Grasswick v. Miller
| Decision Date | 11 May 1928 |
| Docket Number | 6305. |
| Parties | GRASSWICK v. MILLER. |
| Court | Montana Supreme Court |
Appeal from District Court, Pondera County; John J. Greene, Judge.
Action by Rosie Grasswick against Randolph H. Miller. Judgment for defendant, and plaintiff appeals. Affirmed.
Arnot & Doyle, of Conrad, and C. A. Spaulding, of Helena, for appellant.
Cooper Stephenson & Hoover and Robert O. Kerr, all of Great Falls for respondent.
Appeal from a judgment and decree in favor of defendant, in an action brought by plaintiff to quiet title in her to certain lands in Pondera county.
Plaintiff commenced action to quiet title to a tract of land described in her complaint, of which she therein alleged she is the "owner in fee and in possession;" her complaint further alleges that defendant claims an interest in the land, which claim is without right.
Defendant answered, denying plaintiff's assertion of ownership, and alleging that he is the holder of the fee-simple title to the land described in the complaint. He sets up a number of alleged special defenses, which, as a whole, amount only to the following allegations: That in 1910 the plaintiff, with her husband, Emil Grasswick, "made, executed, and delivered to one Ebenezer G. Ranney their certain promissory note in the sum of * * * $3,500, * * * which they secured by a real estate mortgage upon the property described in the complaint," which mortgage contains the usual covenants of seizin; that the mortgagors failed to pay the note when due, and Ranney "foreclosed the mortgage and purchased the property at foreclosure sale," and thereafter "in the manner prescribed by law" received a sheriff's deed to the property in the year 1915. It is then alleged that thereafter the property was transferred to defendant, in one of the special defenses, and in another it is alleged that Ranney died in 1925, and, by proceedings regularly had, Homer H. Jones was regularly appointed executor of the estate, letters issued, and Jones duly qualified, and that in 1926, "by proceedings regularly had in the district court," the property was sold to defendant. The special defenses allege "that, by reason of the convenants of said mortgage, * * * the plaintiff * * * is estopped from asserting any right, title, or interest whatsoever in the property described in the complaint," and again "that, by virtue of said judgment and decree and said sheriff's sale, this plaintiff * * * is estopped from asserting any right, title, or interest in the property as against this answering defendant."
Plaintiff replied at length to the several special defenses set up, but the effect of the reply is merely to admit the allegations made concerning the note and mortgage, deny that plaintiff is in any manner estopped from asserting her title, and that defendant is the owner of the fee, to admit all other allegations made by failure to deny the same, and to seek to avoid their effect by alleging that, at the time the mortgage was given, Emil Grasswick held the land in question under a desert land entry on which he had made but the first annual proof, which fact was known to the mortgagee; that the loan was made to Emil Grasswick alone, and the plaintiff signed the mortgage only as his wife for the purpose of relinquishing her inchoate right of dower in the land described; that it was understood by all of the parties to the transaction that such was the sole purpose of her act, and no consideration was paid to her therefor.
It is alleged in the reply that, after the execution of the mortgage, Grasswick relinquished his filing to the government, and plaintiff thereafter filed upon the land as a desert entry, and secured patent thereunder in 1921, and that at the time of the foreclosure proceedings the land was a part of the public domain.
Issue being joined, the matter was called up for trial before the court sitting without a jury, and thereupon counsel for defendant moved for judgment on the pleadings. A discussion of the pleadings followed, in which counsel for plaintiff admitted that plaintiff executed and delivered the note and mortgage, and counsel for defendant admitted that the mortgagee knew that Grasswick did not have title to the land at the time the mortgage was executed, but held merely under his desert land entry on which he had made but the first annual proof, and that plaintiff secured patent in 1921 and had not since parted with title. The court then, in reviewing the pleadings for the purpose of determining whether only questions of law were presented, stated that plaintiff had admitted the execution of the mortgage, whereupon her counsel denied that such an admission had been made, and asserted that the plaintiff had only admitted the allegation that the note was executed by plaintiff and her husband, "which they secured by a real estate mortgage." Counsel for defendant thereupon announced that they might as well go to trial, and the trial proceeded. Plaintiff rested on the admission that she held the land under patent. At the outset, plaintiff objected to the introduction of any testimony on the part of defendant, on the ground that the facts alleged in the answer do not constitute a defense, which motion was overruled.
Over the objection of plaintiff, the mortgage and the judgment roll in the foreclosure proceeding of Ranney v. Grasswick et al. were admitted in evidence. It was shown that at the time the mortgage was executed Emil Grasswick agreed to secure patent to the land, but thereafter, within a year, relinquished to the government, and plaintiff filed upon the land as a desert entry prior to the foreclosure proceedings, and that the Grasswicks defaulted in their payments prior to those proceedings. It further appears that the mortgage included lands other than those described in the complaint, and to which Grasswick had full title.
On rebuttal, Emil Grasswick testified that plaintiff had no interest in the land in question at the time the mortgage was executed, except such right as a woman has in her husband's property. After the answer was given, an objection was interposed to the question and sustained, but no motion to strike the testimony was made. Plaintiff then sought to show that Emil Grasswick received all of the $3,500 loan, by question and offer of proof, but the testimony was ruled out by the court. Plaintiff then rested.
On the pleadings and the facts disclosed in the testimony, the court made findings against plaintiff and in favor of defendant on all questions involved in the action, and thereupon entered its judgment and decree quieting title to the land in question in the defendant. Plaintiff moved for a new trial, which motion was overruled. Plaintiff has appealed from the judgment, and herein makes four assignments of error, which will be discussed in the order presented in argument.
In support of this specification, it is not contended that any vital fact is omitted from the allegations set out, but it is asserted that many of those allegations are of conclusions of law and not of facts from which the conclusions might be drawn.
Counsel first urge that the allegation that plaintiff and her husband executed the note "which they secured by real estate mortgage" does not allege the fact that plaintiff executed and delivered the mortgage, but merely alleges the conclusion of the pleader, and that the admission of a conclusion of law is of no effect, citing 31 Cyc. 90, par. 2. It is further urged that this alleged defective pleading was not aided by the admission of counsel in open court to the effect that plaintiff did execute and deliver the mortgage, as, under the circumstances recited above, the admission was not made formally for the purpose of dispensing with formal proof. Be that as it may, in addition to the formal admission of the reply, that pleading set up affirmatively that plaintiff "did the acts and things as alleged to have been done by her" for the purpose of waiving her inchoate right of dower. This allegation can only refer to the execution and delivery of the mortgage, and is, in itself, a sufficient admission of its execution and delivery to cure the alleged defect in the answer.
It is next asserted that the allegations of the third defense, that the mortgage was foreclosed, and in the fourth defense, that in the foreclosure proceeding "the court entered judgment by a decree duly given and made," are but conclusions of law. As to this allegation it is said that the essential fact sought to be pleaded is the entry of the judgment, and the remainder of the quotation is but a prepositional phrase, and that therefore the allegation does not state that the judgment was duly given and made.
We consider this argument too technical to be followed under our present liberal statutes of pleading. Section 9169, Revised Codes of 1921, provides that, in pleading a judgment, "it * * * may be stated to have been duly given or made." The pleader was evidently attempting to apply the section to the setting up of a decree under the mistaken presumption that a decree was other than a judgment. Under the above statute the foreclosure decree was sufficiently pleaded.
It is further contended that the allegations that the sheriff made a certificate of sale to Ranney and thereafter executed to him a sheriff's deed "in manner prescribed by law," and thereafter the property was transferred to the defendant, are but conclusions of law, and are insufficient to raise an issue of fact, although admitted.
Defendant was but deraigning his title, already pleaded, for the purpose of preparing a...
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