Ferguson v. Haygood

• Decision Date: 12 December 1950
• Docket Number: No. 2467,2467
• Citation: 67 Wyo. 422,225 P.2d 336
• Parties: FERGUSON et al. v. HAYGOOD.
• Court: Wyoming Supreme Court

Page 336

225 P.2d 336

67 Wyo. 422

FERGUSON et al. v. HAYGOOD.

No. 2467.

Supreme Court of Wyoming.

Dec. 12, 1950.

A. D. Walton, C. E. Lane, Cheyenne, for appellant.

Clarence A. Swainson, Cheyenne, for respondents.

BLUME, Justice.

This is an action for unlawful detainer originally commenced in the Justice's Court and appealed to the District Court of Laramie County, Wyoming. From a judgment entered in the District Court in favor of the plaintiffs the defendant has appealed to this court.

It appears herein that on March 21, 1928, Saphronia A. Haygood executed a note in favor of Nora E. Scott for the sum of $5,538.92 without interest prior to the death of the maker of the note but with interest at the rate of 6% per annum thereafter, the maker of the note agreeing to pay all costs, expenses and attorney's fee in case of suit or in case the note or any balance thereof should be in default of payment. The note was made payable on or before five years after date. Simultaneously, with the execution of the note hereinabove mentioned, Saphronia A. Haygood, an unmarried woman of Laramie County, Wyoming, made and executed to Nora E. Scott her mortgage on the following described property owned by her: 'All lands south of the Union Pacific Railroad Track in Section 15, the North Half of the North Half of Section 21, the North Half of the North Half of Section 22, and the North Half of the Northwest Quarter of Section 23, all in Township 13 North, Range 70 West 6th P. M.' located in the County of Laramie and State of Wyoming. The mortgage secures the payment of the note hereinabove mentioned. It further provides that: 'And in case default shall be made in the payment of the said principal sum of money hereby intended to be secured, or in the payment of the interest thereof, or any part of such principal or interest, as above provided, then it shall and may be lawful for the said party of the second part, her heirs, executors, administrators or assigns, to sell and dispose of said above described premises, and all the right, title, benefit and equity of redemption of said party of the first part, her heirs of assigns therein, at public auction, for cash, according to the statute in such case made and provided, and in the manner therein prescribed, and out of the money arising from such sale, to retain the said principal and interest, together with the costs and expenses of such sale, and Five Hundred Dollars for attorney, solicitor or counsel fees.' The mortgage was duly filed of record in the office of the County Clerk of Laramie County on March 23, 1928.

Saphronia A. Haygood, the mortgagor above mentioned, died on or about October 30, 1928, leaving a last will and testament which was admitted to probate in Laramie County, Wyoming, on November 30, 1928. And Nora E. Scott, the mortgagee hereinabove mentioned, was pursuant to the provisions in the will appointed as executrix thereof and letters testamentary were granted to her. On November 29, 1948 she filed in the matter of the estate of Saphronia A. Haygood a statement to the effect that she was the holder of the promissory note and mortgage above mentioned, and that she: 'has elected to foreclose the above-described mortgage by advertisement under the power of sale contained in said mortgage and pursuant to the law in such cases made and provided, and hereby waives all recourse against the property of the above-entitled estate except the property of said estate subject to the lien of said mortgage.' Thereupon, due notice of foreclosure of the mortgage was published in the Wyoming Tribune on October 28, November 4, November 11 and November 18, 1948, reciting the mortgage above mentioned; that the payment therein provided to be made is in default; that the amount due at the time of the first publication of the notice is the sum of $12,157.89 together with the sum of $500 as attorney's fee; that no suit or proceeding at law has been instituted to recover the debt secured by said mortgage or any part thereof; that said mortgage contains full power of sale; that accordingly said mortgagee will cause the mortgage premises in said mortgage to be sold at public auction by the Sheriff or Deputy Sheriff of Laramie County, Wyoming, at the south front door of the Court House, also known as the City and County Building, in the City of Cheyenne, Laramie County, Wyoming, on the 29th day of November, 1948, at 11:00 o'clock in the forenoon of that day. The premises are described as hereinabove mentioned. On the date above mentioned the Sheriff of Laramie County sold the premises above mentioned to Walter C. Ferguson, Sr., Martin Ferguson and Walter C. Ferguson, Jr., doing business as Walter C. Ferguson and Sons, for the sum of $15,200 and on the same day the sheriff executed a certificate of sale to the purchasers which was duly filed of record on December 2, 1948. On June 7, 1949 the purchasers of the premises above mentioned caused notice to be served upon H. R. Haygood, the defendant herein, describing the land above mentioned and stating that he was withholding the possession of the premises from said purchasers without any lawful right thereto; that the real estate had been sold under a power of sale contained in a mortgage deed; and that unless the said H. R. Haygood would quit the premises and surrender possession to the purchasers within three days from the date of service of this notice, an action would be commenced against him to recover possession of said premises and damages for the wrongful detention thereof. On June 29, 1949 after non-compliance with this notice, the purchasers above mentioned commenced an action against H. R. Haygood, the complaint and petition stating as follows: 'Plaintiffs complain of defendant as follows: That plaintiffs are the purchasers of, and entitled to the immediate possession of the premises in Laramie County, Wyoming, described as: all lands south of the Union Pacific Railroad in Section 15, the N 1/2 N 1/2 of Section 21, N 1/2 N 1/2 of Section 22, and N 1/2 NW 1/4 of Section 23, all in Township 13 N. R. 70 West of the Sixth P. M.; said lands having been sold on November 29, 1948 to plaintiffs by the Sheriff of Laramie County, Wyoming, under power of sale contained in a mortgage. That defendant unlawfully, wrongfully and forcibly detains and withholds the possession of said premises from plaintiffs, although plaintiffs are entitled to the immediate possession of same; that more than six months has elapsed since the date of sale of said lands under foreclosure by advertisement and sale, and plaintiffs as purchasers thereof are entitled to possession and to the rents and profits of said lands and tenements under and by virtue of Section 3-4304 Wyoming Compiled Statutes, 1945. That on or about the 7th day of June, 1949 defendant was duly served with a written notice by plaintiffs to quit the said premises within three days from the date of service of said notice but that defendant has refused and neglected, and still refuses and neglects to surrender possession of said premises to plaintiffs. That by reason of the wrongful acts of defendant in withholding possession of said premises from plaintiffs said plaintiffs have been deprived of the rents, issues and profits of said premises to their damage in the sum of two hundred dollars ($200.00). Wherefore, plaintiffs pray for restitution of said premises, and for damages in the sum of $200.00 and accruing rents, issues and profits, and for costs.' The defendant appeared in the case and filed an answer and demurrer. He denied that plaintiffs had the right of possession of the property in controversy. He claimed that title to the real estate is involved and is now in litigation in the District Court of Laramie County, Wyoming, and for that reason the court had no jurisdiction of the subject matter of this action. He attached a third amended petition in a case, commenced in the District Court in which the title of plaintiffs was attacked for various reasons. Defendant further asserted that the petition fails to state facts sufficient to constitute a cause of action.

Judgment was rendered in favor of the plaintiffs in the Justice's Court. Defendant thereupon appealed to the District Court where the case was tried de novo and judgment again resulted as above mentioned in favor of the plaintiffs from which the appeal herein has been taken.

1. Sufficiency of the Petition.

It is claimed that the petition fails to state facts sufficient to constitute a cause of action. But it is not pointed out in what the deficiency consists. Section 14-1501 Wyo.Comp.St. 1945 provides for two classes of cases in which an action of the kind before us may be brought, namely first where an unlawful and forcible entry is made, and second where a lawful and peaceable entry has been made, but the premises are subsequently unlawfully or forcibly detained. We are here dealing with one of the second class of cases, namely with unlawful detainer--although commonly embraced, as in our statute--in the term 'forcible entry and detainer.' It seems that the statutes of some of the states (aside probably from cases where a tenant holds over--see 36 C.J. 627, 52 C.J.S., Landlord and Tenant, § 758(2)) provide only for the first of these classes. 36 C.J.S., Forcible Entry and Detainer, § 10, p. 1151, 22 Am.Jur. 917, Section 14. These statutes are designed to protect parties in peaceable possession of property, and that they shall not be turned out by strong hand, violence or terror. In these cases the complainant must have had prior possession, while in unlawful detainer under statutes such as ours prior possession by the complainant is not nescessary. 36 C.J.S., Forcible Entry and Detainer, § 9, p. 1151, 22 Am.Jur. 909-910, Section 6. Section 14-1502, Wyo.Comp.St. 1945 seems to provide in the main at least, for specific cases of unlawful detainer, including cases against tenants holding over their term, and including ca...