Pregal v. Stickney

• Citation: 243 P. 392,34 Wyo. 324
• Decision Date: 16 February 1926
• Docket Number: 1219
• Parties: PREGAL v. STICKNEY [*]
• Court: United States State Supreme Court of Wyoming

243 P. 392

34 Wyo. 324

PREGAL v. STICKNEY ^[*]

No. 1219

Supreme Court of Wyoming

February 16, 1926

ERROR to District Court, Albany County; WILLIAM A. RINER, Judge.

Action by Martha E. Stickney against Augusta Pregal and Harvey Pregal, in which the latter was dismissed after trial. Judgment for plaintiff, and remaining defendant brings error.

Affirmed.

H. V S. Groesbeck and S. C. Downey for plaintiff in error.

Plaintiff was not in possession and could not maintain an action to acquire title. 6234 C. S. Durell v. Abbott, 6 Wyo 265. Neither can plaintiff maintain an action to establish title by adverse possession. Bowman v. Pinkham, 71 Mo. 295; Almond v. Bonnell, 76 Ill. 536. Plaintiff alleged a fee simple title, the most extensive title that can be enjoyed. 16 Cyc. 602. The case presents a conglomeration of law and equity, not sustainable under our statute. The mortgage had been paid. An equitable title is not a legal title that will sustain an action for possession. Morton v. Green, 2 Nebr. 79; Kingman v. Seevers, 143 Mo. 519; Peter v. Stevens, 11 Mont. 448, 28 A. S. R 448. Adverse possession must be open, notorious and exclusive and taken under color of title in order to ripen into a title. Bolln v. C. & S. R. R. Co., 23 Wyo. 395, or founded on a claim of right. Gustin v. Martin, 20 Wyo. 1. Defendant in error never lived on the premises. A mere claim to land is not possession. 2 C. J. 53. Brumigan v. Bradshaw, 39 Cal. 24; Becker et al v. McCrea, 193 N.Y. 423; 23 L. R. A. (N. S.) 754. There must be an actual possession. Morris v. Ile, 152 Ill. 190; Tiedman's cases, 551; Yarborough v. Newell, 18 Tenn. 376. The possession proven was that of the Trustee and not based wholly on foreclosure. Mortgagee in possession, by consent, is not adverse, and possession, under a mortgage, without consent, is not adverse. Reading v. Waterman, 46 Mich. 107, 8 N.W. 691; Greene v. Turner, 38 Iowa 112; Jasper Tp. v. Martin, 161 Mich. 137; City v. Gillespie (Wash.) 144 P. 697; Mitchell v. Green, (Minn.) 145 N.W. 424; Sefferlein v. Fouster (Mich.) 187 N.W. 602; Bolln v. C. & S. R. R. Co., Supra; defendant elected her remedy. Barquin v. Hall Co., 28 Wyo. 164. All other remedies were waived. Mach. Co. v. Rice, (Wis.) 139 N.W. 445; Mintz v. Jacob, (Mich.) 128 N.W. 211. This is particularly true where remedies are inconsistent. Weeks v. Reid (Fla.) 6 So. 749. Pleadings of admissions against interest and acts and conduct inducing another to act, are admissable. Bamforth v. Ihmsen, Admr., 28 Wyo. 284; Ford, et al v. Libby et al, 22 Wyo. 464. The right to reform the deed under the evidence seems to be clear. 34 Cyc. 910.

J. R. Sullivan for defendant in error.

Plaintiff took possession of the premises in 1901, made extensive repairs, paid the taxes and exercised every right of ownership over the property for seventeen years. There was not evidence of permissive possession. Adverse possession is presumed after long continued possession. Nash v. Co., 108 N.W. 792. Title acquired by adverse possession for the statutory period is not lost by owner's assertion of right under some other title subsequently acquired. 2 C. J. 256; 1 R. C. L. 722; McInnis v. Co. (Wash.) 172 P. 844; Lawson v. Bishop (Mich.) 180 N.W. 596; Carlson v. Co. (Mich.) 152 N.W. 960; Blackburn v. Coffee (Ark.) 218 S.W. 836. Title either by foreclosure or adverse possession is sufficient; 19 R. C. L. 462. Plaintiff's attempt to establish title under a defective deed made by Feast, is inequitable and should not be viewed with favor by this court.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

The plaintiff, Martha E. Stickney, brought this action against defendants, Augusta Pregal and Harvey Pregal, to recover possession, and damages for withholding possession, of lot 10 in block 149, Laramie. After trial without a jury, Harvey Pregal was dismissed out of the case, and plaintiff given judgment against the remaining defendant who brings the case here on error. The plaintiff in error will be called defendant and the defendant in error plaintiff, as in the district court.

The property in question formerly belonged to Thomas Feast who, on April 2, 1891, mortgaged it to plaintiff to secure a note of that date for $ 500 due in two years. The note shows nothing paid thereon except one installment of interest. In 1901 or 1902 plaintiff took possession of the property, and continued in possession until 1920. The mortgage had not been foreclosed, and was the only paper or record evidence of plaintiff's interest in the property. In the spring of 1919 the defendant, desiring to buy the property, was negotiating with plaintiff for that purpose, and discovered the condition of the title. Defendant's agent was then informed that plaintiff probably would have to foreclose her mortgage in order to clear her title. Thereupon, defendant tried to obtain from Feast a quitclaim deed to the lot, and succeeded in obtaining from him a deed which, however, described lot 11 instead of lot 10. At that time the property was occupied by plaintiff's tenant, a Mrs. Murdock, defendant's daughter. Defendant obtained possession either from Mrs. Murdock or by entry after Mrs. Murdock moved out. At any rate defendant was found in possession in 1920 and continued in possession until this action was commenced. In the meantime the plaintiff sought to foreclose her mortgage under power of sale, but on the trial she did not prove the foreclosure nor rely on title obtained thereby. The defendant, however, introduced the notice of sale, published in the fall of 1920, for the purpose of showing that the plaintiff then claimed the property as mortgagee and not as owner. Feast died some time in the fall of 1919.

In an action for the recovery of real property, possession is the relief sought, and questions as to the title become important to show who has the right to possession. Allen v. Houn, 30 Wyo. 186, 219 P. 573. When the plaintiff in this case proved that she was in prior possession of the lot in question she made out a prima facie case showing her right to possession, and this right would prevail and entitle her to judgment unless the defendant showed a better right. Allen v. Houn, supra, at pp. 213-214, 219 P. 583, 584; Bentley v. Jenne (Wyo.), 33 Wyo. 1, 236 P. 509, 512. Defendant had no right whatever, and was a mere intruder, unless her quit-claim deed from Feast gave her a right to possession. Realizing this, defendant sought in this action to have the deed reformed on the ground of mistake. Whether that could have been accomplished in this case to which Feast's heirs were not parties, is a question we pass without decision.

Assuming that the deed from Feast might have been reformed in this action, we think it quite clear that the evidence was insufficient to warrant that relief. The only testimony to prove mistake was given by Mr. Hunt, defendant's son-in-law, who drew the deed and conducted the incidental negotiations. These negotiations were with Dr. Miller of Laramie. Miller did not testify. Hunt and Feast never met and never communicated with each other. There is nothing to show the extent of Miller's authority as Feast's agent, and nothing to show the relation of agency except Hunt's testimony that Miller was Feast's agent. Hunt undoubtedly made a mistake when he wrote the deed, but there is nothing to prove that Feast made a mistake when he executed it. There was evidence to show that Feast at one time owned lot 11 as well as lot 10. He had parted with his title to lot 11, and at the time he executed the deed in question he owned no property in Laramie unless he still had some interest as mortgagor in lot 10. It is contended that his intention to convey his interest in lot 10 may be inferred from these circumstances. We think the inference does not follow. It is as reasonable to suppose that he thought the deed was needed to clear the title to lot 11.

Plaintiff's actual possession of the property for some seventeen years prior to 1920 was proved beyond question by uncontradicted testimony. She had leased the property and collected the rents, returned it for taxation and paid the taxes, and made improvements. She had never resided there, but that was not necessary. Freeman v. Crout, 1 Wyo. 361; Bryant v. Cadle, 18 Wyo. 64, 85; 2 C. J. 57, 104 P. 23, 106 P. 687.

The plaintiff contended at the trial that her possession from 1902 to 1920 was adverse and that she thereby acquired the fee simple title to the occupied lot. The defendant contended that plaintiff's possession was under her mortgage; not hostile to the mortgagor, and, therefore, that it could not ripen into title by adverse possession. The issue thus raised was immaterial when defendant failed to prove that she had succeeded to the rights of the mortgagor. The deed to lot 11 was not even color of title to lot 10. When it appeared that defendant had no color of title it was not only unnecessary but useless to try questions of title between plaintiff and those who might claim under Feast. A mere intruder cannot enter on a person actually seized, and then question his title, or set up an outstanding title in another. Christy v. Scott, 55 U.S. 282, 14 HOW 282, 292, 14 L.Ed. 422; People v. Inman, 90 N.E. 438, 197 N.Y. 200; Hall v. Gallemore, 40 S.W. 891, 138 Mo. 638; Penrose v. Cooper, 81 P. 489, 84 P. 115, 71 Kan. 720; Elofrson v. Lindsay, 63 N.W. 89, 90 Wis. 203; Hubbard v. Little, 9 Cush. 475.

Hubbard v. Little, supra, was a...