Federal Land Bank v. Sells

• Decision Date: 10 September 1929
• Docket Number: 1564
• Citation: 280 P. 98,40 Wyo. 498
• Parties: FEDERAL LAND BANK v. SELLS, ET AL [*]
• Court: Wyoming Supreme Court

280 P. 98

40 Wyo. 498

FEDERAL LAND BANK v. SELLS, ET AL ^[*]

No. 1564

Supreme Court of Wyoming

September 10, 1929

APPEAL from the District Court, Fremont County; EDGAR H. FOURT Judge.

Action by the Federal Land Bank of Omaha against J. H. Sells and another to recover damages for the removal by defendants of fixtures from the mortgaged property and enjoin removal of improvements after foreclosure sale. There was judgment for plaintiffs, and defendants appeal.

Judgment reversed and case remanded.

The cause was submitted for the appellants on the brief of John J. Spriggs of Lander.

The injunction was wrongfully issued. 5675 C. S. The petition alleged facts showing defendants to be strangers to the title; waste does not lie against a stranger. 27 R. C. L 1012; Atkins v. Chilson, 7 Met. 398; Poindexter v. Henderson, 12 Am. Dec. 550. Plaintiff must have possession to maintain trespass. 26 R. C. L. 955. It was not shown that alleged acts of trespass were committed after expiration of redemption period. The petition did not state facts showing injury and there was no proof that security was impaired. 19 R. C. L. 323-324; Anderson v Englehart, 108 P. 977. It was not alleged that the fixtures were a part of the realty. Lavenson v. Co., 22 P. 184; Webber v. Ramsay, (Mich.) 58 N.W. 625. The fixtures had been detached before the sale. Findings of the court as to alleged fixtures were not made issues by the pleadings; the articles removed were not fixures. Mort Co. v. Miller, 56 P. 382. Heating apparatus is not fixtures. Towne v. Fiske, 127 Mass. 125; Schellenberry v. Heating Co., (Mich.) 90 N.W. 47; 11 R. C. L. 1079; Slane v. Curtis, 269 P. 31. The alleged nunc pro tunc order made by the court, covered matters that had not occurred and it was error. 23 R. C. L. Sec. 18. An order without facts to support it, is void. State v. Court, 238 P. 549. Findings as to damages are unsupported as to evidence. 26 R. C. L. 940. The judgment for contempt was void. Ex Parte Dawes, 239 P. 689. Blanton v. State, 239 P. 699; State v. Court, 238 P. 549. Plaintiffs have the money, also attachment and stay bond; the money should have been released. Bank v. Millard, 26 Wyo. 404; Crable v. O'Connor, 21 Wyo. 475; Bank v. Hahn, 29 Wyo. 328. It clearly appears from the record that defendants are entitled to judgment or a new trial.

The cause was submitted for the respondent on the brief of M. C. Burk of Riverton.

The finding of the jury as to the value of the property and plaintiffs right of recovery, would seem to be conclusive and those matters were submitted to the jury upon proper instructions. The removal of fixtures from real estate by one in possession, is a matter of equitable jurisdiction. One violating a court order is not in position to complain, or seek relief in equity; defendant admits the violation of a court order. Defendants were tenants by sufferance and subject to an action for waste. 16 R. C. L. 617; Pomeroy's Equitable Jurisprudence, Vol. 4, page 1345. Defendants were bound by their answer and no reply was necessary. Bates Pleading and Practice, Vol. 1, page 383. They are estopped to controvert allegations or admissions in other pleadings. 31 Cyc. 87; Nugent v. Powell, 4 Wyo. 173; 20 R. L. A. 99. Defendants appeal and stay bond did not discharge the attachment or authorize release of the money under garnishment. 3 C. J. 1315. A stay bond merely suspends proceedings pending the determination of an appeal, or proceedings in error. 3 C. J. 1315. But will not vacate or annul what has already been done. 13 C. J. 1325. The judgment of the trial court was in accordance with the evidence and no authority has been cited in support of a modification or reversal of the judgment entered.

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

OPINION

KIMBALL, Justice.

The defendants, June 19, 1922, to secure a debt of $ 4,000, gave plaintiff a mortgage on 160 acres of land and its appurtenances. Under power of sale, the mortgage was foreclosed, and the mortgaged property acquired by plaintiff, by proceedings which included advertisement from February 4 to March 11, 1927; sale to plaintiff on March 19, 1927, and deed to plaintiff on October 11, 1927.

On November 12, 1927, plaintiff commenced this action. The petition alleged that, under the deed on foreclosure, plaintiff was the owner and entitled to the immediate possession of the land and its improvements; that defendants were formerly the owners and in possession, and since foreclosure had continued in possession; that defendants had wrongfully removed and disposed of valuable improvements consisting of wire fencing of the value of $ 300, to which the plaintiff was entitled; that defendants threatened to remove and destroy other improvements including a "lighting system, water tanks, pump and engine parts." The prayer of the petition was for recovery of $ 300, the value of the wire fencing, and for an injunction restraining the defendants from taking down or removing any improvements or fixtures, particularly the lighting system, water tanks, pump and engine parts. At the commencement of the action a temporary restraining order, substantially as prayed for, was issued and served on defendants.

The defendants' answer denied the allegations of the petition, and alleged that the articles claimed by plaintiff as improvements or fixtures, were the "personal goods" of defendants.

The case was tried to a jury to whom were submitted the issues on plaintiff's cause of action for damages for removal of the wire fencing. On those issues, the jury returned a verdict for plaintiff fixing its damages at $ 100. During the trial, the defendant, J. H. Sells, who was called for cross-examination by plaintiff, admitted that, after the service of the temporary restraining order, he had removed from the land articles mentioned in the restraining order, and also a heater or heating plant.

The trial was concluded, and the verdict for plaintiff for $ 100 damages for removal of the wire fencing returned, June 14, 1928. On June 15, 1928, the plaintiff filed an "application for an order of attachment for contempt," in which it was stated that defendant, J. H. Sells, during the trial of the case, had admitted that he had violated the court's restraining order by taking from the land improvements and fixtures of the approximate value of $ 600. The plaintiff prayed that defendant be brought before the court on an attachment for contempt, and that he be punished and required to make restitution to the plaintiff.

The application for an attachment for contempt apparently was not granted, nor otherwise acted on. No attachment for contempt was issued or served, nor does the record show that defendants were notified of the filing of the application. On the day the application was filed, which was the day following the trial and verdict, the judgment was entered. It is a judgment on the verdict for the damages thereby assessed, and for costs. The temporary restraining order is made permanent. It is found that the heating plant, and the articles specifically mentioned in the temporary restraining order, were fixtures, and property of plaintiff, and had been removed by defendant, J. H. Sells, wrongfully and in disobedience of the order of the court. The defendant, J. H. Sells, is adjudged in contempt, and ordered to return the property, or pay plaintiff the value found to be $ 500. The defendants appeal from the judgment.

The wire fencing in question consisted of strips of woven wire, 26 inches wide, such as is in common use to reenforce fences of lands on which sheep or hogs are confined. The defendant, J. H. Sells, testified that he removed from the land about 100 rods of such wire that had previously been in use on the land in maintaining what he claimed was a temporary sheep pasture. The woven wire, when so in use, was fastened by means of baling wire to the barbed-wire fence, and supported between the fence posts by additional posts or stakes. So far as the evidence discloses, the woven wire was removed without damage to the barbed-wire fence to which it had been attached. The plaintiff contended that the woven wire, so attached, became a fixture. It is apparently conceded that the question whether or not it was a fixture, was one of fact for the jury.

While the evidence was sufficient to support the finding that the woven wire was a fixture, we think the jury were permitted to consider on that question irrelevant evidence which, in view of the court's instructions, was probably prejudicial to defendants. The loan secured by the mortgage was made on defendants' written application on a blank furnished for that purpose. The application was for a loan of $ 6500. The land was then encumbered by a mortgage to W. M. Wingert to secure a debt which with interest amounted to some $ 4800. The defendants, in their application to plaintiff for the loan of $ 6500, represented that $ 4800 would be used to discharge the Wingert mortgage; $ 325 to pay for shares of stock in the National Farm Association, and $ 1375 to construct "hog barns and woven wire fencing." The application was granted for only $ 4000, of which defendants were required to invest $ 200 in shares of stock of the farm association. This left $ 3800, of which all but $ 25 was paid on the Wingert mortgage. The plaintiff, over objection, introduced this application in evidence. The jury were instructed that the application was introduced to show "that the defendants made a representation at the time of their application for their loan which was secured by mortgage, that the money to be advanced was partly to be used for purchase of hog wire, and that by the terms of the mortgage, such application became a part thereof and one of the conditions of said...