Robinson Merc. Co. v. Davis

• Decision Date: 08 March 1920
• Docket Number: 937
• Citation: 187 P. 931,26 Wyo. 484
• Parties: ROBINSON MERC. CO. v. DAVIS
• Court: Wyoming Supreme Court

187 P. 931

26 Wyo. 484

ROBINSON MERC. CO. v. DAVIS

No. 937

Supreme Court of Wyoming

March 8, 1920

ERROR to the District Court, Weston County; HON.E. C. RAYMOND Judge.

Action between the Robinson Merc. Co. and Leaman Davis and others. There was a judgment in favor of the Upton Lumber and Hardware Co. and the Robinson Merc. Co., brings error.

Affirmed in part and reversed in part.

Metz &amp Sackett, for plaintiff in error.

Plaintiff in error is a judgment creditor and claims a lien upon the lands involved, superior to a mortgage deed to the Upton Lumber Co., which, though prior in time to plaintiff's judgment, is attacked on the ground that the alleged mortgagee is a partnership and incapable of taking a mortgage; also that as to 40 acres of the land, mortgagor did not have title to it, on the date of the mortgage, but acquired title subsequent and, under the circumstances, the judgment lien attached as a first lien; the published notice of foreclosure was defective for insufficient description of the land; the certificate of sale under the mortgage foreclosure did not show that a sale had taken place, and it was not acknowledged nor entitled to record, hence insufficient to authorize a sheriff's deed. The 40 acres was acquired after the execution of the mortgage and became subject to the lien of judgment of plaintiff in error (23 Cyc. 1376-81; Coad v. Cowhick, 9 Wyo. 316); the mortgage to the partnership, defendant in error, conveyed no title and could not be foreclosed by advertisement (Menage v. Burke, 45 N.W. 156; Gille v Hunt, 29 N.W. 2; Tidd v. Rines, 2 N.W. 497); findings numbered 15, 18, 19, 20, 23 are unsupported by the evidence; conclusions of law numbered 5, 6, 13, 14, 16, 17, 18, 21, 25 are not sustained by the evidence or the findings of fact; important portions of the decree are not supported by the evidence and are contrary to law.

Camplin & O'Marr, for defendants in error.

There is but one assignment in the petition in error, to-wit: the overruling of the motion for a new trial, but it does not appear in the petition that it was excepted to; errors of law complained of in the motion were not excepted to at the trial, and are, of course, not reviewable (Elliott App. Pro. 795); this is insufficient (12 Kinkead Code Pleading 1275). The petition does not describe the cause wherein the errors occurred, or the judgment to be reviewed as required by Court Rule No. 10. The bill of exceptions is not properly authenticated; the mortgage of the Upton Lumber Co. was prior in time to the judgment of plaintiff in error; the attaching of a judgment lien does not disturb existing equities (13 Cyc. 1377); the mortgage given the Upton Co. was not a conveyance, but merely a security (40 N.W. 255; 12 A. S. R. 736; 41 N.W. 1056; 95 A. S. R. 742; 75 N.W. 1109); in this state a mortgage is not a conveyance; the judgment of plaintiff in error never attached to the 160 acres (Section 2296, U. S. R. S.); irrespective of the Upton Lumber Co. mortgage, the plaintiff in error could get out an execution against W. H. Ware and take the 160 acres, for the reason that it was exempt from claims that accrued prior to patent (45 P. 766; 32 P. 460; 70 N.W. 933); but the owner can mortgage it (7 P. 693); a mortgage covers after acquired title (42 N.W. 88; 37 N.W. 417; Fuller v. Hunt, 20 P. 425). The judgment of the court below should be affirmed.

BEARD, CHIEF JUSTICE. POTTER and BLYDENBURGH, JJ., concur.

OPINION

BEARD, CHIEF JUSTICE.

The only controversy in this case in this court is between the plaintiff in error, Robinson Mercantile Company, and the defendant in error, The Upton Lumber and Hardware Company, The Upton Lumber and Hardware Company claiming to be the owner of two hundred acres of land situated in Weston county, upon which the Robinson Mercantile Company claims a lien by virtue of a certain judgment. The court found in favor of The Upton Lumber and Hardware Company and entered a judgment and decree accordingly, from which the Robinson Mercantile Company brings the case here by proceedings in error.

The facts as they appear by the record are that, December 15, 1909, William H. Ware made final homestead proof and received the receiver's receipt for the N. 1/2 of the N.W. 1/4, the S.E. 1/4 of the N.W. 1/4, and the N.E. 1/4 of the S.W. 1/4 of section 35, township 48 North, Range 67 West of the 6th principal meridian, containing 160 acres. That he received a patent therefor from the United States July 12, 1913. That December 29, 1909, Henry E. Ware and wife gave to said William H. Ware a warranty deed to the N.E. 1/4 of the S.W. 1/4 of section 26, in said township and range, containing 40 acres, which deed was filed for record, February 10, 1910. That Henry E. Ware received a patent from the United States for said last above described land December 26, 1913. That June 17, 1911, William H. Ware and wife gave a mortgage on said 200 acres of land, and other lands, to The Upton Lumber and Hardware Company to secure a promissory note for $ 866.15, dated June 17, 1911, due six months after date, with interest at 10% from date, said mortgage being filed for record June 23, 1911. Said mortgage was foreclosed by notice and sale July 10, 1915, The Upton Lumber and Hardware Company becoming the purchaser of said 200 acres for the full amount due on said mortgage. That The Upton Lumber and Hardware Company is a co-partnership composed of Charles E. Foster and Harold H. Jones. That Robinson Mercantile Company, a corporation, obtained a judgment in the District Court of Weston County September 12, 1912, against William H. Ware and Jessie A. Ware, his wife, for $ 1,387.74, which remains unsatisfied.

Counsel for plaintiff in error attacks the validity of the Upton Co. mortgage on two grounds. First, that it is not made to any person or corporation, the mortgage being given to "The Upton Lumber and Hardware Company". Second, "The mortgage does not state whether the township is north or south, or whether the range is east or west, and the description of the land is given entirely by abbreviations instead of words, to designate the portions of sections".

Neither of those objections are good. No authorities are cited by counsel in support of either. As to the first, the decisions are to the contrary. In Barber v. Crowell, 55 Neb 571, 75 N.W. 1109, that court said: "But, on the assumption that the mortgagee was a partnership or unincorporated association, it is contended that it could not take title to real estate, and that the mortgage was, therefore, a nullity. It is undoubtedly true that a conveyance of land will be ineffectual to pass the legal title unless made to a grantee having capacity to receive it; and it is also true that a partnership possesses no such capacity. But a mortgage is not a conveyance. It is a mere security in the form of a conditional conveyance, and the interest which it vests in the mortgagee is not essentially different from that created by a mechanic's lien or an ordinary judgment (Davidson v. Cox, 11 Neb. 250, 9 N.W. 95; Buchanan v. Griggs, 18 Neb. 121, 24 N.W. 452). In the former case it was said: 'In this state, a mortgage of real estate is a mere pledge or collateral...