Seibel v. Bath

• Decision Date: 25 June 1895
• Citation: 5 Wyo. 409,40 P. 756
• Parties: SEIBEL ET AL. v. BATH ET AL
• Court: Wyoming Supreme Court

40 P. 756

5 Wyo. 409

SEIBEL ET AL. v. BATH ET AL

Supreme Court of Wyoming

June 25, 1895

Commenced in District Court May 9, 1891.

ERROR to District Court for Albany County, HON. JOHN W. BLAKE Judge.

ACTION to enjoin foreclosure of mortgage and mechanic's liens on property of infant heirs, and for the cancellation of said liens. The facts are fully stated in the opinion.

Reversed.

Nellis E. Corthell, for plaintiffs in error.

Where the right of action is clearly divisible, and the judgment is against one of the defendants and in favor of the other, the unsuccessful defendant need not make the other a party to the appeal, unless such action is taken in the trial court as makes both of the defendants necessary parties to the appeal. (Elliott App. Pro., 141; Cox v. U.S. 6 Pet., 179; Brewster v. Wakefield, 63 U.S. 128; Davies &c Co. v. Gottschalk, 81 Cal. 641; Fein v. Fein, 3 Wyo. 161.) The rights of Berner, Seibel and Crumrine are entirely distinct and several. One defendant can appeal if he have a several interest. (Forgay v. Conrad, 6 How., 201; Withenbury v. U.S. 5 Wall., 819; Germain v. Mason, 12 id., 259; Milner v. Meek, 95 U.S. 253.) The motion having been made to add the omitted party, he having consented thereto and requested the same, it should be granted. (Smetters v. Rainey, 13 O. St., 568; id., 14 id., 287; Bradford v. Andrews, 20 O. St., 208; Secor v. Witter, 39 id., 227; Bank v. Green, 40 id., 431; Wangerien v. Aspell, 47 id., 250.) The heirs can have no resulting trust in the land. Such a trust must arise, if at all, at the time when title to the land is acquired, and as a result of the payment of the purchase price by the cestui que trust. (Olcott v. Bynum, 17 Wall., 44; McClure v. Doak, 6 Baxt., 364; White v. Carpenter, 2 Paige, 238; Rogers v. Murray, 3 id., 398; Watson v. Erb, 33 O. S., 47; Walter v. Klock, 55 Ill. 362; Buck v. Swazey, 35 Me. 51.)

No interest in the land arises in favor of one advancing money for improvement thereof. (Bodwell v. Nutter, 63 N.H. 446; Francestown, v. Deering, 41 id., 438; Brown v. Turner, 113 Mo. 27.) It is essential to the creation of a resulting trust that the whole or an aliquot part of the purchase money should have been furnished by the beneficiary, so that he may be said to have an equity in the whole or in an undivided portion. (Sayre v. Townsends, 15 Wend., 650; Reynolds v. Morris, 17 O. St., 510; McGowan v. Same, 14 Gray, 119; Perry v. McHenry, 13 Ill. 227; Baker v. Vining, 30 Me. 121.) The resulting trust must be an equitable title, not merely a lien. (Cross v. Gaults, App. 97, Pa. 471; Hepburn v. Snyder, 3 id., 72; Ellison v. Jackson &c., 12 Cal. 554; White v. Carpenter, supra.) Without an express statute there can be no lien upon a building separate from an interest in the land. (Kellogg v. Smith Co., 1 Wash. St., 407; Tracy v. Rogers, 69 Ill. 662; see Weathersby v. Sleeper, 42 Miss. 732; Allen v. Shortridge, 1 Duv. (Ky.), 34; Allen v. Montgomery, 48 Miss. 101; Alexander v. Berry, 54 id., 422.) The lien of the mechanics dates from the commencement of the building, and is preferred to all incumbrances attached to the building subsequent thereto. (R. S., sec. 1523; Meyer v. Constr. Co., 100 U.S. 457; Davis v. Bilsland, 85 U.S. 659; Nielson v. Ry. Co., 44 Ia. 71; Dunklee v. Crane, 103 Mass. 470; Gale v. Blaikie, 126 id., 274; Thielman v. Carr, 75 Ill. 393; Rankin v. Scott, 12 Wheat, 179; Anderson v. Dillaye, 47 N.Y. 678; Ivey v. White, 50 Miss. 142.) When an administrator invests assets of an estate in land, and takes the deed to himself, he may be guilty of devastatit, but may, nevertheless, convey the land free from the claims of distributees. (Richardson v. MacLemore, 60 Miss. 315; McLean v. Ladd, 66 Hun., 341; Carter v. Bank, 17 Me. 448; Woods App., 92 Pa. 379; Smith v. Ayer, 101 U.S. 320; Elliott v. Merryman, 1 W. & T. Lead C., Eq. 72, 106; R. S., sec. 2211.) Parties dealing with real estate may lawfully assume that the title is completely disclosed by the records, unless there is some circumstance of which they are bound to take notice. (Roll v. Rea., 50 N.J.L. 264; Webb on Rec. T., 154; Henry v. Bond, 55 N.W. 647 (Neb.); Phillips v. Clark, 4 Metc. (Ky.), 348.) The heirs have no other or greater rights than anyone else who furnishes money under similar circumstances.

Counsel also contended that no motion for new trial was necessary to raise the error complained of, and cited cases in support thereof.

Melville C. Brown, for defendants in error.

To review the question attempted by the petition in error, which is practically error of law occurring on the trial, the error complained of must have been saved by motion for new trial and bill of exceptions. (R. S., sec. 2649.) Findings by court or jury are to be taken advantage of in the same way. (R. S., secs. 2564-69.) It has been repeatedly held that no error will be considered, not passed upon by the court below and not preserved in a motion for a new trial. (Dolan v. Church, 1 Wyo. 187; Ivinson v. Alsop, id., 251; Com'rs v. Hinton, id., 355; White v. Sisson, id., 395; Johns v. Adams, 2 id., 194; Perkins v. McDowell, id., 328; Rule 13, S. C.) That is also the rule in California. (Hihn v. Pack, 30 Cal. 280; Duff v. Fisher, 15 id., 375; Gaghardo v. Hoherlin, 18 id., 395; Allen v. Fennon, 27 id., 69; Doe v. Vallejaho, 29 id., 386.) The demurrers were passed on more than two years before the institution of proceedings in error, so that the statute of limitations has run as to such rulings. Appellate courts will not reverse on the ground that one finding is inconsistent with the judgment or conclusion of law, because every fact not expressed in the written findings that would sustain the judgment is presumed to have been made by the court, as well as those expressed. (Oakland v. Whipple, 39 Cal. 112; Kusel v. Sharkey, 46 id., 3; Gregory v. Nelson, 41 id., 278; 45 id., 231; 41 id., 683; 38 id., 595; id., 410; id., 522.) Proceedings in probate are "in rem." Notice of administrator's appointment is notice to all the world. The property of the estate is in the custody of the law, or the court, and the administratrix, the officer of the court. (1 Woerner's Adm., sec. 148; State v. R. R. Co., 10 Nev. 47; Gignon v. Astor, 2 How., 319; Day v. Micon, 18 Wall., 156; Dickey v. Vann, 81 Ala. 425.) Judgments in rem bind strangers as well as privies. (State v. R. R. Co., supra; As to lis pendens, see R. S., sec. 2442; 2 Dev. on Deeds, sec. 788.) An administrator has no power to create a lien against an estate, unless especially authorized by the court, under a statute permitting it. (Woerner on Adm., secs. 345, 356; Davis v. Holt, 58 N.H. 467; Gurney v. Maloney, 38 Cal. 85; Page's Est., 57 id., 238; Austin v. Monroe, 47 N.Y. 360; Daley v. Daley, 66 Ala. 266; Schmitler v. Simon, 101 N.Y. 554; Perry v. Cunningham, 40 Ark. 185; Curtis v. Bank, 39 O. St., 579; Kingman v. Soule, 132 Mass. 285; White v. Thompson, 79 Me. 207; Thompson v. Canterbury, 2 McCrary, 332.) All the parties in the court below should be made parties to the proceeding in error. (Wells v. Wells, 16 Am. Dec., 150; Central &c., Co. v. Chicago L. Co., 53 Kan. 677; Davis v. Merc. Co., 152 U.S. 590; Eq. Mut. Co. v. Lowe, 53 Kan. 89; Denegee v. Mushet, 46 La. Ann., 90; Voseman v. Call, 35 N.E. 828.) The papers in this case being certified copies of journal entry, do not purport to be a judgment record. (Douglas v. Dakin, 46 Cal. 49; 41 id., 133; id., 156; 86 Tenn. 14; 15 R.I. 35; 2 Am. St. R., 863.)

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

In this case Paul F. H. Bath and Josephine D. S. Bath, minor heirs, by Charles Kuster, their next friend, brought suit in the district court of Albany County to enjoin Gustav A. Seibel, George Berner and Eli Crumrine from further proceeding to foreclose or enforce certain mechanic's liens claimed by Seibel and Berner, respectively, and two mortgages held by Crumrine upon certain property alleged to belong to the said heirs, and to the end also that said encumbrances be declared void. Restraining orders were issued pending the suit.

Separate demurrers were filed to the petition and overruled, and the rulings severally excepted to. Separate answers were thereafter filed, which were met by replies, and trial was had before the court without the intervention of a jury. The court found the facts specially, and these, with the conclusions of law, were entered upon the journal as part of the judgments or decree. The evidence is not before us. The findings, decision, judgment and decree were severally excepted to by the defendants in the court below. Motions for new trial seem to have been filed, presented and overruled, and time allowed for reducing exceptions to writing. No bill of exceptions is in the record.

The petition alleged that one Frederick Bath died intestate at Laramie City, Wyoming, October 24, 1881, leaving surviving him as sole heirs of his estate his wife, Johanna Bath, and his two infant children, Paul F. H. Bath and Josephine D. S Bath; that on November 2, 1881, the widow was appointed administratrix of said estate, and thereupon duly qualified and entered upon the discharge of the duties thereof; that the estate was duly appraised at $ 11,818.12, and the total indebtedness did not exceed $ 1,600.00, but that the said estate was then worth more than $ 10,000.00 net, one-half of which belonged to the said infant heirs. It is further alleged in the petition that on November 2, 1882, Johanna Bath made a report as administratrix, showing that after the payment of the debts of the estate and all expenses of administration, there remained in her hands $ 3,324.24; that none of the real estate of said estate had been disposed of, and a part only of the personal property had...