Johannes v. Dwire

• Decision Date: 30 June 1933
• Docket Number: 7108.
• Parties: JOHANNES v. DWIRE et al.
• Court: Montana Supreme Court

23 P.2d 971

94 Mont. 590

JOHANNES v. DWIRE et al.

No. 7108.

Supreme Court of Montana

June 30, 1933

Appeal from District Court, Toole County; R. M. Hattersley, Judge.

Suit by R. J. Johannes against Mark Dwire and another, who filed a disclaimer of any interest, and Glen M. Cox. From a decree in favor of plaintiff, the last named defendant appeals.

Affirmed.

Harris & Hoyt, of Shelby, for appellant.

Louis P. Donovan, of Shelby, and E. G. Toomey, of Helena, for respondent.

MATTHEWS Justice.

The defendant, Glen M. Cox, has appealed from a decree quieting title in the plaintiff, R. J. Johannes, to certain oil royalty.

In 1927, J. T. Jarrett, owner, placed in escrow an assignment to Mark Dwire, of Shelby, of 2 1/2 per cent. landowner's royalty from oil wells to be drilled on the Jarrett ranch in the Kevin field, in Toole county, with the understanding that, if Dwire should sell 2 per cent. royalty within thirty days, the remaining one-half per cent. would go to him as his commission. Dwire executed assignments of one-half of 1 per cent. royalty, in blank, and placed them in the hands of Dr A. Howe, of Helena, for sale. Howe negotiated a sale to Johannes, who, without investigation as to title, gave his check for $1,200 to Howe and received one of Dwire's assignments. Howe remitted to Dwire, who, being unable to dispose of the other 2 per cent. within the time limit, wired Jarrett, who lived in Oregon, for an assignment of the royalty sold. Jarrett complied; Dwire remitted the full amount received by him. Thus it transpired Dwire's assignment to plaintiff is of date April 30th and recorded May 4th, while the Jarrett assignment to Dwire is of date May 3d, and recorded May 6th.

Cox secured a judgment against Dwire in the district court of Cascade county in 1926, and in 1932 secured an execution thereon, directed to the sheriff of Toole county, under which the royalty involved was levied upon, and Cox became the purchaser on execution sale. Thereupon plaintiff commenced suit against Dwire and Cox to quiet his title. Dwire and wife filed a disclaimer of any interest; Cox answered, denying plaintiff's title and alleging title in himself.

On the trial the plaintiff merely submitted the documents constituting his chain of title and rested; the answering defendant's entire proof consists of the judgment roll of the Cascade county case and an instrument entitled "Transcript of Judgment," to which is affixed the certificate of the clerk of the district court of Cascade county of date August 7, 1926, and which bears the legend "Filed Aug. 8, 1926." In rebuttal, the plaintiff and Dwire explained the manner in which plaintiff acquired the royalty, as above outlined.

On the evidence thus adduced, the court declared that Howe acted as agent for Dwire, and that they both acted as brokers or agents for the vendor and for the vendee; that Dwire never acquired title to the royalty, but merely served as a conduit through which title passed from Jarrett to the plaintiff, and that, consequently, the lien of defendant's judgment never attached to the royalty. The defendant challenges the sufficiency of the evidence to warrant the court's findings and its application of the law.

This court has recently held that an oil and gas lease takes the character of an estate in the land itself. "It is an interest in land" [Williard v. Federal Surety Co., 91 Mont. 465, 8 P.2d 633, 635]; for the purposes of this appeal we will assume that the property here involved is of the same character.

If the judgment was filed in Toole county in August, 1926, as contended, its lien would attach to any real estate which Dwire thereafter acquired during the life of the lien (...