Jacobson v. Wickam

Decision Date21 June 1927
Docket Number1306
Citation36 Wyo. 522,257 P. 7
PartiesJACOBSON v. WICKAM, et al [*]
CourtWyoming Supreme Court

APPEAL from District Court, Platte County; WILLIAM A. RINER, Judge.

Action by Jesse E. Jacobson, as trustee in bankruptcy of the estate of Frank Wickam, against Lorena Wickam and such bankrupt. Judgment for plaintiff, and defendants appeal.

Reversed and Remanded.

M. A Kline, for appellants.

The court erred in denying motions to require plaintiff to separately state and number his causes of action; 5650 C. S. A trustee in bankruptcy has no better title than the bankrupt; Collier on Bankruptcy, (12th Ed.) Page 1119; Davis v. Compton, 158 F. 735; Ry. Co. v Hurley, 153 F. 503; Company v. Hand, 206 U.S 415. Jacobson, as trustee of Wickam, could not sue Wickam, since that would make the same person plaintiff and defendant; Pearson v. Nesbit, (N. C.) 17 Am. Dec. 569; Byrne v. Byrne, (Cal.) 29 P. 1115. Wickam could not sue to vacate his transfer of property to his wife; 30 Cyc. 1298; Kline v. Kline, (Ariz.) 128 P. 805; Conway v. Rock, (Ia.) 117 N.W. 273; Keller v. Cox, (Ind.) 118 N.E. 543; Chambers v. Chambers, (Mo.) 127 S.W. 86; Carnegie v. Diven, (Ore.) 49 P. 891. The petition is insufficient; McKey v. Smith, (Ill.) 99 N.E. 695; Leavengood v. McGee, (Ore.) 91 P. 453; Crary v. Kurtz, (Ia.) 105 N.W. 590; Mueller v. Bruss, (Wis.) 88 N.W. 229. A complaint for accounting must allege a prior demand for accounting; Bank v. School Dist., (Wash.) 55 P. 317; Wetzstein v. Co., (Mont.) 72 P. 865. The decree is contrary to law; 1 C. J. 646. The Supreme Court should review the evidence and determine the question independent of the trial court's findings; Bolles v. Co., (N. M.) 167 P. 280; Rittmaster v. Brisbane, (Colo.) 35 P. 736; Roby v. Roby, (Ida.) 77 P. 214; Baker v. Rockabrand, (Ill.) 8 N.E. 456; Gibson v. Hammang, (Neb.) 88 N.W. 500. Cases of this class are exceptions to the general rule that the appellate court will not disturb findings based on evidence; the court below was without jurisdiction to render a decree against Wickam; 1 Collier, (12th Ed.) Page 28. The bankruptcy court had exclusive jurisdiction to determine controversies as between the bankrupt and his trustee.

Clyde M. Watts, Kinkead, Ellery & Henderson, and J. E. Jacobson, for respondent.

The decree directing Lorena Wickam to convey to plaintiff, was not appealed from, and appellant cannot now rely on any alleged error in the proceedings upon which that decree is based; Forgay v. Conrad, 12 L.Ed. 404; Marquam v. Ross, (Ore.) 78 P. 698; Stahl v. Stahl, (Ill.) 77 N.E. 67; Produce Bank v. Morton, 67 N.Y. 109; Rastetter v. Hoenninger, 142 N.Y.S. 962; Hardesty v. Naharkey, (Okla.) 213 P. 89; Arnold v. Sinclair, (Mont.) 29 P. 340; Wilson v. Wilson, (Mont.) 210 P. 896; Klein v. Ass'n., (Ill.) 83 N.E. 434; Rawley v. Burris, (Tenn.) 47 S.W. 176; Land Co. v. Cook, (Ala.) 27 So. 559; Burgin v. Sugg, (Ala.) 97 So. 216; Wheelwright v. Roman, (Utah.) 165 P. 513; Deifenderfer v. State, 13 Wyo. 387; Idem, 14 Wyo. 302; Todd's Executor v. Bank, (Ky.) 190 S.W. 468; Commeaux v. West, (Kan.) 97 P. 381. The voluntary performance of a judgment waives an appeal therefrom; Evans v. Noble, (Ia.) 107 N.W. 1105; Chicago Horse Shoe Co., v. Lewis, (Ind.) 59 N.E. 466; Johnson v. Gibson, (Okla.) 220 P. 47. The findings and decree on accounting are supported by the evidence; Taylor v. Calvert, 37 N.E. 531; Tricker v. Mfg. & Imp. Co., (Ga.) 52 S.E. 65; Berry v. Evendon, (S. D.) 103 N.W. 743; Bradbury v. Birchmore, 117 Mass. 569; Weltmer v. Thurmond, 17 Wyo. 268. The burden of proof was upon Lorena Wickam; Stockwell v. Stockwell's Estate, (Vt.) 105 A. 30; Marvin v. Brooks, 94 N.Y. 71; Realty Co. v. South, (Ark.) 131 S.W. 340; Mintz v. Brock, (Pa.) 44 A. 417. Plaintiff cannot adopt a different theory from that followed at the trial; 36 C. J. 718; Wallace v. Ins. Co., (Ore.) 225 P. 192; Adams v. Co., (Okla.) 225 P. 927; Ins. Co. v. Nason, (Calif.) 131 P. 755. The trial court decides questions of fact, and the appellate court questions of law; the rule should be preserved; Reay v. Butler, (Calif.) 30 P. 208; In re Walden's Estate, (Calif.) 137 P. 35; Freeburgs v. Honemann, (Minn.) 147 N.W. 827; State v. Company, (Mo.) 151 S.W. 101; Bell v. Bell, (Ala.) 62 So. 833; Brown v. Lazarus, (Tex.) 25 S.W. 71; Oil Co. v. Sullivan, (Wyo.) 237 P. 253. The decree is joint and several as to accounting; 5876 C. S.; Richardson v. Painter, (Kan.) 102 P. 1099; 4 C. J. 1184; Lumber Co. v. Sessler, (Tenn.) Ann. Cas. 1915C, 103; State v. Blakemore, (Mo.) 205 S.W. 626; Bank v. Strahan, (Okla.) 158 P. 378. The decree may be reversed as to one, and affirmed as to the other; Iron Works Co. v. Haggott, (Colo.) 210 P. 696. The bankruptcy court was without jurisdiction, and the case was improperly tried in the state court; U. S. Comp. Statutes 1916, Sec. 9607; Bardes v. Bank, 44 L.Ed. 1175.

M. A. Kline, in reply.

Decrees directing accountings are deemed interlocutory; 1 C. J. 647; Pulliam v. Christian, 6 How. 209, 12 L.Ed. 408. An order of reference is not final; McGourkey v. Ry. Co., 146 U.S. 546, 36 L.Ed. 1083; 39 Cyc. 324.

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

OPINION

KIMBALL, Justice.

The plaintiff, as trustee in bankruptcy in the matter of Frank M. Wickam, a voluntary bankrupt, brought this action, naming as defendants the bankrupt and his wife, Lorena Wickam. The object of the action was to recover 440 acres of land to which the wife had legal title by deeds from her husband. As we presently shall see, the plaintiff's right to recover the land has been settled, and the questions on this appeal are in regard to a judgment whereby the wife was held accountable to the plaintiff for the reasonable value of the use of the land during the time she had the legal title.

Frank M. Wickam filed his petition in bankruptcy in June, 1922, and thereafter he was adjudged a bankrupt, and the plaintiff appointed trustee.

This action was commenced in October, 1922. After a demurrer to the petition had been sustained, the plaintiff filed an amended petition in which it was alleged that Frank M. Wickam in February, 1916, was the owner of 400 acres of land which he then, without any consideration, conveyed to his wife, for the sole purpose of divesting himself of the legal title in order that he, in filing an application for a homestead under the public land laws, might represent to the United States Land Office that he was not the owner of more than 160 acres of land; that it was intended that the wife should hold the legal title in trust and for the use and benefit of her husband, and, whenever so requested, reconvey to him; that since said conveyance the legal title stood in the name of the wife, but that the equitable title at all times was in the husband who failed and neglected to list it in the schedules to his petition in bankruptcy.

The same allegations were made with reference to 40 acres of land which the husband conveyed to the wife in March, 1921.

The plaintiff did not allege that the conveyances to the wife were made for the purpose of hindering, delaying or defrauding the husband's creditors. The amended petition contained no allegations to show that the wife had anything belonging to the husband except the 440 acres of land, and as to this it was merely alleged that she had the legal title which she held for the benefit of her husband. The only fraud charged was in connection with the intention to make a homestead entry under the public land laws. It is at least doubtful whether the wife was charged with being a party to that fraud. However that may be, it was not alleged that the husband ever made the contemplated entry, and we assume that the intention to defraud the government was not carried out. In the circumstances, that intention, if proved, was important only as bearing upon the plaintiff's claim that the husband and not the wife was in equity the owner of the land in question.

The amended petition itself contains no allegations showing that the wife should account for the value of the use of the land. It was not alleged that the wife was ever in possession. If she were in possession, there was no allegation to show that she received any rents or profits. If she did receive rents and profits, there was no allegation to show that they were withheld in fraud of creditors. So far as appears from the amended petition, the only thing the wife had agreed to do was to reconvey the land to her husband on demand. There was no allegation of a demand by the husband, and nothing to show a demand by the trustee except the bringing of this action.

The only intimation of a claim for anything more than the husband's interest in the land, was in the prayer of the amended petition, where, after asking a conveyance of the land, it was prayed "that an accounting be had of the livestock and moneys and property obtained through the operation of said real estate since said alleged transfers and that same be ordered turned over to this plaintiff."

The defendants moved for an order requiring the plaintiff to separate and number his causes of action, and on the denial of that motion, demurred. The demurrer was overruled, and the defendants then filed separate answers, denying that the husband had any interest in the property in question. There were no issues framed by the pleadings as to the right to an accounting for rents and profits.

On January 29, 1924, a judgment was rendered in favor of the plaintiff after a trial before the court. The court found generally for the plaintiff, but some facts were found specially. It was found that the husband, being the owner of the real estate in question, conveyed it to the wife at the times alleged in the petition; that the conveyances were without any consideration, and...

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6 cases
  • McNab v. State
    • United States
    • Wyoming Supreme Court
    • 14 Enero 1931
    ...13 Wyo. 513; Blonde v. Merriam, et al., 21 Wyo. 513; Mitter v. Black Diamond Coal Co., 27 Wyo. 72; State v. Morgan, 34 Wyo. 153; Jacobson v. Wickam, 36 Wyo. 522. Chief Justice. BLUME and RINER, JJ., concur. OPINION KIMBALL, Chief Justice. The defendant (plaintiff in error) on November 12, 1......
  • Bales v. Brome
    • United States
    • Wyoming Supreme Court
    • 16 Agosto 1940
    ...record. The controlling statute is Chapter 89, Section 2201, R. S. 1931. We cite the following authorities without comment: Jacobson v. Wickam, 36 Wyo. 522, 257 P. 7; v. Corscadden (Mont.) 144 P. 157; Allen v. Boberg (Wisc.) 84 N.W. 421; Gottstein v. St. Jean (Minn.) 82 N.W. 311; Fauber v. ......
  • Weller v. Weller
    • United States
    • Wyoming Supreme Court
    • 9 Junio 1998
    ...480, 38 P.2d 607; that absence of evidence does not warrant presumption that judgment is not sustained by the evidence, Jacobson v. Wickam, 36 Wyo. 522, 257 P. 7; where evidence not brought to reviewing court, facts found must be taken as true, Arp v. Jacobs, 3 Wyo. 489, 27 P. 800; and wher......
  • Rayburne v. Queen
    • United States
    • Wyoming Supreme Court
    • 17 Junio 1958
    ...480, 38 P.2d 607; that absence of evidence does not warrant presumption that judgment is not sustained by the evidence, Jacobson v. Wickam, 36 Wyo. 522, 257 P. 7; where evidence not brought to reviewing court, facts found must be taken as true, Arp v. Jacobs, 3 Wyo. 489, 27 P. 800; and wher......
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