Snyder v. Ryan
| Decision Date | 16 October 1928 |
| Docket Number | 1424 |
| Parties | SNYDER v. RYAN [*] |
| Court | Wyoming Supreme Court |
Rehearing Denied March 12, 1929, Reported at: 39 Wyo. 266 at 281.
APPEAL from District Court, Converse County; WILLIAM A. RINER Judge.
Action by Mrs. W. H. Snyder against David Ryan, et al. Judgment for defendants and plaintiff appeals.
Judgment affirmed.
S. E Phelps, for appellant.
The court erred in permitting Lockenour, Smyth and Morgan to file an amended answer upon amendment of the trial; also in refusing to admit in evidence plaintiff's exhibit No. 14, a tax receipt showing taxes to have been paid upon the property involved, assessed to Ryan and paid by Lockenour, said receipt tending to show Ryan's ownership in 1922. Hodgdon v. Shannon, 44 N.H. 572; Ellen v. Ellen, 16 S.C. 132; also in ruling out plaintiff's exhibit No. 16, a tax redemption certificate showing assessment to Ryan in 1921, 10 Ency. Ed. 745. The court erred in receiving the testimony of Omstead as to the financial worth of defendant Dea. Stockmens Loan Company v. Johnson, (Wyo.) 240 P. 449. The court erred in ruling out certain documents relating to other litigation showing Ryan's ownership of Lot 4, Block 13, Wallace v. Jones, 93 Ga. 89. Numbers v. Shelley, 78 Pa. St. 426. The court erred in ruling out assessment schedules relating to the ownership of the property in controversy being plaintiff's exhibit 12; 1383 C. S.; Laws 1923, Chap. 55; Dennett v. Crocker, 8 Me. 239. Mortgages based upon the void deed of Davis W. Ryan, were erroneously received in evidence. Stockmens Loan Co. v. Johnson, supra. Culver v. Graham, 3 Wyo. 211. The court erred in receiving evidence of a larger consideration than that expressed in the conveyances involved. Moore Fraudulent Conveyances, p. 292; Min. Co. v. Manley, 81 P. 50, 27 C. J. 488. Ryan's deed was not delivered as shown by the evidence. Kelley v. Board, 24 Wyo. 386. Mere recording is not evidence of the delivery. Stockmens Loan Co. v. Johnson, supra; 23 R. C. L. 52, 53; Powers v. Rude, (Okla.) 79 P. 89. Smith v. Bank, 32 Vt. 341. Stone v. French, 14 P. 530. McGinn v. Toby, 28 N.W. 818. The evidence of fraudulent intention was clearly shown. Culver v. Graham, 3 Wyo. 211; Ruple v. Tanghenbaugh, (Colo.) 210 P. 72; Lawrence Bros. v. Beylman, 98 N.Y.S. 121; 20 Cyc. 345; Bank v. Loffler, (Kas.) 245 P. 742; Lockenour had evidence of plaintiff's judgment against Ryan before taking title. Knowledge of facts sufficient to put a prudent man on inquiry amounts to notice. Webb v. Ins. Co., 69 N.E. 1006. There was notice of the judgment. Stastny v. Pease, 124 La. 587; Sterling v. Wagner, 4 Wyo. 5; 27 C. J. 547; Moore v. DeBernardi, (Nev.) 220 P. 544; Beattie v. Crewdson, (Cal.) 57 P. 463; Bank v. Swan, 4 Wyo. 5; RR. Co. v. Russell, (Conn.) 78 A. 329; Platte Co. v. Frantz, (Wyo.) 239 P. 531. The building association was not an interested mortgagee even though it parted with value. Oliver v. Company, 72 Or. 46; 142 P. 541, 14a C. J. 2356. Plaintiff was not guilty of laches. An appeal was taken from her judgment which delayed execution. 21 C. J. Equity p. 243. Ansler v. Cavett, (Tex.) 271 S.W. 139; Harney v. Montgomery, (Wyo.) 232 P. 378. The building association admitted the allegations of plaintiff's petition. Smyth, Morgan and Lockenour did not plead an innocent purchase but tried to show that they had paid value. None of the defendants undertook to sustain the pretended transfers between Ryan as grantor, and Smith and Morgan as grantees. The judgment is contrary to law and not sustained by sufficient evidence.
John D. Dawson and C. Leonard Smith, for respondents.
The allowance of amendments to pleadings is largely within the discretion of the court. 5707 C. S., 31 Cyc.; Bissinger & Co. v. Weiss, 27 Wyo. 268. Notarial certificates are received as presumptive evidence of facts therein; 4508 C. S. Clear and convincing proof is necessary to establish fraud. McFadden v. French, 29 Wyo. 401; Kahn v. Traders Co., 4 Wyo. 419; Bank v. Ford, 30 Wyo. 110; Patterson v. Lee, 7 Wyo. 401; 18 C. J. 443, 449; deeds of real estate are presumptive evidence of change of possession, 22 C. J. 125. There is a distinction as to the effect of a failure to change possession of reality, from that recognized in transfers of personality. Wait Fr. Con. 368-369, 27 C. J. 483. Public records are defined by Section 4587 C. S. Plaintiff's exhibits are not public records. Duplicate tax receipts offered in evidence were not competent; plaintiff's action is barred by the statute of limitations. 27 C. J. 764; Bank v. Frantz, (Wyo.) 229 P. 531; 27 C. J. 764; Harney v. Montgomery, 29 Wyo. 377; 5569 C. S. Wright v. Scotton, (Del.) 121 A. 69; 21 C. J. 231; 10 R. C. L. 395; Smith v. Stone, 21 Wyo. 95.
S. C. Phelps, in reply.
The amendment of defendant's answer set up new defense which is not permissible, 5707 C. S. Lellman v. Mills, 15 Wyo. 149. The Statute of Limitation did not run until discovery of fraud; nor until judgment was obtained. Mickle v. Walraven, 92 Ia. 423; Stubblefield v. Gadd, 112 Ia. 681, 84 N.W. 917; Donaldson v. Jacobitz, 67 Kas. 244, 72 P. 846; Bank v. King, 60 Kas. 735, 57 P. 952. The record of the Ryan deed was not evidence of the fraud itself. Stevens v. Summers, 68 O. S. 421; Culver v. Graham, 3 Wyo. 689; Allith Co. v. Wallace, 32 Wyo. 392; Fein v. Fein, 3 Wyo. 161; Clark v. Judge, (Mich.) 28 N.W. 894. Laches cannot be urged except by Ryan and Dea who have not raised it. Harney v. Montgomery, 29 Wyo. 362. Loan Co. v. Johnson, 33 Wyo. 457. The notarial certificate was impeached by the evidence of Mrs. Ford. The deed from Ryan to Mrs. Ford was a forgery, 7284 C. S., and established fraud; Henderson v. State, 14 Tex. 503; People v. Baender, (Cal.) 228 P. 536. The burden of proof rests upon the party claiming under the deed, 18 C. J. 417; Kelley v. Board, 24 Wyo. 386; Ryan did not intend to pass title; McFadden v. French, 29 Wyo. 401. He did not surrender possession, 18 C. J. 208; Stone v. French, (Kan.) 14 P. 530. Where a deed is found in possession of grantor after execution the presumption arises that it was never delivered, 18 C. J. 495; David v. Whitehead, 13 Wyo. 189. There was no evidence to refute appellant's allegations and proof of Ryan's fraud and the allegation of fraud on Ryan's part were proven fully and completely. The court is therefore obliged to accept plaintiff's evidence as true. Carter Oil Co. v. P.-Wyo. Oil Co., 263 P. 960. Lockenour stands as a participant in the fraud and is not entitled to protection; Platte Co. v. Frantz, 33 Wyo. 326; Adams Oil and Gas Co. v. Hudson, (Okla.) 155 P. 220. Until there is proof that purchaser paid a valuable consideration there is no presumption of good faith. Dody v. Bitner, 82 Kas. 551, 108 P. 858. Smith purchased with notice and knowledge of the existence of plaintiff's lien, also the Building Association; neither are entitled to protection; Oates v. Monday, 127 N.C. 439; Seaman v. Canal Ass'n., 29 Wyo. 391. Defense of innocent purchaser must be alleged and proved as any other affirmative defense; Loan Co. v. Johnson, supra; Bank v. Ford, supra; Ins. Co. v. Summers, 19 Wyo. 452. There was no conflict of evidence as to the fraud of Ryan, O'Neil, and Ford established by plaintiff's evidence nor as to their knowledge, good faith or consideration. Morgan, Lockenour and Smyth were proven to have had notice and knowledge. The building association was bound by the admission of its answer. The deeds from Ryan to O'Neil, Ryan to Ford, Ford to O'Neil were forgeries and were never delivered. The judgment below is manifestly erroneous and should not go uncorrected. Weaver v. Richardson, 21 Wyo. 343; Kester v. Wagner, 22 Wyo. 512; Anderson v. Englehart, 18 Wyo. 409.
This is an action brought by the plaintiff Snyder as against the other parties defendant to declare a number of conveyances to be fraudulent, and to have the real estate covered thereby subjected to the judgment of the plaintiff. It appears that in May, 1918, the plaintiff was injured in an automobile accident caused by the defendants Ryan and Dea, and on October 27, 1920, she recovered judgment in the District Court of Converse County against the defendants Ryan and Dea in the sum of Fifteen Hundred Dollars.
The principal object of this litigation is to impress the Morgan property, consisting of Lot 6, Block 20, in the Town of Glenrock, and the Smyth property consisting of Lot 4, Block 13, in the Town of Glenrock with a lien subject to this judgment secured by Mrs. Snyder. Lot 6, Block 34, and Lot 23 Block 37, of Higgins subdivision of the Town of Glenrock are also mentioned in the petition. The title of the former seems to still stand in the name of Jerry O'Neil, but this appeal does not affect him, default having been taken against him. The defendant Lockenour appears to be the owner of Lot 23, Block 38, according to the record of title, and whether this property is of any value or not is not shown. The real controversy is over the Smyth and Morgan properties. The defendant Ryan became the owner of all these properties prior to May 20, 1918, but in August, 1918, after the automobile accident and prior to the filing of the damage suit, he conveyed Lot 4, Block 13, to Jerry O'Neill for a consideration of two thousand dollars, and in March, 1919, he sold the remainder of the property to a Mrs. Ford for the purported consideration of one dollar and other valuable consideration, and on the same day Mrs. Ford conveyed this property to the defendant O'Neill, so that on March 11, 1919, all the property in controversy stood in the name of O'Neill. On February 16, 1923, the defendant Lockenour became the grantee of this property with the exception of...
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