acquired was before the commencement of this action conveyed to the Western Mortgage & Warranty Title Company; that in 1898 the property was asssessed to "American Mining Company et al.," taxes were levied and became delinquent, and on January 27, 1899, after due and regular notice, it was offered for sale and a certificate of its sale was issued to Lee Davenport; that on January 5, 1902, Lee Davenport filed with the treasurer his affidavit and notice of application for tax deed, and on January 28, 1902, a tax deed to said property was by the treasurer issued and delivered to said Davenport; that whatever interest said Davenport acquired by virtue of said deed has become vested in the Western Mortgage & Warranty Title Company.

It does not specifically appear when the agreed statement of facts was filed; but on July 23, 1912, Mattie F. Curtis and John H. Johns filed their separate replies to the answer of the Western Mortgage & Warranty Title Company, in effect denying the claim of ownership asserted by it, whereupon the following proceedings were had in court: "This cause coming on this day regularly on argument upon the agreed statement of facts heretofore filed herein, the parties being represented by their respective counsel, * * * it was stipulated and agreed * * * that the answer of the Western Mortgage & Warranty Title Company on file herein should stand as the answer to the complaint in intervention of John H. Johns and to the separate answer of Mattie F. Curtis, and that the replies of John H. Johns and Mattie F. Curtis filed and entered herein on this day should be deemed replies to the said answer of the Western Mortgage & Warranty Title Company; thereupon Massena Bullard, counsel for the Western Mortgage & Warranty Title Company, moved the court for leave to file an amendment to the separate answer of said Western Mortgage & Warranty Title Company, setting up a third affirmative defense which said proposed amendment is in the words and figures as follows, to wit: 'Third.For a third defense, that the plaintiff's cause of action is barred by the provisions of section 2654 of the Revised Codes of Montana of 1907, as amended bychapter 50 of the Laws of the Eleventh Session of the Legislative Assembly of the state of Montana.'To the granting of which amendment * * * counsel for adverse parties objected, * * * which objection * * * was by the court sustained, and an exception to the ruling of the court noted on the part of the Western Mortgage & Warranty Title Company.Thereupon the case was fully argued by counsel for the respective parties and submitted to the court for consideration and decision, and the case was by the court taken under advisement."On September 9, 1912, the action was dismissed as to the defendantCarl Kleinschmidt; testimony was taken as to the defendants who had defaulted, and a general finding was made by the court in favor of plaintiff Cullen, the interveners Wadsworth and Johns, and the defendants Curtis and Cooney, and against the defendantWestern Mortgage & Warranty Title Company.The judgment which was filed on September 10, 1912, decrees that the interests in the property are as follows: To plaintiff Cullen 4/15; to intervener Johns 1/24; to intervener Wadsworth 2/15; to defendant Curtis 1/48; to defendant Cooney 3/20; and to defendantWestern Mortgage & Warranty Title Company 1/48.The costs of plaintiff, the interveners, and the prevailing defendants are taxed against the Western Mortgage & Warranty Title Company, and it is decreed to be barred from asserting any claim to the property over and above an undivided 1/48 interest.From this judgment and from an order denying its motion for a new trial the Western Mortgage & Warranty Title Company has prosecuted these appeals.

The principal question involved is the construction and application of section 2654, Revised Codes, as amended bychapter 50, Session Laws of 1909.Section 2653, Revised Codes, provides that the matters recited in the certificate of sale must be recited in the tax deed, and that such deed when duly acknowledged or approved, is prima facie evidence of certain things.Section 2654, as amended, provides that such deed, except as against actual fraud, is conclusive evidence of all...