Dame v. Mileski

Decision Date13 May 1959
Docket NumberNo. 2848,2848
Citation80 Wyo. 156,340 P.2d 205
PartiesR. D. DAME, Appellant (Defendant below), Bruce Anderson et al., Defendants, v. E. T. MILESKI, Appellee (Plaintiff below).
CourtWyoming Supreme Court

D. W. Ogilbee and Jack D. Emery, Casper, for appellant.

Elmer J. Scott, Worland, for appellee.

Heard before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

This is a suit to quiet title and to adjudicate the rights of the parties in a 1 percent overriding royalty interest in the oil and gas in certain Big Horn County lands. According to the uncontradicted evidence, D. L. McDonald and Stanley T. Wallbank were owners of a United States oil and gas lease on the lands. They assigned it to others, reserving a 1 percent overriding royalty in each McDonald and Wallbank; McDonald thereafter conveyed his 1 percent overriding royalty interest in the same lands three different times as follows:

(1) To R. D. Dame on February 11, 1952, which instrument was filed for record in the Land Office, 1 Bureau of Land Management, Department of Interior, Cheyenne, Wyoming, February 21, 1952, and was recorded in the Office of the County Clerk of Big Horn County on November 22, 1954.

(2) To Bruce Anderson on February 14, 1952, which instrument was recorded in the Office of the County Clerk of Big Horn County on June 17, 1953.

(3) To E. T. Mileski on November 6, 1952, which instrument was filed for record in the Land Office November 21, 1952, and was recorded in the Office of the County Clerk of Big Horn County on November 6, 1952.

Mileski, the last to purchase the said interest from McDonald but the first to record it in the county where the lands were situated, brought suit against Dame, Anderson, and Anderson's assignees, alleging purchase of the royalty interest for valuable consideration and in good faith. Dame filed an answer, counterclaim, and cross-petition, apparently relying upon the fact that the filing of his assignment in the Land Office constituted constructive notice to plaintiff. The other defendants defaulted.

Prior to the presentation of any evidence, defendant interposed what he later termed a speaking demurrer 'in accordance with Sec. 3-1303(5),' W.C.S.1945, asserting that McDonald, grantor, was a necessary party to the action. This demurrer was overruled, and the case proceeded to trial. The court rendered judgment for plaintiff, specifically finding, inter alia, that the allegations of plaintiff's petition were true, that plaintiff had purchased in good faith the 1 percent overriding royalty from McDonald on November 6, 1952, and that plaintiff had no actual or constructive notice of adverse claims of defendant Dame at the time of purchase.

Basically the errors charged against the trial court in the rendering of judgment for plaintiff on his petition rather than for defendant on his cross-petition are: (1) The finding that plaintiff purchased in good faith for a valuable consideration and without notice of adverse claim of defendant Dame. (2) The failing to find that (a) plaintiff was on notice of the prior assignment of defendant; (b) the interest in controversy was personal property rather than real property; (c) the instrument on which plaintiff relies is not one in a record chain of title giving him rights as a good-faith purchaser; and (d) plaintiff gave no valid consideration for the assignment.

Defendant first argues that there was a substantial defect of parties defendant, complaining because the court overruled his speaking demurrer. He does not undertake to define a speaking demurrer or to justify its employment, entirely overlooking the fact that a speaking demurrer has usually been held to be bad pleading. See 19 Am.Jur. Equity § 310; 41 Am.Jur. Pleading § 209; 71 C.J.S. Pleading § 256; and many excerpts from cases in 39A Words and Phrases, Speaking Demurrer, p. 74 ff. Instead, he cites cases from other jurisdictions tending to hold that where conflicting interest of plaintiff and defendant in their respective claimed holdings are acquired from the same person such person becomes an indispensable or necessary party. The cited cases are not sufficiently analogous in circumstances to be persuasive. Moreover, § 3-1305, W.C.S.1945, provided:

'When any of the defects enumerated in section one hundred and thirteen [§ 3-1303] do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same * * *.'

In the present case the defendant made no attempt to immediately demur but answered instead and at that time raised no question regarding defect of parties defendant. Accordingly, even if there were a defect of parties defendant the matter would have been waived prior to the time the case came to trial.

Defendant argues that the filing of his assignment with the Land Office constituted constructive notice and justifies his position on several different grounds. He points out that the Department of the Interior has the obligation of leasing public lands and is, accordingly, authorized to promulgate regulations therefor. He then calls attention to 43 C.F.R. § 192.141 (1954), which provides:

'* * * all instruments of transfer of a lease or of an interest therein, including assignments of working or royalty interests, and operating agreements, and subleases, must be filed for approval within 90 days from the date of final execution and must contain all of the terms and conditions agreed upon by the parties thereto * * *.'

He goes on to say that the trial court and incidentally the parties to the action are bound to take judicial notice of the provisions of the regualtions, citing South v. Wishard, 146 Cal.App.2d 276, 303 P.2d 805; Arnold v. Universal Oil Land Co., 45 Cal.App.2d 522, 114 P.2d 408; and Livermore v. Beal, 18 Cal.App.2d 535, 64 P.2d 987. Inasmuch as all of these cases emanate from the jurisdiction of California, the first matter of importance is to ascertain the statutory provisions as to judicial notice in that State. We find that § 1875, West's Annotated California Codes, Civil Procedure, states:

'Courts take judicial notice of the following facts:

* * *

* * *

'3. Public and private official acts of the legislative, executive and judicial departments of this state and of the United States, and the laws of the several states of the United States and the interpretation thereof by the highest courts of appellate jurisdiction of such states;'

The California cases cited by defendant are based upon this statute, Arnold v. Universal Oil Land Co., supra, having held, largely on the authority of Livermore v. Beal, supra, that the persons interested in the subject matter of the records and orders of executive departments of the United States are also charged with notice.

The Wyoming statute on judicial notice is as follows:

'Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.' § 3-3109, W.C.S.1945.

Comparison of these statutes discloses that the scope of judicial notice as to public records is, therefore, much more limited in Wyoming than in California.

The wisdom of various statutory provisions as to judicial notice may well be debatable. Persons favoring an enlarged area of administrative matters which a court can notice, without the necessity of taking evidence, point out the resulting facility in the trial of lawsuits. Those favoring more restricted assumption of facts by the courts insist that in these days of tremendously increased activities by executive and administrative bodies a litigant would, under broader statutes, be charged with knowledge of scores of activities of which he actually knew nothing. Be that as it may, the wisdom of the procedure is not one for the courts but for the people through legislation. We are guided, as are the California courts, by the statute applicable to the jurisdiction. Accordingly, the California cases cannot be precedent on this phase of the question.

Defendant also quotes Schnee v. Schnee, 23 Wis. 377, 99 Am.Dec. 183, 185:

'* * * The last purchaser in such case may be, and no doubt is, chargeable with knowledge of any facts appearing by the records of the land-office at which he purchases, or of the general land-office, going to show the claim or title of the first purchaser. * * *'

It is significant to note the next sentence of the court's opinion:

'And the doctrine may, under some circumstances, perhaps, be carried somewhat farther; but it clearly does not apply to a case like this; and the authorities cited by counsel do not sustain his position. * * *'

Clearly, the pronouncement is dictum only and of such a general nature as to be of no help.

No other state cases are cited on this point, but defendant contents himself with reference to Interior decisions in which constructive notice of Federal records is discussed. Obviously, these cases dealing with Federal agency matters can have no bearing on this problem.

Defendant quotes a general reference to constructive notice in 39 Am.Jur. Notice and Notices § 7, wherein it is stated:

'Constructive notice is the law's substitute for actual notice, intended to protect innocent persons who are about to engage in lawful transactions. It is a legal inference from established facts and, like other legal presumptions, does not admit of dispute. * * *' (Emphasis supplied.)

The statement hardly supports defendant's thesis. Where the law is as in California, the constructive notice does not admit of dispute. Where the law is as in Wyoming, there is, of course, the most serious dispute. The effect of the recording of an instrument as charging a subsequent purchaser with notice thereof is solely by reason of the statute to that effect and is necessarily confined. 5 Tiffany Real Property, 3 ed., p. 15; see...

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    ...Evidence, § 2591, p. 589 (3d Ed.)) but 'Having stated his position in the pleadings, he cannot alter it at this time.' Dame v. Mileski, 80 Wyo. 156, 340 P.2d 205, 209; see also Board of County Commissioners of Courty of Fremont v. State ex rel. Miller, Wyo., 369 P.2d 537, 540. In Kerr-McGee......
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