Healy v. Wostenberg, 1824

• Decision Date: 11 December 1934
• Docket Number: 1824
• Citation: 38 P.2d 325,47 Wyo. 375
• Parties: HEALY v. WOSTENBERG, ET AL
• Court: Wyoming Supreme Court

38 P.2d 325

47 Wyo. 375

HEALY v. WOSTENBERG, ET AL

No. 1824

Supreme Court of Wyoming

December 11, 1934

APPEAL from the District Court of Washakie County; C. D. MURANE Judge.

Action by Alex Healy against Effie Isadora Wostenberg, individually and as administratrix of the estate of Henry August Wostenberg, deceased, and another. From a judgment directing the issuance of a writ of restitution of the possession of certain real property to the defendant named, the plaintiff appeals.

Reversed.

For the plaintiff and appellant there was a brief by C. H. Harkins and D. J. Harkins, of Worland, and oral argument by C. H Harkins.

Plaintiff was entitled to possession under his mortgage upon default of mortgagor; the mortgage was foreclosed by advertisement; the judgment in ejectment authorizes the issuance of a writ of possession, but no writ was issued. Respondent abandoned the premises in April, 1923. Plaintiff obtained possession without process of law and did not oust plaintiff. Therefore the court erred in awarding restitution to administratrix for something plaintiff had not taken away. Morton and Riddle v. Sander's Heirs, Marshall Reports, Kentucky, Vols I-II, page 191; Frank's Heirs v. Hickman's Heirs, Marshall Reports, Kentucky, Vol. III, page 635; Breading v. Blocher, (Pa. ) 5 Casey 347; Gould v. McFall, 4 A. S. R. 606. Restitution is granted only where plaintiff has been put in possession by execution or writ of possession, but not where defendant voluntarily quits, as in the present case. Plaintiff is a mortgagee in peaceful possession and entitled to retain possession. Cook v. Cooper, (Ore.) 7 L. R. A. 273; Jagger v. Plunkett, (Kan.) 106 P. 280; Investment Co. v. Adams, (Wash.) 79 P. 625; Cameron v. Ah Quong, (Cal.) 165 P. 961; Walters v. Chance, (Kan.) 85 P. 779; Kaylor v. Kelsey, (Neb.) 40 L. R. A. (N. S.) 839. Pomeroy's Equity Jurisprudence, Vol. 3, 4th Ed., Sec. 1189. Respondent is guilty of laches; rights of innocent parties have accrued. Coster v. Peters, (N. Y.) Abbotts' Pr. Rep., Vol. IV, page 53; Colburn v. Yantis, 176 Mo. 670. The court below did not consider the question of the rights of a mortgagee in possession, or the rights of innocent purchasers in possession. The homestead question does not arise, hence Effie Isadora Wostenberg was not a party to the restitution proceedings. As between the administratrix and plaintiff the proceedings show absolute ownership in fee simple and right to possession in plaintiff.

For the defendant and respondents there was a brief by Charles L. Brome, of Basin; E. E. Enterline and Madge Enterline, of Casper, and oral argument by E. E. Enterline.

The judgment was entered in the action on March 7, 1923, and defendants filed a motion for a new trial within ten days thereafter. Argument was had upon the motion in the month of June, 1923; a brief was filed by counsel for defendants in support of the motion; no brief was filed by counsel for plaintiff. There were no laches on the part of defendant. A right to a judgment on special findings is barred by an order for a new trial. 46 C. J. 436. Plaintiff was not a mortgagee in possession. He brought an action in ejectment against defendant in possession, relying upon a foreclosure deed. The authorities cited by appellant do not sustain his position as to a mortgagee in peaceful possession. In order to get possession, he brought an action in ejectment. He took no appeal from the order granting a new trial. Laches cannot be imputed to a party justifiably ignorant of the facts creating his cause of action. 1 C. J. 244; Harney, Admr. v. Montgomery, 29 Wyo. 362. The order awarding restitution of the premises is sustained by the authorities. Goodright v. Shine, 1 N.C. 11; Beaver v. Filley, 4 N.C. 329; Carleton v. City of New York, 50 N.Y.S.C. 177; Skinner v. Skinner, 30 N.Y.S. 987; Hyde v. Boyle, (Cal.) 38 P. 643; Heydenfeldt v. Superior Court, (Cal.) 49 P. 210. Where one acquires possession of land under a decree which is afterwards reversed, restitution is properly awarded. Lehman-Durr Company v. Folmar, (Ala.) 45 So. 289; Horton v. State, (Neb.) 88 N.W. 146; Dicke v. Turner, 49 F.2d 998; Haebler v. Myers, (N. Y.) 30 N.E. 963; Bank v. Bank, 8 L.Ed. 299; Northwestern Fuel Company v. Brock, 139 U.S. 216; Arkadelphia Milling Co. v. St. Louis Ry. Co., 249 U.S. 134. Opinions of trial courts will not be considered by the appellate court.

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

OPINION

RINER, Justice.

In this case, a judgment of the District Court of Washakie County directing the issuance of a writ of restitution of the possession of certain real property located in said county is brought here by direct appeal. The judgment was entered on the application of Effie Isadora Wostenberg, as administratrix of the estate of Henry August Wostenberg, deceased, subsequently generally referred to herein as the "petitioner" or as the "administratrix," and ran against the appellant Alex Healy and "any and all persons holding and in possession under him." Healy may conveniently be mentioned at times in the course of this opinion as the "plaintiff." The facts shown by the record before us appear to be these:

On December 21, 1920, Henry Wostenberg and Isadora Wostenberg, husband and wife, executed and delivered to one B. T. Joslin their promissory note for $ 3,780, payable in seven installments of $ 540 each, the last payment being due December 25, 1927. The makers of the note agreed therein that, in case the payment of any installment was defaulted when due, all the unpaid balance should at the holder's election become at once due and payable without notice. This note was secured by a mortgage of even date therewith, given by the Wostenbergs to Joslin, upon some 394.38 acres of land in Washakie County, Wyoming, said mortgage containing a clause relinquishing all rights under and by virtue of the homestead exemption laws of this state, the acknowledgment thereof by the mortgagors also stating that each of them "expressly waived and released" all their rights under said exemption laws. This note and mortgage were, on December 21, 1921, assigned to Alex Healy by Joslin. The mortgagors failing to meet one of the payments required by the note aforesaid, Healy instituted foreclosure proceedings by advertisement under the power of sale clause contained in the mortgage, with the result that, on September 25, 1922, he received a sheriff's deed to the property above mentioned. It appears there was a prior mortgage on the land for $ 18,000, and the deed was made subject to it.

Meanwhile and on November 29, 1921, the husband Henry August Wostenberg died, and on December 31 of that year, by court commissioner's order subsequently confirmed by the District Court of Washakie County, his widow Effie Isadora Wostenberg was appointed administratrix of his estate; she duly qualified as such, and letters of administration were issued to her March 2, 1922. An inventory was filed in said estate in which the appraisers set forth that they valued a portion of the property aforesaid, to-wit, 160 acres more or less, describing it by section, subdivision, township, and range, together with its improvements, at the sum of $ 12,000, and stated additionally that:

"We are informed that Effie Isadore Wostenberg claims homestead exemption rights in this real estate, and we find that the value thereof exceeds $ 2500.00, and that same cannot be divided without material injury in value to the separate parcels thereof."

The administratrix having declined to surrender possession of the premises covered by the mortgage and subsequent deed aforesaid, in consequence Healy, on December 16, 1922, brought action in the District Court of Washakie County to obtain it. His petition was in the usual form prescribed in actions to recover realty, and named "Effie Isadora Wostenberg, individually, and Effie Isador Wostenberg, Administratrix of the Estate of Henry August Wostenberg, Deceased, and Henry Wostenberg," as defendants therein. Henry Wostenberg, as appears by his answer in the case, seems to have leased the premises thus in litigation from the administratrix on March 8, 1922, for a period of one year, and, hence, was made a party to the action.

The administratrix, in her answer, after denying all of the allegations of the petition, except as "specifically admitted," admitted its averment as to her official character relative to said estate, and then set forth as affirmative matter, in substance, that her husband owned the lands in question prior to his death, and she and he with their minor children lived upon the land described in plaintiff's petition for many years, as their home; that her husband died November 29, 1921; that she is in possession of said lands as administratrix; that since her husband's death, she and the children have been living upon said land; and that the defendant, the widow of Henry August Wostenberg, "has and claims homestead and homestead exemption rights therein for the benefit of herself and her minor children." The answer concluded by referring to the plaintiff's title, as claimed under mortgage foreclosure and sheriff's deed thereunder, and affirmatively charged:

"That if such foreclosure, sale and deed were in fact made, the same were and are entirely fraudulent, oppressive, unfair, illegal, void, voidable and of no effect and should be set aside and held for naught."

The answer of Effie Isadora Wostenberg, individually, was in substance similar in character. The new matter alleged in the several answers was put in issue by the plaintiff's replies.

The case was tried before a jury, and its verdict, directed by the court, was returned on March 29, 1923, awarding possession of the property described in plaintiff's petition, to...