Delfelder v. Poston, 1611

• Decision Date: 10 November 1930
• Docket Number: 1611
• Parties: DELFELDER v. POSTON, ET AL
• Court: Wyoming Supreme Court

293 P. 354

42 Wyo. 176

DELFELDER v. POSTON, ET AL

No. 1611

Supreme Court of Wyoming

November 10, 1930

ERROR to District Court, Fremont County; JAMES H. BURGESS, Judge.

Action by Evelyn M. Delfelder, as executrix of the last will and testament of Jacob A. Delfelder, deceased, against Lon J Poston and others. Judgment for plaintiff for part of relief claimed, and plaintiff brings error.

Affirmed.

For the plaintiff in error there was a brief by E. E. Enterline and E. Paul Bacheller, both of Casper, and M. C. Burk of Phoenix Arizona, and oral arguments by Mr. Enterline and Mr Bacheller.

Plaintiff in error as special administratrix and executrix was entitled to possession of the property in controversy and it was her duty to take possession thereof. 6829, 6834 C. S. Bank v Ludvigsen, 8 Wyo. 230; Bamforth v. Ihmsen, 28 Wyo. 283; Devereaux v. Anderson, (Wash.) 284 P. 422; and she had a right of action for conversion of the property. 6835 C. S. Cook v. Elmore, 25 Wyo. 393. Defendants' acts constituted conversion. Bowers on Conversion, Sec. 257; Gibbons v. Farwell, 63 Mich. 344; 6 A. S. R. 301; State Bank v. Stockgrowers Bank, 22 Ariz. 354; 26 R. C. L. 1098; Hunt v. Bank, (Ore.) 202 P. 564; Mier v. Co., (Cal.) 206 P. 83; Cram v. Whitehead, (Utah) 208 P. 534; U.S.C. C. v. Sautbine, (Okl.) 259 P. 252; Shaw v. Palmer, (Cal.) 224 P. 106. Unlawful acts by mortgagee, constituted conversion, 11 C. J. 589; Marchand v. Ronaghan, (Ida.) 72 P. 731; Bank v. Butler, 217 P. 189; Continental Gin Co. v. DeBord, (Okl.) 123 P. 159; Advance T. Co. v. Doke, (Okla.) 129 P. 736; Wettlin v. Jones, 32 Wyo. 446; Brown v. Polen, (Okl.) 270 P. 9; Farmer v. Bank, 130 Iowa 469; Penalosa v. Co., (Kas.) 276 P. 70; Hardy v. Peterson, (Mont.) 282 P. 494. It is unnecessary to show that defendant had actual possession. 26 R. C. L. 1110; Hooser v. Carlton Co., (Tex.) 288 S.W. 1095; 38 Cyc. 2023, 485. All participants are guilty. Gualdoni v. Robinson, 230 Ill.App. 228; Carpenter v. Scott, (Okla.) 235 P. 162; Ratcliffe v. Walker, (Va.) 85 S.E. 585. Unlawful sale by mortgagee is conversion, Bank v. Warner, (Wash.) 248 P. 394. There was a plain violation of Secs. 6830, 6831 and 6832 C. S. State v. Court, 31 Wyo. 413. California probate decisions are followed in Wyoming. Crumrine v. Reynolds, 13 Wyo. 111; Cook v. Elmore, 25 Wyo. 398; Wood v. Wood, 25 Wyo. 26. This statute was construed in Jahns v. Nolting, 29 Cal. 508, and that case was followed in Oklahoma. Aultman Co. v. Fuss, 207 P. 308; Litz v. Bank, (Okla.) 83 P. 790; Secrest v. Wood, 224 P. 349; 38 Cyc. 2024; Hodgson v. Hatfield, (Okla.) 240 P. 69; Bank v. Keller, (Okl.) 256 P. 34. The right of recovery is fixed by statute. The words used in Sec. 6832 are mandatory. Brennan v. Co., 29 Wyo. 116; Delfelder v. Bank, (Wyo.) 269 P. 418; Auto Co. v. Co., 285 P. 1035. The transactions occurred before plaintiff was appointed executrix, and she could not consent in her representative capacity. There is no evidence from which it could be inferred that she had knowledge of the transaction. Wright v. Conway, 34 Wyo. 1. Nor that she consented to delivery of property to Poston. Pence v. Langdon, 25 L.Ed. 420. The doctrine of laches does not apply, where one is ignorant of facts creating his cause of action. 1 C. J. 244. There must be knowledge sufficient to constitute estoppel. Harney v. Montgomery, 29 Wyo. 362. Limitation runs from discovery of a fraud. 5969 C. S. Findings must respond to material issues. Skeen v. Van Sickle, (Utah) 268 P. 562. A valid judgment must not only rest on pleadings, but also on findings. Evans v. Shand, (Utah) 280 P. 239; Lobb v. Brown, (Calif.) 281 P. 1010. A plea of subrogation must show equity and be supported by proof. 20 Ency. Pl. and Pr. 997; 37 Cyc. 390; 25 R. C. L. 1395; Aultman v. Bishop, 74 N.W. 55; State v. McDonald, (Ore.) 274 P. 1104; 25 R. C. L. 1326; Gilbert v. Finch, 66 N.E. 133. There was no evidence of mortgage indebtedness. Bank v. Jackson, (Okl.) 170 P. 474. Where special findings are requested, an oral opinion by the trial court should not be considered. Stevens v. Laub, 38 Wyo. 182; Dixon v. Stoetzel, (Okla.) 276 P. 730; Standard Co. v. Ins. Co., 213 N.W. 543.

The property was not taken under the insecurity clause of the mortgage. The court erred in restricting counsel in his examination of plaintiff.

Pratt v. Pratt, (Cal.) 74 P. 742. Authorities on estoppel are in favor of plaintiff. 21 C. J. 1113, 1119; Moore v. Sherman, (Mont.) 159 P. 966; Dye v. Crary, 85 P. 1042; Brant v. Co., 93 U.S. 326; California Co. v. Grocery Co., 15 F.2d 839; Bank v. Harlan, (N. M.) 234 P. 305; Seaman v. Canal Co., 29 Wyo. 391; Carstensen v. Brown, 26 Wyo. 356. 2 Pomeroy's Eq. 805. Other cases on equitable estoppel are: Faulkner v. Bank, 231 P. 380; Saylor v. Coal Co., (Ky.) 266 S.W. 388; Laberee v. Laberee, (Ore.) 228 P. 686; Ward Co. v. Walleat, (Minn.) 199 N.W. 738; Fosgatte v. Co., 229 F. 963; Waddell v. Dist., 238 P. 884.

For the defendants in error there was a brief, and also oral arguments by Nellis E. Corthell and William E. Mullen of Cheyenne, Wyoming.

This case is another form of the controversy that was before this court in Poston v. Delfelder, 39 Wyo. 163, the initial stage of which is recorded in State v Court, 31 Wyo. 413. Where there is a conflict of evidence, findings of the trial court will not be disturbed, if sustained by substantial evidence, and it is unnecessary to cite authority for this rule. Standard Oil Co. v. Sullivan, 33 Wyo. 223; Mulhern v. Mahs, 284 P. 123. Aside from the question of value found against plaintiff, only two questions are presented to this court. (1) The existence of the mortgage debt and the propriety of the application of the ascertained value of the mortgaged property. (2) The right of plaintiff to double value of the property under 6830 C. S. Plaintiff's brief apparently deals generally with irrelevancies, which cannot affect the result. The oral opinion of the court cannot be substituted for its findings. Empire Company v. Blanchard, 31 O. S. 650. The exception taken to the court's conclusions is general, and does not raise the question of insufficiency of the findings. Hilliard v. Oil Fields, 20 Wyo. 201; Reece v. Rhoades, 25 Wyo. 91; Sewall v. McGovern, 29 Wyo. 62. It is not the right of the parties to have their own interpretations and conclusions, placed upon the evidence and the law, nor to have the court render an abstract of the evidence. 5784 C. S. Plaintiff accepted $ 140,000 from Poston, and joined him in a petition to the court to complete the sale of the property negotiated by decedent, in his lifetime, and to transfer the property to Poston. The court granted the petition, and conveyances were subsequently made by plaintiff. On or about October 1, 1921, or about four years later, plaintiff commenced this action for conversion. The mortgage indebtedness was admitted. Payment of an admitted debt is a burden resting upon the debtor. Schlessinger v. Cook, 9 Wyo. 256; Chapman v. Corrothers, 21 Wyo. 152. Indebtedness once shown to exist is presumed to continue. Sullivan v. Shea, 162 P. 925; Bensen v. Reger, 168 N.W. 881; Weidenhoft v. Primm, 16 Wyo. 340. Proceeds or value of the mortgaged property were properly credited on mortgage debt. Daggett v. McClintock, 56 Mich. 51; Jordan Co. v. Sperry Bros., 119 N.W. 692. This right of the mortgage creditor may be interrupted, hindered, delayed, and sometimes obscured, but is not extinguished. Rock Springs Bank v. Luman, 6 Wyo. 123. There is no conversion where one takes even forcibly, what he is entitled to possess. 38 Cyc. 2020, or even taken under a void contract, or receives proceeds of the conversion. 38 Cyc. 2018, 2019. Continental Gin Co. v. DeBord, 123 P. 159; and there is no conversion, unless there be a consequent loss resulting from the act complained of. 2 Woerner's Law of Administration 191; Rutherford v. Thompson, (Ore.) 12 P. 382, 384; Harding v. Bank, (Wash.) 221 P. 599; Sugg v. Gridley, (Wash.) 172 P. 545. A mortgagor may surrender mortgaged property to the mortgagee, with like effect as a formal foreclosure. Finance Corp. v. Commercial Credit Co., (Wyo.) 283 P. 1100. This right is not cut off by bankruptcy. Great Northern Bank v. Ryan, 292 F. 10. A mortgagee may take possession notwithstanding death of mortgagor. Matthews v. Matthew, 71 P. 344; Dawkins v. Trust Co., (Okla.) 245 P. 595; Emerson Co. v. Anderson, (Mont.) 194 P. 160. The permission of mortgagor to retain possession was personal to Delfelder, and did not extend to his heirs, or legal representatives, and terminated on his death, revesting title of possession in mortgagee. Hill v. Winnsboro Corp., 112 S.C. 243; First National Bank v. Cook, 12 Wyo. 492. Here the mortgage debt exceeded the value of the property; the interest of mortgagor or his representatives could not attach to anything except the surplus value, since there was no surplus value, there was nothing to recover. Thompson v. Anderson, (Ia.) 53 N.W. 418; Botsford v. Murphy, (Mich.) 11 N.W. 375; Bank v. Buckner, (Okla.) 217 P. 189. If value of mortgaged property had exceeded the debt, recovery would have been measured by such excess, whether the debt be recorded as a mitigation or an offset. Carlson v. Schooch, 170 N.W. 196; Coad v. Cattle Co., (Nebr.) 49 N.W. 757; James v. Spear, (Mont.) 220 P. 535; Swank v. Elwart, (Wash.) 105 P. 901. A like result may be urged under 5667 C. S. The demand of the mortgagee for the debt, and that of the mortgagor for value of the property, are by operation of law, mutually compensated by this principle. This would be true whether mortgagor's demand arose on a sale, a surrender, or a conversion, and is not defeated by assignment or death. Mollendorp v. Bank, (Ia.) 166 N.W. 733; Manchester v. Bursey, (Tex.) 91 S.W. 817; Perkins v....