Davis v. Minnesota Baptist Convention of Minneapolis, Minn

• Decision Date: 21 November 1932
• Docket Number: 1756
• Citation: 16 P.2d 48,45 Wyo. 148
• Parties: DAVIS, ET AL. v. MINNESOTA BAPTIST CONVENTION OF MINNEAPOLIS, MINN
• Court: Wyoming Supreme Court

16 P.2d 48

45 Wyo. 148

DAVIS, ET AL. v. MINNESOTA BAPTIST CONVENTION OF MINNEAPOLIS, MINN

No. 1756

Supreme Court of Wyoming

November 21, 1932

ERROR to District Court, Laramie County; SAM M. THOMPSON, Judge.

Action by Louis G. Davis and another against the Minnesota Baptist Convention of Minneapolis, Minnesota and another, in which defendant first named filed a cross-petition. Judgment was entered denying plaintiffs relief, and plaintiffs bring error.

Affirmed.

The cause was submitted for the plaintiffs in error on the brief of Lee & Lee, of Cheyenne, Wyoming.

Defendant below was bound by its pleadings and it was not incumbent upon plaintiffs to prove all of the steps required to show a valid tax sale. Gulf States Land Co. v. Wade, 25 So 105; Douthett v. Winder, 108 Ill. 330, 334, 35 Cyc 25, 55 C. J. 36. When a party alleges a sale, it means a completed act, and a transfer of title. Cone v Ivinson, 4 Wyo. 203. Defendant was bound by its allegations of sale. Nugent v. Powell, 4 Wyo. 173; Pardee v. Kuster, 15 Wyo. 368; State v. Schnitger, 16 Wyo. 479; Edwards v. Johnston, 23 Wyo. 384, 49 C. J. 287, 788; Mitchell v. Flambeau Co., 98 N.W. 530; Crebbin v. Wever, 80 P. 977; Scott v. Watkins, 138 P. 432; Knudsen v. Curley, 15 N.W. 873. The findings of the trial court established the right of plaintiffs to judgment. McCague Inv. Co. v. Mallin, 25 Wyo. 373. Parties are bound by theories advanced in their pleadings. State v. Schnitger, supra; Williams v. McWhorter, 30 Wyo. 229, 49 C. J. 117, 119, 120. Defendant pleads a general denial and a superior lien or title, which does not raise any issue at all. Wall v. Magnes, 17 Colo. 476; Lambert v. Shumway, 85 P. 89; Jordan v. Stevens, 55 Mo. 361; Shirk v. Williamson, 50 Ark. 562; Watts v. Lawrence, 26 Wyo. 367. Plaintiffs proof of possession, conveyances from tax title holder and former owner were sufficient to establish their right in the absence of allegations or proof by defendant of invalidity of title, 22 C. J. 126, in view of the fact that the tax deed was regular upon its face. Gould v. Thompson, et al., 45 Iowa 450; McCready v. Sexton, 29 Iowa 356; Nowells v. Jones, 37 Wyo. 405, 22 C. J. 130. The contention of defendants that the mortgage is prior to the tax lien is erroneous. Wakeman v. Board of Co. Commrs., 40 Wyo. 53.

The cause was submitted for defendants in error on the brief of Charles E. Lane, of Cheyenne, Wyoming.

The assignments of error are insufficient. Wolbol v. Steinhoff, et al., 25 Wyo. 248; Boburg v. Prahl, 3 Wyo. 325; Hilliard v. Douglas Oil Fields, 20 Wyo. 201; Reece v. Rhoades, 25 Wyo. 91; C. B. & Q. R. R. Co. v. Morris, 16 Wyo. 319; Savings Bank v. Henry, et al., 22 Wyo. 193. Plaintiffs chose the burden of proof, which they failed to assume. 51 C. J. 171; Salisbury v. La Fitte, 141 P. 484; Schmidt v. First Nat. Bank, 29 Wyo. 260. A party cannot rely on a pleading stricken out on his own motion. 49 C. J. 125, 127. The essentials of a pleading to quiet title are prescribed by statute. Sec. 89-3905. Plaintiff's petition did not state a cause of action. 41 C. J. 707, 51 C. J. 157. The court's findings are conclusive, the evidence being conflicting. Sims v. Surety Co., 38 Wyo. 165; Perko v. Rock Springs Comm. Co., 37 Wyo. 107. Exceptions to findings must be pointed out to enable a trial court to make necessary corrections, Slane v. Curtis, 41 Wyo. 418; Mulhern v. Mahs, 41 Wyo. 216; Finance Corp. v. Credit Co., 41 Wyo. 199, and complaining party must be prejudiced to warrant findings. Hilliard v. Douglas Oil Fields, 20 Wyo. 214; Cramer v. Munkree, 14 Wyo. 244. Findings will be construed to support the judgment if possible. Bishop v. Hawley, 33 Wyo. 271, 8 Enc. Pl. and Pr. 276. The cause was tried on the theory of an equitable action to cancel a mortgage. 51 C. J. 132, 146, 16 Wyo. 125, 51 C. J. 171. Errors assigned, but not argued, are waived. Worland v. Davis, 31 Wyo. 108; Auto Ins. Co. v. Lloyd, 40 Wyo. 44; In re Demorest's Estate, 41 Wyo. 189. Plaintiffs did not except to the findings of fact or conclusions of law, and they are not a part of the bill of exceptions. Sec. 89, Art. 47, R. S. 1931. No error being shown, the presumption is in favor of the decision of the trial court. 39 Wyo. 201. The appellate court will not search the record for possible errors. 39 Wyo. 476. One suing for the cancellation of a mortgage must tender payment. 51 C. J. 279. A tax deed though regular on its face is not prima facie evidence of title. Mathews v. Blake, 16 Wyo. 125. The burden of proof is on the plaintiffs. 51 C. J. 171, 247. Lobban, Co. Treas. v. State, 9 Wyo. 380; Shell v. Duncan, 5 L. R. A. 823. The judgment of the trial court should be sustained.

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

OPINION

RINER, Justice.

This cause is here on proceedings in error to review a judgment of the District Court of Laramie County. The action was brought in that court by Louis G. Davis and Merle Henneberry, as plaintiffs, against Minnesota Baptist Convention of Minneapolis, Minnesota, a corporation, and Barnes Brothers, Incorporated, a corporation, as defendants. The parties will hereinafter be referred to as aligned in the court below or by their respective names.

The plaintiffs' petition was in the usual form in a suit to quiet title, alleging their fee simple ownership and actual possession of some 320 acres of land in Laramie County and that the defendants aforesaid claim some right, title or interest therein adversely to plaintiffs, but that any such right, title or interest is inferior to plaintiffs' title.

The defendant Barnes Brothers, Incorporated, filed a separate answer denying generally the title alleged in said petition and also each of its allegations not admitted therein. This answer thereupon set forth that this defendant had assigned its interest in a certain described mortgage given it by Joe Henneberry and Julia Henneberry to the Minnesota Baptist Convention of Minneapolis, Minnesota; that, as such assignor, it had no interest in the litigation and requested that the suit be dismissed as to it.

The defendant Minnesota Baptist Convention of Minneapolis, Minnesota, also filed its separate answer in which it denied both the title alleged in said petition and each of the allegations of that pleading which were not by said answer admitted. This answer admitted that this defendant claimed an interest in the premises aforesaid, but denied that such interest was inferior to plaintiffs' title. It then alleged in substance that on March 20, 1920, Joe Henneberry and Julia Henneberry, his wife, executed and delivered to Barnes Brothers, Incorporated, a mortgage, duly recorded on March 26, 1920, for $ 1700, on said land, as security for their promissory note of even date for that amount, copies of the mortgage and note being attached to and made a part of the answer; that on September 8, 1920, for a consideration of $ 1700, the mortgagee aforesaid assigned said note and mortgage to this defendant, said assignment being duly recorded on September 27, 1920; that on or about July 7, 1923, the Treasurer of Laramie County, Wyoming, sold said lands for the 1922 taxes to one J. E. Nash, certificate of sale being by the latter assigned to one F. A. Heckel on April 28, 1927, who, on September 3, 1927 obtained a tax deed from said Treasurer, duly recorded on September 6, 1927, its consideration being $ 34.00; that on or about September 26, 1927, Heckel and wife by deed quitclaimed said land to Louis G. Davis and Merle Henneberry, said instrument being recorded October 7, 1927, and reciting a consideration of $ 1.00 and other valuable considerations; that on July 25, 1929, the said Treasurer sold the lands to one J. R. Wilkinson for the delinquent taxes of 1928 and issued to him a certificate of sale; and that the mortgage aforesaid is a good and subsisting lien against said lands, the same being neither cancelled nor satisfied, the said plaintiffs holding the land under said quitclaim deed and having only a "perpetual lien on said lands inferior and subject to" said mortgage.

In connection with its answer, the Minnesota Baptist Convention of Minneapolis, Minnesota, filed a cross-petition asking that Joe Henneberry and Julia Henneberry be made parties to the action, that a judgment be rendered against them for the amount due on the note above mentioned, and that the mortgage held by this defendant be foreclosed and the property sold to make the amount of the debt.

Plaintiffs replied to the answer of the Barnes Brothers, Incorporated, alleging that it "is the holder of a commission mortgage on the property described in plaintiffs' petition herein and that said mortgage is subject and inferior to plaintiffs' claim of title as set forth in said petition," and to the separate answer and cross-petition of the Minnesota Baptist Convention of Minneapolis, Minnesota, denying "each and every allegation in said answer and cross-petition contained."

The District Court thereafter, upon hearing had, by its order denied the cross-petition aforesaid to have Joseph Henneberry and Julia Henneberry made parties to the suit.

The cause was tried to the court without a jury and on written request the court made and filed its findings of fact and conclusions of law. The findings of fact in substance set forth the execution, delivery and assignment of the note and mortgage as pleaded in the answer of the Minnesota Baptist Convention of Minneapolis, Minnesota, as aforesaid, that the latter is the owner of same, that the mortgage is unsatisfied, no interest having been paid on the note it secured except for the first year, and that the mortgage and its assignment are each duly recorded as pleaded. The findings also detail the several procedural steps offered in evidence by plain...