State ex rel. Sands v. District Court of Eighth Judicial Dist.

• Decision Date: 27 November 1933
• Docket Number: 7205.
• Citation: 26 P.2d 970,95 Mont. 427
• Parties: STATE ex rel. SANDS et al. v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. et al.
• Court: Montana Supreme Court

26 P.2d 970

95 Mont. 427

STATE ex rel. SANDS et al. v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. et al.

No. 7205.

Supreme Court of Montana

November 27, 1933

Rehearing Denied Dec. 5, 1933.

Original proceeding by the State, on the relation of W. B. Sands and others, against the District Court of the Eighth Judicial District, W. H. Meigs, Judge thereof, and others, for writ of prohibition.

Application denied and proceeding dismissed.

Freeman Thelen & Freeman and Ernest Abel, all of Great Falls, for respondents.

ANGSTMAN Justice.

John Thomson brought an action in the district court of Chouteau county against Julius Nygaard, alleging in the complaint that since April 5, 1932, he had been in the possession of certain coal mining property on lots 2 and 3 of section 18, township 28 North, range 14 East, situated in Chouteau county; that he was in possession by virtue of a lease for the term ending April 1, 1935, executed by Louis Genereaux, the then owner of the land, a copy of which was attached to the complaint; that on September 19, 1932 Nygaard wrongfully entered upon the property, took possession thereof, and excluded Thomson therefrom. The complaint sets out the damages resulting to Thomson as the result of the acts of Nygaard, and asks judgment therefor. It also asks for an injunction preventing Nygaard, his agents, and employees from interfering with the rights of Thomson and that Nygaard be ousted from the premises.

Nygaard filed an answer to the complaint in which he admits that he took possession of the property and commenced operating it on September 19, 1932. He sets forth that on September 16, 1932 Nygaard in the presence of Thomson entered into a contract with Walter B. Sands for the purchase of the premises with the distinct understanding that Nygaard was to have immediate possession and that all previous leases were rescinded and of no further effect; that on September 18 Sands placed Nygaard in possession in the presence of, and without protest by, Thomson; he denies that Thomson has been damaged by the entry of Nygaard on the premises. The answer further alleges that Genereaux had purchased the property described in the complaint from Sands under a contract whereby Genereaux was to have possession until in default in his payments, all of which Thomson knew; that when Nygaard purchased the property from Sands, Genereaux was in default to the knowledge of Thomson; that therefore Thomson is estopped from claiming any interest in the property.

The reply of Thomson may be treated as a general denial, except that it avers that Nygaard, when he purchased the property from Sands, knew that Thomson claimed an interest therein and that Nygaard's rights were subject to his lease.

H. G Lescher, as trustee, thereafter petitioned the court for, and was granted, leave to intervene in the action and to have Sands, Dan Sargent, and Henry Wedeking brought into the action as additional parties. In his petition he alleged that he is the owner and entitled to the possession of lots 2 and 3, "together with other property formerly owned by the Mackton Coal Company." It was also averred that Sands, Dan Sargent, lessee from Sands, and Henry Wedeking should be made parties in order "to establish and determine the title of all of said Mackton Coal Company in petitioner in this action." Pursuant to such leave, Lescher, trustee, filed his complaint in intervention in which he alleged that since March 21, 1928, he has been sole owner and entitled to the possession of lots 2, 3, and 4, the east half of the southwest quarter, and the north half of the northeast quarter of section 18, township 28 North, range 14 East, together with tenements, hereditaments, and appurtenances; that title came to him as the result of the foreclosure of a mortgage or trust deed executed by the Mackton Coal Company in 1916 and duly recorded in Chouteau county, to secure an indebtedness of $100,000, payable in January, 1921; that in an action instituted in the United States District Court on May 26, 1926, wherein Northwestern Trust Company was plaintiff, and Mackton Coal Company and W. R. Hensen and others were defendants, an order of foreclosure sale was entered, and sale of the property was had, resulting in a deed by the United States marshal to intervener; that lis pendens in that action was filed May 26, 1926. Deed was obtained on March 21, 1928. It is alleged that Sands had knowledge of the pendency of that action and appeared therein by motion to set aside the judgment and to annul the sale. It is further alleged that Hensen, after the commencement of that action and the filing of the lis pendens, obtained a judgment against Mackton Coal Company, caused execution to be issued, and thereafter sold all the described property and obtained a sheriff's certificate of sale, which was later assigned to Ira S. Harbolt and by him thereafter assigned to Sands, who obtained a sheriff's deed on March 23, 1928; that Sands has since that time wrongfully claimed and assumed ownership of the property; that as pretended owner he has authorized Thomson, Nygaard, Dan Sargent, and Henry Wedeking to operate the mining property without right; that both Thomson and Nygaard claim rights through the alleged ownership of Sands; that to prevent a multiplicity of suits intervener has no plain, speedy, or adequate remedy otherwise than to intervene and assert his claim against Thomson and Nygaard, and against Sands, Sargent, and Wedeking. The complaint in intervention also asked that Sands be required to account to intervener for all rents and profits received by him from sales and leases of the property and that intervener have judgment therefor against Sands. To the complaint in intervention Sands filed a separate answer in which he denied that inte...