Lee v. Laughery
| Decision Date | 28 October 1918 |
| Docket Number | 3937. |
| Parties | LEE v. LAUGHERY. |
| Court | Montana Supreme Court |
Appeal from District Court, Carbon County; Geo. W. Pierson, Judge.
Action by Levi T. Lee against Thomas E. Laughery. Judgment for plaintiff, and, from order denying new trial, defendant appeals. Affirmed.
Nichols & Wilson, of Billings, and Walsh, Nolan & Scallon, of Helena for appellant.
Grimstad & Brown, of Billings, for respondent.
In March, 1910, W. A. Longley agreed to convey to Thomas E Laughery 19 lots in Laurel and, in consideration thereof Laughery agreed to convey to Longley the Miller ranch in Carbon county. Longley made his conveyance, but Laughery, being unable at the time to comply with his part of the contract, conveyed to Longley another ranch known as the "Laughery" ranch. The conveyance was by deed absolute in form. At the same time an agreement in writing was entered into between these parties, which recited in effect that the Laughery ranch had been transferred as security for the performance by Laughery of his obligation under the original agreement, and further provided that if Laughery should acquire title in fee simple to the Miller ranch and tender a deed therefor or the cash equivalent, on or before December 19, 1911, then the tender should be accepted and Longley should thereupon deed back the Laughery ranch. This agreement was signed by both parties, was acknowledged by Laughery only, and was filed for record and recorded on February 20, 1912. In the meantime Laughery leased the Laughery ranch from Longley, and Longley on January 29, 1912, sold the same ranch to the Yellowstone Land & Grain Company. On March 9, 1912, the Yellowstone Land & Grain Company conveyed the Laughery ranch, by warranty deed, to plaintiff, Lee. Laughery thereafter asserted title to the land, and this action was instituted.
The complaint contains two so-called causes of action; one to quiet title, the other in ejectment. The answer contains certain admissions and denials not now material, and an affirmative defense in which is recited the transactions between Longley and Laughery, followed by allegations to the effect that the deed and contract constituted a mortgage, that no proceedings for its foreclosure had been instituted, and that the Laughery ranch was at all times of much greater value than the Miller ranch. There was reply to the new matter, and upon a trial to the court without a jury the issues were determined in favor of plaintiff. From an order denying him a new trial, defendant appealed.
The findings made by the lower court refer to the deed and contract, to the conveyance to the Yellowstone Land & Grain Company, and to the deed to plaintiff. There is a finding that plaintiff obtained title without notice of any claim by defendant except such as might have been conveyed by defendant's possession; that defendant had secured a lease of the Laughery ranch from Longley; and that he had not performed or offered to perform the condition imposed upon him by the contract. The court concluded:
(1) That the contract between Longley and Laughery was an agreement on the part of Longley to reconvey on condition to be performed by Laughery within a specified time, and that, by reason of Laughery's failure to perform or offer to perform, he could not assert any claim to or interest in the Laughery ranch.
(2) That defendant had held possession by virtue of a lease.
(3) That the leasehold interest had terminated.
(4) That plaintiff is owner of the Laughery ranch, and his title thereto should be quieted.
The judgment establishes title and right of possession in plaintiff and awards him possession and his costs. It then proceeds to declare that the claim of defendant is invalid, and he is enjoined from further asserting it.
1. The complaint does not state a cause of action to quiet title. It is nowhere alleged that plaintiff is in possession or that the land is unoccupied. If the Laughery ranch was held adversely to plaintiff, then ejectment furnished a plain, speedy, and adequate remedy. Either possession by plaintiff or the fact that the land is unoccupied is an essential ingredient of the action to quiet title (Montana Ore Pur. Co. v. Boston & Montana Co., 27 Mont. 288, 70 P. 1114; O'Hanlon v. Ruby Gulch Min. Co., 48 Mont. 65, 135 P. 913); and it is necessary that the one fact or the other be made to appear by appropriate allegation (32 Cyc. 1352). In the so-called second cause of action, it is alleged that defendant is in possession, and this of itself is sufficient to defeat plaintiff's right to relief in equity.
2. There are in the complaint sufficient allegations to state a cause of action in ejectment, and it is not contended, and could not...
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