Ryan v. Bloom

• Decision Date: 14 November 1947
• Docket Number: 8744.
• Citation: 186 P.2d 879,120 Mont. 443
• Parties: RYAN v. BLOOM er al.
• Court: Montana Supreme Court

186 P.2d 879

120 Mont. 443

RYAN v. BLOOM er al.

No. 8744.

Supreme Court of Montana

November 14, 1947

Rehearing Denied Dec. 8, 1947.

Appeal from Third Judicial District Court, Granite County; William R. Taylor, Judge.

Action by George F. Ryan against Edward J. Bloom, Helen Bloom and others to quiet title to certain real property. From a judgment for plaintiff, the named defendants appeal.

Affirmed.

S. P. Wilson, of Deer Lodge, for appellants.

Walter L. Pope and Russell E. Smith, both of Missoula, for respondent.

CHOATE Justice.

This is an appeal by defendants Edward J. Bloom and Helen Bloom from a judgment of the district court of Granite county in favor of plaintiff in an action to quiet title to certain real property. The complaint is in the usual short form of quiet title suits against both known and unknown defendants alleging ownership of the land in question by plaintiff and the assertion of adverse claims thereto by defendants.

Answering defendants have set up several defenses in which, briefly stated, they plead the following matters:

1. That on November 25, 1941, plaintiff had conveyed the land in question to defendant Edward J. Bloom by quitclaim deed regularly acknowledged and recorded, accompanied by a contemporaneous written contract between said parties setting forth the conditions under which said deed was executed; that it was agreed that defendant Edward J. Bloom should cause a bucket-line dredge to be built and operated on said land and should carry on placer gold mining operations thereon. Plaintiff was to be paid $8,270 as the purchase price of said land. The payments were to be made from 'ten percent of the production of gold from said land' but said payment should be $25 per month from the date of the agreement until January 1, 1944, and no less than $1,200 per year thereafter.

2. That the defendant Edward J. Bloom was inducted into the United States active naval service on February 28, 1942, and continued therein until February 10, 1945; that by reason of said service defendant was unable to carry on the mining operations and that under the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A.Appendix, § 501 et seq., plaintiff is barred from asserting cancellation of said contract for failure of performance while defendant was in the military service of the United States.

3. That in January, 1942, the United States war production board issued an executive order prohibiting the use of materials for the construction of a bucket-line gold dredge and later prohibited the operation of gold dredges, thus making it impossible for defendant Bloom to carry on placer gold mining operations in compliance with his contract with plaintiff.

4. That said defendant is now desirous of resuming performance of his contract with plaintiff and wishes to pay plaintiff what is due under said contract and that on September 10, 1945, he tendered the plaintiff $150 to apply on the purchase price of the land, which offer was rejected.

5. That plaintiff is not the real party in interest in this action because of the fact that after the execution of the deed and contract between plaintiff and defendant Bloom, plaintiff assigned said contract to his daughter Katherine Simmons.

With the exception of formal matters, the reply raises issues on the allegations of the above defenses and alleges nonperformance by defendant Bloom of virtually all of the terms of the contract and deed of November 25, 1941, by him agreed to be performed. The reply further alleges that the deed and contract both executed on November 25, 1941 constituted only an option to purchase the land in question, the terms of which option were never complied with by defendant Edward J. Bloom; that the quitclaim deed given by plaintiff to Edward J. Bloom was executed with the understanding that it should not be recorded until the payments provided for in the contemporaneous agreement had been made but that said defendant recorded the deed in violation of that agreement. The court made findings of fact and conclusions of law in favor of plaintiff on all issues and entered a decree quieting title to the land in plaintiff.

On appeal to this court the presumption is that the findings of the trial court and its judgment based thereon are correct, and they must be sustained when supported by substantial evidence. Demos v. Doepker, Mont., 182 P.2d 469, 473; State ex rel. Anderson v. Gile, Mont., 172 P.2d 583; Sanders v. Lucas, 111 Mont. 599, 111 P.2d 1041.

Appellants' specifications of error.

No. 1. As we understand this specification, in the light of counsel's argument and his objections to the introduction of evidence, it is to the effect that the pleadings do not warrant the relief asked and that an action based upon section 8733, Revised Codes of Montana 1935, 'would seem to present the claims urged by plaintiff' rather than the short form of quiet title suit under sections 9479-9487, under which this action is brought.

In Slette v. Review Publishing Co., 71 Mont. 518, 230 P. 580, we pointed out the difference between an action to quiet title under section 9479 and one to remove a cloud on title under section 8733. However we need not in this case sonsider whether or not plaintiff might have proceeded against the answering defendants under section 8733. It is sufficient to say that plaintiff elected to proceed under sections 9479-9487 under which any cloud on plaintiff's title may be removed or any adverse claim whatsoever to plaintiff's land may be determined. We doubt whether the able counsel for appellants can have intended to assert that plaintiff's complaint does not state a cause of action for quieting title to real property under sections 9479-9487. The complaint is in the usual short form of actions to quiet title, the sufficiency of which we approved in Slette v. Review Publishing Co., supra, and cases cited therein, and in Teisinger v. Hardy, 91 Mont. 9, 5 P.2d 219.

No. 5. Defendant Bloom and wife contend that before the commencement of this action plaintiff has assigned to Katherine Ryan Simmons, his daughter, all of his interest in the contract, plaintiff's exhibit 4, and the payments to be made under it. The assignment in question was in writing, defendants' Exhibit A-1, and was attached to the contract. The assignment reads as follows:

'For value received and in consideration of love and affection, I do hereby assign the within real estate contract to my daughter Katherine Simmons of Missoula, Montana December 1, 1941

George F. Ryan.'

With respect to this assignment the following facts appear: Plaintiff testified that he told Mr. Bloom that 'in case anything should happen to me, I would like to have him make the payment to my daughter, Katherine Simmons,' who was in Missoula at the time. Plaintiff also stated his reason for the request to be the fact that his daughter was his only heir. Mrs. Simmons testified that she never saw the assignment until it was presented to her during the trial of the case; that she never, prior to the trial, had any knowledge of its existence and that she never received any payment on account of the contract or assignment and that she claimed no interest in the real property in question as long as her father was living. Defendant Bloom corroborated plaintiff's testimony in this regard. Bloom drew the assignment at Ryan's request and testified that Ryan told him that 'He expected he might pass on and desired that the income from the property should be paid to his daughter if he did pass on.' The assignment was never delivered to Katherine Simmons. It is clear from the foregoing testimony that the assignment in question was not intended to take effect in possession or enjoyment until the death of the assignor and that the assignor never made a delivery of the assignment to the assignee, his daughter. Under these facts the plaintiff is not barred thereby of his right to maintain his suit to quiet title to the property.

No. 6. Appellants contend that the Soldiers' and Sailors' Civil Relief Act constitutes a defense to this action, in view of the fact that defendant Edward J. Bloom served in the United States Navy during World War II. Defendants have not cited any specific provision of said Act in support of their contention but have left to this court the task of ascertaining what provision if any of said Act is claimed to be applicable to the facts of this case. We have examined the Soldiers' and Sailors' Civil Relief Act, U.S.C.A. Title 50 Appendix, §§ 501-590, and we find no provision of said Act which might be claimed to be applicable to this case unless it be the provisions of subdivision (1) of section 531(1), Title 50 U.S.C.A.Appendix as amended by the Act of 1942 relating to relief under rental agreements, installment contracts, mortgages, etc. That section however, in so far as the facts of this case are concerned, provides relief for those in the military service who have paid a deposit or installment payment under a contract for the purchase of real estate. Assuming for present purposes that Edward J. Bloom's contract was one for the purchase of land, it is plainly apparent that he never paid any of the installments due on said contract and that he is not therefore within any of the classes of persons enumerated in section 531, supra.

Defendants further assert that the provisions of the United States war production limitation order, L-208, prohibiting the operation of gold dredges and other placer mining operations, made it impossible for defendant Edward J. Bloom to carry out the provisions of his contract with plaintiff, thereby precluding the maintenance of this action.

The first of these limitation orders was issued October 8, 1942. Defendant Edward J. Bloom had been in...