McManus v. McGrath
| Decision Date | 10 August 1912 |
| Docket Number | 686 |
| Citation | 20 Wyo. 500,126 P. 44 |
| Parties | McMANUS ET AL. v. McGRATH ET AL |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Big Horn County; HON. CHARLES E CARPENTER, Judge.
The action was brought by Asa McManus and wife, and Ora L. Allen to quiet title to a certain tract of land in Big Horn County. The defendants named in the petition were Martin McGrath and the three minor children of Robert A. McCoy, deceased, and John L. Davison, their guardian. Subsequently James F. Kinney was made a party defendant, and also John L. Davison in his capacity as administrator of the estate of Robert A. McCoy deceased. Kinney died before the trial of the cause, and Pete Kinney was substituted as the administrator with the will annexed of the estate of James F. Kinney. A cross-petition was filed by Martin McGrath and the First National Bank of Lander filed an intervening petition by permission of court but during the trial the order permitting the filing of the intervening petition was, on motion, vacated. Judgment was rendered for defendants and the plaintiffs brought error.
Affirmed.
W. S. Collins and William C. Snow, for plaintiffs in error.
The sustaining of the motion of the defendants Davison and Kinney for judgment at the close of the evidence presented by the plaintiffs was error. Where parties go to trial without an issue formed upon an affirmative pleading, it will be assumed that an answer or reply was waived, and the burden of proof will be upon the party pleading affirmatively. (Brower v. Nellis, 40 N.E. 707; Purple v. Farrington, 119 Ind. 164.) The evidence of plaintiffs was sufficient to make a prima facie case. They presented the case on the theory that their showing of ten years' adverse possession and a patent from the United States was sufficient, there being no admission of the execution of the warranty deed under which the opposing parties claimed the title. Such showing was sufficient because the burden of proof then rested upon the defendants to show that at the time of the execution of the warranty deed the equitable title was in McManus. If it be conceded that the giving of a deed by McManus to McCoy was admitted by the pleadings, then we contend that the judgment was erroneous for the reason that such a deed was illegal and void, as contrary to public policy and the land laws of the United States, being executed prior to the acquisition of legal title. McCoy could not have secured a patent upon the deed of McManus without a showing as required by the public land laws. (King v. McAndrews, 11 F. 860; In re Oakley, 34 Land Dec. 383.) The case at bar would be an exception to the general rule that under a warranty deed after acquired title will inure to the benefit of the grantee. An illegal contract does not destroy the right of an entryman on public lands. (Heinzman v. Heirs, &c., 28 Land Dec. 497; Vradenbergs' Heirs, 25 L. Dec. 323; In re Hobson, 29 L. Dec. 453.) The deed from McManus was not introduced in evidence, and hence there was no ground for holding that he was estopped by the covenants of the deed. But assuming that he had admitted in the pleadings the execution of the deed, he was not precluded from claiming it to be void. A void deed works no estoppel. (
A party to the suit may testify where the validity of a deed is involved, although the adverse party sues or defends as the representative of the deceased person. (Comp. Stat. 1910, Sec. 4538; Doney v. Clark, 55 O. St. 294, 45 N.E. 316; Paddock v. Adams, 56 O. St. 242, 46 N.E. 1068.) When the transaction resulting in the giving of a deed opens with a loan, the courts are inclined to treat the deed as a mortgage. (3 Devlin on Deeds, 1117, 1118, 1133; Crews v. Treadwell, 35 Ala. 334.)
Stone, Winslow & Maxwell, for defendants in error, Davison as administrator, and the minor children of Robert A. McCoy, deceased.
The sole error assigned is the overruling of the joint motion for new trial of the plaintiffs in error and the First National Bank of Lander. The First National Bank was not a party to the cause, and had no interest in the land, which was the subject of the suit. The motion for new trial was certainly properly overruled as to the bank, and therefore it must be deemed to have been properly overruled as to the plaintiffs in error. (Shedd Ditch Co. v. Peterson, 18 Wyo. 402; Milling Co. v. Price, 4 Wyo. 293; Hogan v. Peterson, 8 Wyo. 549.) When the intervening petition of the bank was stricken from the files its appearance in the case was terminated. It could have no standing in this court on error from the judgment rendered in the cause. Had the bank filed a separate motion for new trial, and a separate petition in error, it could not have been heard here to assail the judgment. (Menardi v. O'Malley, 3 Wyo. 327; Turner v. Hamilton, 10 Wyo. 177; Greenawalt v. Imp. Co., 16 Wyo. 226.) The ruling of the court complained of as to the bank was not error, for the District Court was without jurisdiction of the parties and the subject matter set out in the intervening petition.
R. B. West and H. S. Ridgely, for defendant in error, Pete Kinney.
The case of plaintiffs upon the petition is not one for quieting title. (3 Bates Pr., Pl. &c., 2459.) The gravamen of the action is to set aside a deed executed by McManus, and for that purpose the petition does not contain a sufficient statement of facts. In this action upon the petition all that can be adjudicated would be the right of possession. (Bank v. Steinhoff, 11 Wyo. 305.) The amended answer of Kinney took the place of the original answer. (Turner v. Hamilton, 13 Wyo. 408.) The amended answer was not replied to, and it therefore stood as admitted. The plaintiffs did not show such possession as is necessary to give title by adverse possession. When a United States patent is issued it relates back to the original entry and inception of the title, so far as necessary to protect the title of the purchaser. (Gibson v. Chauteau, 13 Wall. 92; Phillips v. Carter, 67 P. 1031.) The plaintiff, Asa McManus, was incompetent to testify to the facts and circumstances surrounding the giving of the deed to McCoy. (Comp. Stat. 1910, Sec. 4538; Ulman v. Abbott, 10 Wyo. 110; Weidenhoft v. Primm, 16 Wyo. 359; Hecht v. Shaffer, 15 Wyo. 39; Hubbell v. Hubbell, 22 O. St. 208.) That a deed was intended as a mortgage must be established, if at all, by clear and convincing evidence. (27 Cyc. 1017.) There must be a debt to be secured, or a deed cannot be construed as a mortgage. (Weltner v. Thurmond, 17 Wyo. 268; 27 Cyc. 1008; Morrison v. Jones, (Mont.) 77 P. 507.) Parol evidence may be admissible to show that a deed was intended as a mortgage, but where a third party is concerned it must appear that he has not been misled by the transaction or has not reposed trust or confidence on the strength of the deed, and such proof is not admissible against a subsequent purchaser for value without notice. (27 Cyc. 1024, 1072.) The desert land laws do not contain any expression prohibiting the sale of the land by the entryman. On the contrary, the laws provide that such a sale can be made. (Phillips v. Carter, (Cal.) 69 P. 1031.) A sale by the entryman can only be questioned by the United States, and cannot be collaterally attacked. (32 Cyc. 1072; Tidwell v. Cattle Co., (Ariz.) 53 P. 192; Hardware Co. v. Cobban, (Mont.) 34 P. 24.)
W. S. Collins and William C. Snow, for plaintiffs in error, in reply to the brief of the defendants in error represented by Stone, Winslow & Maxwell.
If, as contended by opposing counsel, the First National Bank of Lander was entirely out of the case when the motion for new trial was filed, then its joinder with the plaintiffs in the motion for new trial was a nullity, and the court ought not to regard such joinder as affecting the rights of the parties to the cause in whose behalf the motion was filed. (Ex parte Printing Co., 2 Wash. 427, 27 P. 232.) The rule adopted to the effect that the motion for new trial being joined in by all the plaintiffs, it must be sustained as to all is harsh and liable to deprive parties of their legal rights by a mere legal technicality. The more reasonable rule is that a joint motion will be sustained if the grounds are sufficient as to any of the parties, treating the mere joinder of parties in one motion as a harmless error, not affecting the substantial rights of the parties. ...
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