State Bank of Wheatland v. Bagley Bros.

• Decision Date: 09 August 1932
• Docket Number: 1708
• Citation: 44 Wyo. 456,13 P.2d 564
• Parties: STATE BANK OF WHEATLAND v. BAGLEY BROS., ET AL
• Court: Wyoming Supreme Court

13 P.2d 564

44 Wyo. 456

STATE BANK OF WHEATLAND v. BAGLEY BROS., ET AL

No. 1708

Supreme Court of Wyoming

August 9, 1932

APPEAL from the District Court, Platte County; SAM M. THOMPSON Judge.

On petition for rehearing.

Petition for rehearing denied.

In support of the petition there was a brief by Mr. M. A. Kline of Cheyenne, Wyoming, and Mr. O. O. Natwick, of Wheatland Wyoming.

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

OPINION

RINER, Justice.

A petition for rehearing has been filed in the cause by respondent, presenting the contention that this court was mistaken in its conclusion announced in the opinion heretofore filed herein that the lien of the mortgage unsigned by Mrs. Mamie E. Bagley and held by respondent could not be enforced against the claim of homestead made by her in the Wheatland town property. Several propositions are advanced in support of this contention.

It is said now as it was urged in respondent's brief before that no issue was made in the pleadings touching the claim of homestead right on the part of Mamie E. Bagley and it is also said that the view previously announced herein as declared by the well known text, 29 C. J. 880, § 245, that "evidence of the homestead right is admissible under the general denial" is unsupported by authority.

The text last mentioned cites the case of Crawford v. Richeson, 101 Ill. 351. There the court said concerning the point in which we are now interested:

"It is objected to considering the homestead right in this case that it is not set up in the answer, and that so there is no averment in the pleadings to afford a foundation for admitting evidence of a homestead right. The bill avers that the bond was a lien upon the lands. The answers deny that the bond ever was a lien upon the lands. Under the issue formed upon this averment and denial, the evidence of a homestead right was competent. It went to show that the bond never was a lien upon the lands, --that they were exempt from the lien so that it never attached to them, and we think the evidence was admissible in disproof of the lien having ever attached, under the general denial that it ever attached, without the answer having set forth specifically the facts showing why the bond never did become a lien." This holding certainly upholds the statement of the text aforesaid. Respondent's position is, however, that this case has been overruled by subsequent decisions of the Supreme Court of Illinois, viz: Gaither v. Wilson, 164 Ill. 544, 46 N.E. 58; First National Bank v. Vest, 187 Ill. 389, 58 N.E. 229; and Lofquist v. Errickson, 152 Ill. 456, 38 N.E. 908. We do not so read them. They neither refer to the Crawford case, supra, nor was it necessary that they should, inasmuch as the question raised in their several pleadings was a different one. Neither of them undertook to determine what evidence was admissible under a general denial of a lien claimed under an instrument whose validity was attacked. In the Gaither case, the only one involving the foreclosure of a lien, there was simply an attempt to set up an affirmative claim to a homestead right in a cross-bill, and affirmative relief was asked by the defendant that "his homestead interest in said lot be established." The sufficiency of this cross-bill was the question ruled and it was held to be insufficient. The other two cases were suits to set aside conveyances made by judgment creditors as fraudulent and in neither of them was any question involved under pleadings such as are presented here.

Our attention is directed to the case of Caudle v. Morris, 160 N.C. 168, 76 S.E. 17. That was an action to recover possession of land from defendant and no question arose in it on pleadings even remotely resembling those at bar. Nevertheless, previously in the case of Cawfield v. Owens, 130 N.C. 641, 41 S.E. 891, where the validity of a deed was directly questioned by the interposition of a general denial in the answer, the North Carolina court had this to say:

"Was it necessary for the defendant in her answer to have specially pleaded her claim in the land as her homestead interest? If so, the evidence offered and received was irrelevant and incompetent. The rule under the code pleading (similar to that under the old proceedings in ejectment) permits under the general issue-general denial-proof that a deed introduced as evidence of title was executed by a grantor wanting in capacity, and therefore, for that reason, void. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. But the plaintiff insists that there is a recognized exception to the general rule, and that the exception is that one who seeks to avoid a deed upon the ground that the land is subject to the homestead right of the pleader must specially set up in the pleadings the facts upon which the homestead depends. The authorities relied on for the position are Marshburn v. Lashlie, 122 N.C. 237, 29 S.E. 371, and the kindred cases in our Reports, there mentioned. But it will be seen on examination of all these cases that the deeds introduced to show title were deeds made under either judicial or execution sales. In such cases, the purchasers at such sales or their grantees have what is called a prima facie title under their deeds; there being a presumption that the sale was properly ordered and made, and that the land was not subject to the homestead right; that it was sold for a debt which did not exempt it from sale under Section 2 of Article 10 of the constitution and the decisions of this court on that section. In our case, however, no such presumption existed, the deed under which the plaintiff claims being one from a mortgagee made in default of the payment of the debt secured in the deed, voluntarily made by the defendant's husband to secure an ordinary debt due in 1888, and it was permissible to offer proof to avoid the plaintiff's deed, under the general rule, under the general denial in the defendant's answer." The case of Marshburn v. Lashlie, 122 N.C. 237, 29 S.E. 371, which the court distinguishes in the excerpt just given is cited and relied upon by respondent here.

Some decisions from the courts of the state of Texas are noticed for our attention as supporting respondent's position but an examination of them and others from the same jurisdiction leads us to think otherwise. For instance, in Tyler v. Thomas, 297 S.W. 609, 611, the court said:

"In the present case the plaintiffs sued for title and possession of the property. The defendant denied the right of plaintiff to recover possession, but made no prayer for affirmative relief. In such case it has been uniformly held that any matter of defense, except limitation, may be proven under plea, of 'not guilty.' Lumkins v. Coates, (Tex. Civ. App.) 42 S.W. 580; Miller v. Knowles, (Tex. Civ. App.) 44 S.W. 927; Taffinder v. Merrell, 18 Tex. Civ. App. 661, 45 S.W. 477; Hardy v. Brown, (Tex. Civ. App.) 46 S.W. 385; Wilkin v. Owens, 102 Tex. 197, 114 S.W. 104, 115 S.W. 1174, 117 S.W. 425, 132 Am. St. Rep. 867; Kauffman v. Brown, 83 Tex. 41, 18 S.W. 425; Ryan v. Lofton, (Tex. Civ. App.) 190 S.W. 752.

"We therefore overrule appellant's contention that appellee Thomas could not prove, under his plea of 'not guilty,' his homestead rights in the property in controversy." This was said under a statute which allowed "any lawful defense to the action except the defense of limitation" in case of a plea of "not guilty." This holding was subsequently affirmed in Thomas v. Tyler, 6 S.W.2d 350, by the Commission of Appeals.

In Mutual Life Insurance Co. v. Summers, 19 Wyo. 441, 120 P. 185, 188, this court, quoting from Pomeroy's Code Remedies at Sec. 691, said:

"The general denial puts in issue all the averments of the complaint or petition and permits the defendants to prove any and all facts which tend to negative them."

Presenting a question analogous to that before us, where the enforcement of a mechanic's lien was sought and, under a general denial, evidence of defendant's homestead right was given for the purpose of defeating it, holding this procedure proper, in Security Mortgage & Trust Co. v. Caruthers, 11 Tex. Civ. App. 430, 32 S.W. 837, 841, the court said:

"The proposition propounded under this assignment is: 'A mechanic's lien cannot be fixed upon the business homestead of the head of a family, unless through a contract signed by the husband and wife, and duly acknowledged.' There was evidence tending to show that the lot had been the business homestead of Cowan, and that it was his intention to continue to so use it at the time the building contract was made; while the contract under which the lien is claimed is signed by the husband alone. This defense was not specially pleaded, and the court refused to charge upon that issue. The proposition contended for by appellant is sound, but appellees urge that this defense was not available to the defendant under the general denial pleaded. The main central fact alleged by the plaintiff is that he holds a mechanic's lien upon the building and lot in question, the foreclosure of which is sought to be obtained. No personal judgment for the debt is asked; the single object of the proceeding is the establishment and foreclosure of his lien. A general denial puts in issue every material fact alleged in the plaintiff's petition. Altgelt v. Emilienburg, 64 Tex. 150; Tisdale v. Mitchell, 12 Tex. 68; Herndon v. Ennis, 18 Tex. 410. 'We have abolished all common-law forms of action, and, under our system, the plaintiff states the very case upon which he seeks to recover; and a general denial puts him upon proof of at least every affirmative allegation necessary to maintain his suit, unless it be some allegation that, by the rules of pleading, must be met by a plea in abatement. * * * ...