Frank v. Hicks

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtCONAWAY, JUSTICE.
Citation4 Wyo. 502,35 P. 475
Decision Date14 March 1894
PartiesFRANK v. HICKS, TRUSTEE, ETC., HICKS, TRUSTEE, ETC., v. FRANK. HICKS, TRUSTEE, ETC., v. BADGETTE

35 P. 475

4 Wyo. 502

FRANK
v.
HICKS, TRUSTEE, ETC.,

HICKS, TRUSTEE, ETC.,
v.

FRANK.

HICKS, TRUSTEE, ETC.,
v.

BADGETTE

Supreme Court of Wyoming

March 14, 1894


4 Wyo. 502 at 534.

Original Opinion of January 16, 1894, Reported at: 4 Wyo. 502.

Rehearing denied.

Potter & Burke, on petition for rehearing, contended that before the trust deed could be held to operate as an equitable mortgage, it must appear that the corporation was under obligation to execute a good mortgage; that they had agreed to do so, and had actually received a consideration for such promise. That the evidence to show such an obligation was entirely lacking, and cited Borden v. Trustees, etc., 21 A. 40; Massop v. his creditors, 6 So. 134.

CONAWAY, JUSTICE. GROESBECK, C. J., and BLAKE, Dist. J., concur.

OPINION

[4 Wyo. 534] ON RE-HEARING.

CONAWAY, JUSTICE.

It is urged that the defectively executed trust deed held by the trial court and by this court to be an equitable mortgage, became such only when declared to be so by the judgment of the trial court. We are of the opinion that such is not the law. The court did not make an equitable mortgage by its decree, but found one already existing, which it foreclosed.

Much has been said as to possible fraud. There is no scintilla of evidence tending to show fraud.

The defectively executed trust deed has been spoken of as a promise to execute a trust deed, or mortgage. It is more. It is an attempt to execute a legal trust deed, and the actual execution of an equitable mortgage.

It is urged that an equitable mortgage does not take effect on after acquired property. Why not is not apparent. It would seem it should take effect, if at all, according to its terms, so far as these terms are lawful and valid.

Rehearing denied.

GROESBECK, C. J., and BLAKE, Dist. J., concur.

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29 practice notes
  • Laramie Irrigation & Power Co. v. Grant, 1766
    • United States
    • United States State Supreme Court of Wyoming
    • July 21, 1932
    ...and the usurpation of authority in unadjudicated controversies may be enjoined. Plaintiff's water right is property. Frank v. Hicks, 4 Wyo. 502; McPhail v. Forney, 4 Wyo. 556; Farm Investment Co. v. Carpenter, 9 Wyo. 110; Johnston v. Little Horse Creek Irr. Co., 13 Wyo. 208. Appropriators o......
  • Tuttle v. Rohrer, 822
    • United States
    • United States State Supreme Court of Wyoming
    • June 29, 1915
    ...construction rights are acquired. (727 Comp. Stats. 1910.) The right attaches to the land. (Sec. 724, Comp. Stats. 1910; Frank v. Hicks, 4 Wyo. 502.) It may be sold separate from the lands. (McPhail v. Forney, 4 Wyo. 556.) Property may be tangible or intangible, corporal or incorporal. (Vol......
  • The Farmers State Bank v. Haun, 1148
    • United States
    • United States State Supreme Court of Wyoming
    • January 8, 1924
    ...16 S.D. 241, 92 N.W. 23; Curtis v. Natalie Anthracite Coal Co., 89 A.D. 61, 85 N.Y.S. 413, 181 N.Y. 534, 73 N.E. 1122; Higgins v. Frank, 4 Wyo. 502. Allegations of indorsement and transfer are sufficient to show plaintiff's title, 18 C. J. 887; Stamper v. Gay, 3 Wyo. 321; Higgins v. Bullock......
  • Holliday v. Templin, 2152
    • United States
    • United States State Supreme Court of Wyoming
    • June 18, 1940
    ...Penton, 45 Wyo. 82; McPhail v. Forney, 4 Wyo. 556. Before water can be appurtenant to land it must be used upon that land. Frank v. Hicks, 4 Wyo. 502; 2 Kinney on Irrigation 1790, et seq. Plaintiff failed to show what water was used on the land. Farm Investment Company v. Gallup, 13 Wyo. 20......
  • Request a trial to view additional results
29 cases
  • Laramie Irrigation & Power Co. v. Grant, 1766
    • United States
    • United States State Supreme Court of Wyoming
    • July 21, 1932
    ...and the usurpation of authority in unadjudicated controversies may be enjoined. Plaintiff's water right is property. Frank v. Hicks, 4 Wyo. 502; McPhail v. Forney, 4 Wyo. 556; Farm Investment Co. v. Carpenter, 9 Wyo. 110; Johnston v. Little Horse Creek Irr. Co., 13 Wyo. 208. Appropriators o......
  • Tuttle v. Rohrer, 822
    • United States
    • United States State Supreme Court of Wyoming
    • June 29, 1915
    ...construction rights are acquired. (727 Comp. Stats. 1910.) The right attaches to the land. (Sec. 724, Comp. Stats. 1910; Frank v. Hicks, 4 Wyo. 502.) It may be sold separate from the lands. (McPhail v. Forney, 4 Wyo. 556.) Property may be tangible or intangible, corporal or incorporal. (Vol......
  • The Farmers State Bank v. Haun, 1148
    • United States
    • United States State Supreme Court of Wyoming
    • January 8, 1924
    ...16 S.D. 241, 92 N.W. 23; Curtis v. Natalie Anthracite Coal Co., 89 A.D. 61, 85 N.Y.S. 413, 181 N.Y. 534, 73 N.E. 1122; Higgins v. Frank, 4 Wyo. 502. Allegations of indorsement and transfer are sufficient to show plaintiff's title, 18 C. J. 887; Stamper v. Gay, 3 Wyo. 321; Higgins v. Bullock......
  • Holliday v. Templin, 2152
    • United States
    • United States State Supreme Court of Wyoming
    • June 18, 1940
    ...Penton, 45 Wyo. 82; McPhail v. Forney, 4 Wyo. 556. Before water can be appurtenant to land it must be used upon that land. Frank v. Hicks, 4 Wyo. 502; 2 Kinney on Irrigation 1790, et seq. Plaintiff failed to show what water was used on the land. Farm Investment Company v. Gallup, 13 Wyo. 20......
  • Request a trial to view additional results

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