Johnson v. Sellers

• Decision Date: 05 December 1938
• Docket Number: 2069
• Citation: 53 Wyo. 403,84 P.2d 744
• Parties: JOHNSON ET AL v. SELLERS
• Court: Wyoming Supreme Court

84 P.2d 744

53 Wyo. 403

JOHNSON ET AL v. SELLERS

No. 2069

Supreme Court of Wyoming

December 5, 1938

ERROR to the District Court, Sweetwater County; H. R. CHRISTMAS Judge.

Action by E. C. Sellers against W. A. Johnson and another to recover possession of certain realty and to remove a cloud on title of such realty, and for the cancellation of two alleged void conveyances. To review an adverse judgment, defendants bring error.

Affirmed.

For the plaintiffs in error, the cause was submitted on the briefs of T. S. Taliaferro, Jr. and A. L. Taliaferro of Rock Springs.

The record shows that defendant in error had no cause of action. The trial court erred in overruling the demurrer of plaintiffs in error. Plaintiff below contended that the action was in ejectment and not one to quiet title, yet the trial court rendered a decree quieting title. Plaintiffs in error were required to answer in ejectment. 9 C. J. 1190; Delfelder v. Teton Company (Wyo.) 28 P.2d 157. In the above case, this court said that if the object be to establish the title, the claimant of the adverse title must be made the defendant, while in respect of the claim to possession, the occupant must be made a defendant. The cases of Chesney v. Valley Company, 34 Wyo. 378 and Service v. West, 153 P. 446 are not pertinent to the case at bar, nor is the citation from 9 C. J. 1190, referred to by the trial judge, an authority in this case. Counsel for defendant in error have repeatedly stated that the case is one in ejectment and not one to quiet title. The demurrer filed to the petition should have been sustained, as a cause of action in ejectment cannot be joined with one to clear title. Weatherwax v. Ray (Wash.) 80 P. 775. Section 89-3901 authorizes an action by one in possession against anyone claiming an adverse claim or interest in land. Counsel for defendant in error disclaimed that this action was brought under said section and stated that plaintiff was out of possession when the action was instituted and could not have instituted an action to quiet title. They also stated that their action was brought under Section 89-3903, R. S. The statute was borrowed from Ohio. The Legislature of that state amended the statute in 1893. The amendment is discussed in McBride v. Murphy (Ohio) 145 N.E. 855. Prior to 1910, the Oklahoma statute was identical with the Wyoming statute. The Oklahoma Legislature amended the section in 1910. Tidal Oil Co. v. Flanagan (Okla.) 209 P. 730. The third cause of action in the petition clearly indicates that it seeks a decree clearing title. Section 89-601, R. S does not state that utterly inconsistent causes of action may be united. Wyoming Co. v. Buffalo, 25 Wyo. 158. A petition showing on its face causes of action improperly joined is subject to demurrer. An exhaustive discussion of the principle appears in Allen v. Houn, 30 Wyo. 186. The question in this case was whether Sellers or Borcoman was entitled to possession. There is no evidence in the record that entitles defendant Sellers to possession. The case of Chesney v. Valley Company, supra, involved a lien. The case of Keens v. Gaslin (Nebr.) 38 N.W. 797 was to remove a cloud and not one in ejectment. See also Pfister v Dascey (Cal.) 4 P. 393. In a bill for quieting possession, actual possession must be pleaded and proven. Clark v. Hubbard, 8 Ohio 382. Sellers never had any right to possession of the lands in question. Neither of the plaintiffs in error were parties to the foreclosure suit mentioned by counsel for defendant in error. The position of plaintiffs in error is, that considering all of the facts as the trial court found them, its judgment cannot stand in the face of the law. There is manifest error in the judgment sustaining the misjoinder of causes of action, one "in ejectment" and the other in "removing cloud" from title. The fact that Borcoman and Johnson waived their objection to the pleading is chimerical. Defendant in error E. C. Sellers, had no shadow of right to possession of the lands in litigation, so long as the paramount title of the Wyoming Oil Products Company was outstanding and unassailed. The evidence shows that plaintiffs in error alone, as agents of the Wyoming Oil Products Company, and in their own individual rights, were possessed of the land at the time of the commencement of this suit. It was for the trial court to determine for plaintiffs in error, which of several rights of possession they should rely upon. 19 C. J. 1145. The statute provides that defendant may set forth in his answer as many grounds of defense, counter-claim and set-off, as he has. Sec. 89-1015, R. S. 1931. Neither the Wheelwright Construction Company as a junior lienholder, or defendant in error, E. C. Sellers, can claim the right of possession to land in question during the life of the lease from J. E. Himes to Wyoming Oil Products Company. Neither Wyoming Oil Products Company, nor those holding under them, can be ousted from possession by defendant in error, E. C. Sellers, so long as the said lease to the Wyoming Oil Products Company is in being. C. J. Vol. 41, p. 1001; 19 R. C. L. 529; Rogers v. Humphreys, 31 R. C. L. 72; Bank of Montreal v. Ketchum, 1 Ch. Cham. Ont. 117; Hemphill v. Tevis, 4 Watts & S. (Pa.) 535; Heaton v. Grand Lodge (Ind.) 103 N.E. 488; Enos v. Cook (Cal.) 3 P. 632; Building v. Walsen (Minn.) 53 N.W. 869; Brunette v. Myette (R. I.) 102 A. 521; 51 C. J. 203; Richmond v. Land Company, 238 F. 827. The foreclosure of a mortgage, where there is a prior lien upon the premises is the foreclosure of the reversion only. Chason v. O'Neal (Ga.) 124 S.E. 522. Plaintiffs in error, Borcoman and Johnson, being in possession of the lands here in litigation, when this suit was filed, as found by the trial court, cannot be ousted out of the possession of the said premises in a suit to clear title by defendant in error, Sellers. And as against the defendant in error, E. C. Sellers, plaintiffs in error have every defense which the Wyoming Oil Products Company, or its trustees, might interpose. 51 C. J. 198; 19 C. J. 1064; Robinson v. Campbell, 4 L.Ed. 376; Whitham v. Ellisworth (Ill.) 102 N.E. 224; Robertson v. Howard (Kan.) 112 P. 162. If Sellers had no right of title whatsoever, he could not eject Borcoman. Bay County v. Bradley (Mich.) 33 Amer. Rep. 367; Reams v. Sinclair (Nebr.) 150 N.W. 826; Bridenbaugh v. Bryant (Nebr.) 112 N.W. 573; Coles v. Meskimen (Ore.) 85 P. 67; State v. Cincinnati Company (Ohio) 64 N.E. 71; 19 C. J. 1035; Leonard v. Coleman (Ark.) 15 S.W. 14; 19 C. J. 1038, 1039, 1040. The condition of the lease made by Himes was that the land should not be commercialized for purposes outside of mining and should not be closed by the lessee, so that Himes and his representatives should not have ingress, egress and regress. The right of ingress, egress and regress gives no right of action in ejectment. 19 C. J. 1042; Jacobson v. Hayday (N. J.) 83 A. 903; Buckner v. Hutchings (Wis.) 53 N.W. 507; 19 C. J. 1042; Cincinnati v. White, 8 L.Ed. 457; 19 C. J. 1064; 19 C. J. 1074, 1075; Hockett v. Alston, 110 F. 910; Mayhan v. Smith (Ala.) 44 So. 375. The deed from the Wheelwright Construction Company was obtained by Sellers in the most flagrant instance of champerty. Sellers knew that Borcoman was in possession when he negotiated for the quit claim deed. He knew when he commenced his fraudulent scheme that the Wheelwright Construction Company pretended no title to the land in question; that no deed had been issued to it at the pretended mortgage foreclosure. Sellers, with champerty and maintenance, purchased a quit claim release in order to stir up litigation. While we do not claim that said quit claim deed and sheriff's deed were made void by his champertous conduct, we do claim that such conduct renders the whole transaction void, and that courts will leave him where they found him, and will not aid him to carry into effect his champerty and maintenance. 51 C. J. 175; 19 C. J. 1076; McBride v. Steinweder (Kan.) 83 P. 822; Thomas v. Rauer (Kans.) 64 P. 80; Dyke v. Whythe (Colo.) 29 P. 130; Morris v. Grauberger (Colo.) 147 P. 674. A defendant in ejectment may not defeat the legal title of a plaintiff legally in possession by urging a mere defect in such title. People v. Laprarie, 154 N.Y.S. 795. The distinction between the right of defense of a bare, naked trespasser, and that of a trespasser under color of title, is discussed in the following authorities: 9 R. C. L. 850; 19 C. J. 1076; Lee v. Cook, 2 Wyo. 312; Sec. 89-2974, 1931 R. S., 2 C. J. 168; Newlin v. Rogers, 51 P. 315; 2 Words and Phrases, 1264.

For the defendant in error, the cause was submitted on the brief of Glen G. Stanton and W. A. Muir of Rock Springs.

Defendant in error, Sellers, sought recovery of possession of a small tract of land consisting of 7.2 acres, and in his amended petition alleged that he has been and is now the owner of has a legal estate in, and is entitled to the possession of the property. In his second cause of action, he sought recovery of $ 650.00, as rents, issues and profits from plaintiffs in error. In his third cause of action, he sought the cancellation of a sheriff's deed dated August 12, 1933, and filed for record on December 28, 1935, and a warranty deed dated December 28, 1935. The Sheriff's deed was issued to plaintiff in error, Borcoman, and the warranty deed was given by Borcoman to plaintiff in error, W. A. Johnson. The evidence proves conclusively that the sheriff's deed was issued without authority and is void; that the warranty deed given by Borcoman to W. A. Johnson is void and conveyed no right, title or interest whatsoever. Plaintiffs in error endeavored to defend the action by alleging that J. E. Himes conveyed the lands to Wyoming Oil Products Company by a fifty year lease dated July...