Matthews v. Nefsy

Citation13 Wyo. 458,81 P. 305
PartiesMATTHEWS v. NEFSY
Decision Date05 July 1905
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Crook County, HON. JOSEPH L. STOTTS Judge.

Action to recover possession of certain real estate situated in Crook County. Plaintiff claimed under a sheriff's deed upon foreclosure of a mortgage. Defendant claimed under a tax deed. The material facts are stated in the opinion.

Reversed and remanded.

Nichols & Adams and Van Cise & Grant, for plaintiff in error.

The reservation of a ruling upon the admission of evidence is not approved by the courts. (Sharp v. Lumley, 34 Cal 611; Mayo v. Mazeaux, 38 Cal. 442; Thurber v Miller, 14 S. Dak., 352.) Where both parties claim title in ejectment from the same source, each party is estopped from denying that the title resided in such source. Hecht v. Boughton, 2 Wyo. 385.) The statute of limitations is a personal plea available only to the contracting party, who may waive or assert it at his pleasure. (Sanger v. Nightingale, 122 U.S. 176; Blair v. Mines, 84 F. 740; Fish v. Farwell, 160 Ill. 242; Hellman v. Kienc, 73 Iowa 750; Gault v. Trust Co., 100 Ky. 583; Ward v. Waterman (Cal.), 24 P. 930; Ordway v. Cowles (Kan.), 25 P. 862; Mills v. Sloan (Neb.), 68 N.W. 1040; Plummer v. Rohman (Neb.), 84 N.W. 600.) The statute does not destroy the debt, but prevents a remedy by action only. (R. S. 1899, Sec. 3450.) Foreclosure by advertisement is not an action, but a proceeding, and upon this there is no limitation, but a clear implication in the statute that none is intended. (R. S. 1899, Secs. 2778, 2794.) Hence, though the statute of limitations may have run against the debt, there may be foreclosure by advertisement. (Hays v. Frey, 54 Wis. 503; Golcher v. Brisbin, 20 Minn. 407; Shephard v. Ireland, 36 Tex. 655; Goldfrank v. Young, 64 Tex. 432; Fievel v. Zuber, 67 Tex. 275; Wyman v. Babcock, Fed. Cases, No. 18, 113; Babcock v. Wyman, 19 How., 289.)

The language of the mortgage sufficiently confers a power of sale. (Male v. Longstaff, 9 S. Dak., 389.) No particular form is necessary to confer a power of sale, but the power should be expressed in plain terms, though it may arise by implication as where a duty is imposed upon a trustee which he cannot perform without selling. (2 Perry on Trusts, Secs. 602, 766; Wilson v. Troup, 2 Cow., 195; Williams v. Otey (Tenn.), 8 Humph., 563; Hymer v. Devereux, 63 N. C., 624; Stoll v. Cincinnati, 16 Ohio St. 166; Richard v. Williams, 18 How., 143; Meakings v. Cromwell, 5 N.Y. 136; Rankin v. Rankin, 36 Ill. 293; Fluke v. Executors, 16 N.J. Eq. 478; Craig v. Craig et al., 3. Barb. Ch., 76; Winston v. Jones, 6 Ala. 550; Bank v. Ross, 11 Allen, 443; Goodrich v. Proctor, 1 Gray, 576; Prudie v. Whitney, 20 Pick., 25.) The death or insanity of the mortgagor will not annul the power of sale or suspend its exercise. (Reilly v. Phillips, 4 S. Dak., 604; Grandin v. Emmons, 10 N. Dak., 223; White v. Stephens, 77 Mo. 452; Batie v. Butler, 21 Mo. 313; Jones v. Taniter, 15 Minn. 423; Hudgins v. Morrow, 47 Ark. 515; More v. Calkins, 95 Cal. 435; Sulp, &c., Co. v. Thompson, 92 Va. 293; Connors v. Holland, 113 Mass. 50; Varnum v. Meserve, 8 Allen, 158; Berger v. Bennett, 1 Caines' Cas., 1; Berry v. Skinner, 30 Ind. 567; Lundberg v. Davidson, 68 Minn. 328; Same v. Same, 72 Minn. 49; Van Meter v. Darrah (Mo.), 22 S.W. 30.)

The treasurer or cashier of a trading or loaning corporation is presumed to have control of notes and mortgages belonging to it, and authority to sell and assign the same. (Corcoran v. Cattle Co., 151 Mass. 74; Loan Co. v. Rockland Co., 94 F. 335; Credit Co. v. Mach. Co., 54 Conn. 357; Perkins v. Bradley, 24 Vt. 66; Fay v. Noble, 12 Cush., 1; Bank v. Wheeler, 21 Ind. 90; Folger v. Chase, 18 Pick., 53; Bank v. Silk Co., 3 Metc., 282; Houghton v. Bank, 26 Wis. 663; Bank v. Bank, 14 N.Y. 633; 16 N.Y. 125; Bank v. Bank, 29 N.Y. 619; Banking Assn. v. White L. Co., 35 N.Y. 505.) That the instrument is executed in the name of the company and under its seal is a further presumption of authority. (Carr v. Loan Co., 33 S.E. 190; S. T. & T. Co. v. Bank, 52 N.E. 52; Thayer v. Mill Co., 51 P. 202; Chilton v. Brooks, 71 Md. 445; Morse v. Beale, 68 Iowa 463.) Delivery of the instruments assigned was a ratification of the agent's authority, if any were needed. (Burrill v. Bank, 2 Metc., 163.) In any event the defendant cannot question the authority of the treasurer to make the assignment, neither of the parties thereto nor the mortgagor offering any objection to the same. (Campbell v. Min. Co., 51 F. 1; Beels v. Park Assn., 74 N.W. 581; 7 Thompson on Corp., Sec. 8326; Head v. Horn, 18 Cal. 211.) The description of the mortgage in the assignment is sufficient, since it gives the names of the mortgagor and mortgagee, the book and page of the record where the mortgage was recorded. The assignment of a mortgage may be quite informal, yet if it identifies the instrument assigned, it will be sufficient. (Carli v. Taylor, 15 Minn. 131; Martinez v. Lindsey, 8 So., 787; Johnson v. Beard, 9 So., 535; Salvage v. Haydock, 44 A. 696; Thompson v. Brown, 10 S. Dak., 344; Morrison v. Mendenhall, 18 Minn. 232; Chilton v. Brooks, 71 Md. 445.) An objection to the proof of publication of the notice of sale, that the affidavit should have been made, not by the publisher, but by the proprietor or manager, cannot be raised in ejectment as a collateral attack upon the sale, and, moreover, the publisher is necessarily in the employ of the proprietor or manager knowing the facts, and, therefore, comes within Section 2792, Revised Statutes, 1899. (Pennoyer v. Neff, 95 U.S. 714; Cooper v. Reynolds, 10 Wall., 308.)

The word "trustee" following the name of the grantee in the sheriff's deed is merely descriptio personae and surplusage. (Rua v. Watson, 13 S. Dak., 454; Brewster v. Syme, 42 Cal. 139; Greig v. Clement, 20 Colo. 167; U. S. v. Abell, 76 N.Y.S. 692; Jerowski v. Marco, 34 S.E. 386; Hart v. Seymour, 35 N.E. 246; Den v. Hay, 21 N.J.L. 174; Winter v. Stack, 29 Cal. 408; Towar v. Hale, 46 Barb., 361; Gille v. Hunt, 29 N.W. 2.) It matters not to the defendant in any event whether the grantee is a trustee or not; that is a matter concerning only the beneficiary, if there be one. He is the holder of the legal title and the real party in interest, and entitled to sue in his own name. (Bolln v. Metcalf, 6 Wyo. 1; R. S. 1899, Secs. 3467, 3469; Considerant v. Brisbane, 22 N.Y. 389; Brick Co. v. Cook, 44 Mo. 29; Winters v. Rush, 34 Cal. 136; Weaver v. Trustees, 28 Ind. 112; Village of Kent v. Dana, 100 F. 56; Levy v. Cunningham, 56 Neb. 348; Meeker v. Waldron, 87 N.W. 539; Lewis v. Railway, 5 S. Dak., 148; Hudson v. Archer, 4 S. Dak., 128.)

The court erred in granting affirmative relief to defendants in the absence of a counter claim or pleading in equity, or even a prayer for such relief. (R. S. 1899, Secs. 3543, 3553, 3770, 4106-7, 4111-12; Anderson v. Rasmussen, 5 Wyo. 44; Pomeroy's Rem., Sec. 748.) A party claiming under a tax title must affirmatively show everything essential to the validity of the tax and sale. (Stout v. Mastin, 139 U.S. 151; Hecht v. Boughton, 2 Wyo. 385; Norris v. Hall (Mich.), 82 N.W. 832.) A tax sale of property that is misdescribed or not described in the assessment roll is invalid and will pass no title to the purchaser. (Black on Tax Titles, Sec. 112; Stout v. Mastin, supra; Bird v. Benlisa, 142 U.S. 664; Curtis v. Supervisors, 22 Wis. 167; Murphy v. Hill (Wis.), 31 N.W. 754; Keith v. Hayden, 26 Minn. 212; Kern v. Clarke (Minn.), 60 N.W. 809; Power v. Larrabee, 2 N. Dak., 141; Power v. Bowdle, 3 N. Dak., 107; Turner v. Hand Co., 11 S. Dak., 348; Van Cise v. Carter, 9 S. Dak., 234; People v. Purviance, 12 Ill.App. 216; Tallman v. White, 2 N.Y. 66; Keene v. Cannovan, 21 Cal. 290; Weeks v. Waldron (N. H.), 5 A. 660; Campbell v. Packard, 61 Wis. 88; Cooley on Taxation, pp. 282-5.) The property is valued at "400," without any designation of dollars or cents at the head of the column, which we think is insufficient. The lots are valued in gross and not separately. The tax of 1894 is carried out upon the tax list on a gross valuation of real estate and personal property. In 1895 this is attempted to be limited arbitrarily in red ink and pencil. The valuation of the lots in gross was a violation of the letter and spirit of the law, as they are not contiguous. (R. S. 1887, Sec. 3806; Black on Tax Titles, Sec. 102.) The delinquent tax list prescribed by statute must follow the previous list and show compliance with conditions precedent to a tax sale. (R. S. 1887, Sec. 3820; Black on Tax Titles, Sec. 199.) The property is misdescribed in the tax proceeding, which must be fatal to the tax sale, and the other defects mentioned render the sale invalid. (Cooley on Taxation, 344; Black on Tax Titles, Secs. 289, 260; Hecht v. Boughton, supra; 25 Ency. Law, 387; Lobban v. State, 9 Wyo. 377; Miller v. Spink Co. (S. Dak.), 47 N.W. 957.) The notice of the expiration of the period for redemption was insufficient. (State v. Hundhausen, 24 Wis. 196; Curtis v. Morrow, id., 664; Curtis v. Whitney, 13 Wall., 68; Coulter v. Stafford, 56 F. 566; Oullahan v. Sweeney, 79 Cal. 539; Herrick v. Niesz, 16 Wash. 78; R. S. 1899, Sec. 1895; 25 Ency. Law, 427-8; Black on Tax Titles, Sec. 339; 25 N.W. 142; 59 id., 202; 13 id., 849; 15 S. Dak., 271.) The notice is a jurisdictional requirement.

E. E Enterline and H. A. Alden, for defendant in error.

It is a universal rule in actions of ejectment that the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary. The notice of foreclosure sale should have been given by the assignee of the mortgage and not by the sheriff. (R. S. 1899, Sec. 2779.) The sale must be made at the front door of the court house within...

To continue reading

Request your trial
12 cases
  • Matthews v. Blake
    • United States
    • Wyoming Supreme Court
    • 2 Noviembre 1907
    ... ... 832; ... Hecht v. Boughton, 2 Wyo. 385; Wolcott v ... Holland, 27 O. C. C., 71; 2 Cooley Taxation, 916, 1004.) ... Assessment is the jurisdictional pre-requisite to taxation ... The property must be correctly described to validate a tax ... sale. (Black Tax Titles, 112; Matthews v. Nefsy, 13 ... Wyo. 458; Van Cise v. Carter, 9 S.D. 234; Moon ... v. S. L. Co. (Utah), 76 P. 222; Kruse v. Fairchild ... (Kan.), 85 P. 303; Alleman v. Hammond (Ill.), ... 70 N.E. 661; O'Day v. McDonnell (Mo.), 80 S.W ... 895; Brown v. Reeves (Ind.), 68 N.E. 604; City ... v. Farrar, 89 N.Y.S. 1035; ... ...
  • Delfelder v. Teton Land & Investment Co.
    • United States
    • Wyoming Supreme Court
    • 29 Agosto 1933
    ...of plaintiff in error. Plaintiff's title was derived through the mortgage and foreclosure deed. 89-2966, 2972, 2974 R. S. 1931. Matthews v. Nefsy, 13 Wyo. 458. On seeking to title on the ground of homestead right, defendant must show facts upon which the homestead right depends, as is requi......
  • Delfelder v. Land Co., 1792
    • United States
    • Wyoming Supreme Court
    • 29 Agosto 1933
    ...in error. Plaintiff's title was derived through the mortgage and foreclosure deed. 89-2966, 2972, 2974 R.S. 1931. Matthews v. Nefsy, 13 Wyo. 458. On seeking to avoid title on the ground of homestead right, defendant must show facts upon which the homestead right depends, as is required by j......
  • Arp & Hammond Hardware Co. v. Hammond Packing Co.
    • United States
    • Wyoming Supreme Court
    • 2 Junio 1925
    ... ... Co., 171 P. 223; Smith v. Bank, 54 A. 385; ... Alexander v. Irrigation Co., 85 N.W. 283; Frank ... v. Hicks, 4 Wyo. 502; Mathews v. Nefsy, 13 Wyo ... 458; besides authority previously given, the evidence shows ... ratification by subsequent acquiescence; Atherton v ... Beaman, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT