Huber v. Glenrock State Bank
| Citation | 234 P. 31,32 Wyo. 357 |
| Decision Date | 03 February 1925 |
| Docket Number | 1173 |
| Parties | HUBER v. GLENROCK STATE BANK ET AL. [*] |
| Court | United States State Supreme Court of Wyoming |
Original Opinion of February 3, 1925, Reported at: 32 Wyo. 357.
Rehearing Denied.
ON PETITION FOR REHEARING
A petition for rehearing has been filed herein, but no points not fully covered by our former opinion have been brought out. We held that Omstead stepped into the shoes of the bank and acquired whatever rights the bank might have had. Nothing said in the brief of counsel on rehearing has caused us to change our opinion on that point, and we think that our discussion of it shows how manifestly unfair it would be to hold the contrary, particularly in view of the fact that the security in this case had been taken in the form of a deed. Hence, Omstead had the right to take possession of the property in controversy exactly in the same manner and under the same conditions as the bank might have done, and it matters not that the bank had not yet taken possession when Omstead acquired its rights. Huber, the plaintiff, took his title, of course, which he did not acquire until January 25 1922, subject to all the rights which the former then had. So the only question remains whether or not lawful possession was acquired by the former in December, 1921.
Counsel take exception to the cases cited by us as to what constitutes lawful possession by a mortgagee, and concedes that if the law as to mortgages were the same as for instance that of New York, Wisconsin, Kansas and Oregon, from which we cited cases, our conclusion herein would be correct. The theory in all these states is that a mortgage is mere security, as in this state, and that the mortgagee has no right of possession except pursuant to foreclosure and sale. 27 Cyc. 762, 1235; Jones, Mortgages, (7th Ed.) Secs. 30, 44 47, 57. In Wisconsin the statute provides that no action shall be maintained by the mortgagee for the recovery of possession of the mortgaged premises until the equity of redemption shall have expired. Yet it has often been decided in that state that if the mortgagee, after default, goes into peaceable possession, he cannot be ejected by the mortgagor while the mortgage remains unsatisfied, and that the only remedy of the mortgagor is by a bill to redeem. Jones, supra, Sec. 57. The rule is claimed by counsel to be different in Texas, Michigan, Iowa and Colorado, citing Jones, supra, Sec. 717. The Texas case cited is that of Morrow v. Morgan, 48 Tex. 304. It does not appear how the mortgagee obtained possession, and the case is, therefore, not in point. Nevertheless it seems to intimate that the mortgagee might lawfully come into possession of the land by consent, and that even under the circumstances of that case, the court might "compel the plaintiff to adjust their (the defendants') equitable claims to the land." None of the Michigan cases cited by Jones seem to be direct in point. None of them, so far as we can find, have passed upon any facts similar to those in the case at bar. In Reading v. Waterman, 46 Mich. 107, 8 N.W. 691, it was held that where a mortgagor recognizes the rights of a mortgagee lawfully in possession he cannot...
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