Low v. Sanger
| Decision Date | 21 December 1970 |
| Docket Number | No. 3838,3838 |
| Citation | 478 P.2d 60 |
| Parties | J. O. LOW, Jr., and Leroy Franz, Jr., Appellants (Defendants below), Ralph C. Allen, Marjorie Dennis Allen (Named as defendants below), v. Millicent SANGER and Kathryn Lynn Sanger, Appellees (Plaintiffs below). |
| Court | Wyoming Supreme Court |
Byron Hirst, of Hirst & Applegate, Cheyenne, S. K. Briggs, Rawlins, for appellants.
Eph U. Johnson and Harold M. Johnson, Rawlins, for appellees.
Before GRAY, C. J., and McINTYRE, PARKER and McEWAN, JJ.
Millicent and Kathryn Lynn Sanger brought a complaint against Ralph C. Allen (Ralph Clayton Allen), Marjorie Dennis Allen, 1 and J. O. Low, Jr., alleging that plaintiffs were the owners and in actual possession of some 17.35 acres in the S 1/2 N,W 1/4 sec. 34, T. 15 N., R. 81 W., of the 6th P.M., Carbon County, Wyoming, described by metes and bounds, and asked that title be quieted in them. Low answered, denying generally and asserting that the claim did not state a cause of action; pleaded the execution of a December 26, 1947, written agreement recorded August 28, 1961, which Ralph C. Allen and Marjorie Dennis Allen had executed and caused to be placed in escrow with a warranty deed to him, covering the land in issue subject to the right of Allen, upon notice to Law, to use the cabin located on the lands for the period of June through October during his lifetime, the consideration being $2,000 in cash, an agreement that Low would make certain improvements on the property, and at the time of Allen's death would pay an additional $2,000 to the bank for the account of Allen, his heirs, administrators, and assigns. Low asserted that the written agreement, a copy of which was attached to the answer, gave him a right to use and occupy the premises except when used by Allen and that he intended to exercise his right to the property at the time of Allen's death.
Allen answered the complaint, averring that he claimed no interest in the real property in issue and that the purported 1947 agreement with Low was void and asking that title to the land be quieted in the Sangers.
During the course of the pleadings, when it developed that Low had transferred his interest to Leroy Franz, Jr., Franz was made a party. He filed an answer denying plaintiffs' complaint; asserted in the nature of a counterclaim his own title to the land as Low's successor; and asked that title be confirmed in him, plaintiffs replying with denial.
Interrogatories were submitted to and answered by Millicent Sanger, Allen, and Low, the latter filing a motion for summary judgment, supported by his affidavit and those of his attorney and Franz. The trial judge then wrote counsel, saying that from reading the file he was unsure of what the parties were contending. Both counsel responded, indicating the principal issue to be the effect as constructive notice of the recording in 1961 of 1947 agreement and citing authorities. The case remained pending for some months during the illness and subsequent death of the presiding judge. When his successor was appointed, counsel for the litigants wrote supplements to their earlier arguments concerning constructive notice. After a consideration of the matter, the judge wrote a letter to the attorneys saying:
'* * * the discovery was so complete that all counsel for the parties agreed to submit the case on the record. * * * counsel * * * have submitted briefs on the question which they have agreed is the crux of the law suit, namely whether the recording of an instrument designated as 'Description of Property', to which was attached a copy of an Agreement dated December 26, 1947, gave constructive notice to the Plaintiff that J. O. Low, Jr. claimed an interest in the property which the Plaintiff (sic) purchased from a common grantor.'
The letter continued with reasons and authority for accepting plaintiffs' views that the recording was ineffective in imputation of constructive notice to plaintiffs. Judgment was entered denying the prayer of Low's motion for summary judgment and quieting title in plaintiffs. Low and Franz then filed motion for new trial, which was denied by the court, and this appeal has resulted.
As basic to our consideration, we list the facts disclosed by the various pleadings, instruments, affidavits and interrogatories contained in the record.
On December 26, 1947, Marjorie Dennis Allen and Ralph Clayton Allen, wife and husband, entered into a witnessed but unacknowledged agreement with J. O. Low, Jr., for the sale to him of the 17.35 acres of land here in issue, simultaneously executing a duly acknowledged warranty deed for the property, placing it and the agreement in escrow with The First National Bank of Laramie. The agreement provided that the deed was to be held in escrow for the natural life of Allen, during which time Low was to have the exclusive use and occupancy of a cabin located on the land, subject to Allen's right to use the same each year during the months of June through October upon 'thirty days' written notice' to Low of his intention so to do, and on the death of Allen the bank was to deliver the deed to Low upon the payment of $2,000. The recited consideration in the agreement was $2,000 in cash, which amount Low said he paid but Allen insisted he did not receive, and $2,000 to be paid to the bank for the account of Allen and his successors at the time of his death. Low said he made various improvements on the property in compliance with his agreement that this would be further consideration for the property; Allen denied Low's making certain of the asserted improvements and explained ones which he himself had made.
The agreement had no description of the property but referred to that contained in the deed, which together with the agreement, was placed with the bank. The deed described the property by metes and bounds and continued:
'The above parcel of land being a portion of the same real estate conveyed by Christina Dennis, widow and unmarried, to Marjorie Dennis Allen by Warranty Deed dated the 6th day of August, A.D. 1932 and recorded in the office of the Register of Deeds of Carbon County, in Book 239 of W.D. Page 419.'
Allen in his interrogatories stated that Marjorie Dennis Allen was his wife on December 26, 1947, identified her signature on the warranty deed and agreement, and said that she was deceased.
Low by affidavit described various improvements that he had made to the land and cabin. Although in answer to interrogatories he indicated occupancy of the cabin during the summers of 1948-1952, no specific reference was made to any date thereafter.
In 1961 Low appended to a copy of the agreement a paper entitled 'Description of Property,' signed and acknowledged by him, and...
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