Huber v. Glenrock State Bank
| Decision Date | 03 February 1925 |
| Docket Number | 1173 |
| Parties | HUBER v. GLENROCK STATE BANK ET AL. [*] |
| Court | Wyoming Supreme Court |
Rehearing Denied 234 P. 31.
Rehearing Denied 32 Wyo. 357 at 375.
APPEAL from District Court, Converse County; CYRUS O. BROWN, Judge.
Action by Paul Huber against the Glenrock State Bank and others. There was a judgment for defendant and plaintiff appeals.
Affirmed.
S. E Phelps for appellant.
The Court erred in excluding the testimony of witness Omstead as to prices obtained for coal, the action being for damages; Sunnyside Etc. Co. v. Reitz, 14 Ind. 478; 43 N.E 46; Woodenware Co. v. U. S. 106 U.S. 132. The Court erred in excluding testimony of appellant as to conversations had with officers of the bank relating to its security; appellant was entitled to recover attorney's fees; the Court erred in excluding evidence of arrests of plaintiff's employees at the mine. The Court erred in excluding important record evidence tending to establish plaintiff's title. The chattel mortgage covering partnership property was not executed by all of the partners; 4684 C. S. the chattel mortgage foreclosure was void, 4707 C. S. The Court erred in receiving the quitclaim deed executed to the bank, the same not being properly executed, 4589 C. S. 8 R. C. L. 18; Ames v. Parrott, Nebr. 86 N.W. 503; Dunavan v. Co. (N. D.) 80 N.W. 772. The instrument carried no after acquired rights, 4618 C. S. Balch v. Arnold, 9 Wyo. 17; having been pleaded as an absolute conveyance it should not be considered as given for security; the chattel mortgage was void. Thomas v. Schmitz, 15 Wyo. 181; Lellman v. Mills, 15 Wyo. 149; Ridgely v. Bank, (Wyo.) 75 F. 805; the chattel mortgage foreclosure was void for insufficient notice, 4705 C. S. the instrument itself was void for want of proper execution; Boswell v. Bank, 16 Wyo. 179. The quit claim deed was not delivered and was of no effect; Bowers v. Cottrell (Id.) 96 P. 936; Showalter v. Spangle (Wash.) 160 P. 1032; Fitzgerald v. Goff, 99 Ind. 28; Vol. I Devlin, R. E. 263-267. The bank cannot be considered a mortgagee in possession; Howell v. Leavitt, 95 N.Y. 617; I. Jones Mtgs. 702; Bowen v. Brogan (Mich.) 77 N.W. 942; McClory v. Ricks (N. D.) 88 N.W. 1042; the bank was a wilful trespasser; Cosgriff v. Miller, 10 Wyo. 19; intentional trespass supports judgment for permanent injury plus highest market value of the product severed between the time of severance and conversion without reduction for labor expense; Sunnyside Co. v. Reitz, supra; Woodenware Co. v. U. S. supra; Benson Co. v. Alta Co., 145 U.S. 428. Defendant Omstead took possession without right, and invoked criminal statutes of the state to oppress plaintiff; he was guilty of malicious trespass. The judgment should be reversed with directions to enter judgment for plaintiff for possession and damages.
C. Leonard Smith for respondent.
Appellant's brief contends for relief different from that prayed in his petition; he seeks to recover possession of personal property and damages in an equitable proceeding; the chattel mortgage was properly executed, 4516 C. S. it was signed by all of the partners, 4684 C. S. the foreclosure sale was in view of the property, 4705 C. S. the conveyances were one transaction, 18 C. J. 216; the quitclaim deed passed all present interest, 18 C. J. 188; Balch v. Arnold, 9 Wyo. 17, 59 P. 434; the quitclaim deed was absolute, 27 Cyc. 1029; it cannot be urged as mere security against a bona fide purchaser without notice, 27 Cyc. 4; an original grantor has no right of redemption; Tufts v. Tupley, 129 Mass. 380; Kemp v. Small, 49 N.W. 169. On the question of innocent trespass the cases cited in 79 A. L. R. page 908 are submitted.
S. E. Phelps in reply.
The bank and not the Platte Valley Coal Co. was in possession in December 1921 as shown by the evidence. Attorney's fees may be allowed in connection with exemplary damages, 17 C. J. 808; grantee in a deed is not a competent attesting witness thereto; Craft v. Thornton, 125 Ala. 391; the chattel mortgage was not renewed, 4697 C. S. The bank received no after acquired title under the quitclaim deed; Mathews v. Nefsey, 13 Wyo. 458; nor could it be a mortgagee under said deed since it contained no covenant of title, enjoyment, or right to convey; it merely conveyed contingent interest and no covenant is to be implied, 4582 C. S. In trespass all who participate in the wrongful act are liable, 26 R. C. L. 38; Donavan v. Co., 187 Ill. 28; the judgment should be reversed with instructions to render a judgment in favor of plaintiff for possession and damages.
This is an action to recover possession of lot 8, situated in the NE 1/4 of the SW 1/4, Sec. 4, T. 33 N, R 75, in Converse County, Wyoming, and certain personal property and equipment used in connection therewith and for damages for coal mined from the land and waste committed thereon. The district court rendered judgment for the defendants, from which the plaintiff appeals.
The court was, by the evidence, warranted in finding the following facts: The land in question is coal mining property and was bought by William Skinner and Richard Barnard, a partnership, doing business under the name of Platte Valley Coal Company, from the Glenrock Coal Company, whose office was apparently located in Denver, Colorado, for, it seems, the sum of $ 1500. The date of this purchase does not appear. $ 500 of the purchase money had apparently been paid, but there remained due to the Glenrock Coal Company on December 8, 1920, the sum of $ 1000. In order to pay the amount so due, and to buy some equipment for the mine, said partnership made arrangements with the Glenrock State Bank, of which the defendant F. O. Carson was cashier, to borrow the sum of $ 1718.93. The Coal Company above mentioned transmitted to said bank a deed for said property made to said partnership. Said deed is dated December 8, 1920, and the letter of transmittal December 8, 1920. The final payment to said coal company was made by said bank on December 14, 1920. In order to secure said loan from said bank said partnership executed to said bank a note for $ 1718.93, due April 7, 1921, and a chattel mortgage covering the personal property and equipment connected with said coal mine. Said chattel mortgage is dated December 7, 1920, and purports to be acknowledged on the same date. It is signed and acknowledged by both of said partners, Richard Barnard and William Skinner, and purports to be executed by them. It was also signed by Mrs. Rose Skinner, wife of William Skinner, but the body of the chattel mortgage does not contain her name, nor did she acknowledge it. A quitclaim deed to said land was also given to said bank about the same time. It, too, purports only to be executed by said Richard Barnard and William Skinner, but Rose Skinner also signed as well as acknowledged it along with the others. It is dated December 7, 1920, and purports to be acknowledged on December 9, 1920. It was taken, as stated by said cashier, to "protect the bank," and is claimed by plaintiff to have been for additional security only, and that it is, accordingly a mortgage. Both of said instruments are witnessed by said cashier. In the fall of 1921 said bank became anxious to have the indebtedness above mentioned paid. Said coal mine was being worked but little and the bank tried to get said partners to turn said property over to a third party for the amount of the indebtedness against it, but this the said partners refused to do. Said bank accordingly proceeded to foreclose said chattel mortgage, selling the property mentioned therein on November 10, 1921, after due advertisement, to the Glenrock State Bank for the sum of $ 723.75. No foreclosure proceedings were had under said quitclaim deed given to said bank. On December 3, 1921, the latter transferred said property to the defendant C. L. Omstead for apparently the sum of $ 2500, the land by quitclaim deed, and the personal property by bill of sale containing a warranty of title. In the meantime said partners had given a mortgage on said land, in the sum of $ 200, to one Fred Budden, which said mortgage said defendant Omstead paid in order to clear his title. About December 5, 1921, the latter took possession of all of said property and commenced to mine coal from the land and continued to do so up to the time of the trial. On January 25, 1922, said Richard Barnard, William Skinner and Rose Skinner executed a warranty deed to all of said real and personal property to the plaintiff, Paul Huber, under an agreement that should the latter obtain a clear title to said property he was to pay to the grantors the sum of $ 2000. On the next day plaintiff, who prior to said purchase knew of the claim of defendants, demanded possession of said property and about 6 o'clock on the following morning, before the men occupied in the mine had arrived, attempted to dispossess the defendant Omstead therefrom, by the aid of several men, who, however, were thereupon arrested and taken from the mine. This action was commenced on March 31, 1922. Other facts will hereafter be stated in connection with the discussion of the several questions raised herein.
1. We might say in passing that it has not been explained to us upon what theory Carson and the Glenrock State Bank were made parties herein. These defendants were not in possession of the premises in question, did not claim to have any rights therein at that time, did none of the mining on the land and committed no waste, if any was committed. It is not claimed that Omstead was their agent and it is difficult to see upon what theory they could be held jointly liable with the defendant Omstead. We do not pass upon the...
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