Stryker v. Rasch

Decision Date22 April 1941
Docket Number2193
Citation57 Wyo. 34,112 P.2d 570
PartiesSTRYKER v. RASCH
CourtWyoming Supreme Court

Rehearing denied June 11, 1941, Reported at: 57 Wyo. 34 at 52.

ERROR to the District Court, Big Horn County; P. W. METZ, Judge.

Action by Frank Rasch against L. V. Stryker to quiet title to realty, wherein the defendant filed a cross-petition. To review an adverse judgment, the defendant brings error. Rehearing denied--see 113 P.2d 963.

Affirmed.

For the plaintiff in error, there was a brief and an oral argument by L. A. Bowman of Lovell.

It is the contention of the plaintiff in error that a claim of adverse possession cannot be asserted as against a mortgagee holding a duly recorded, existing and unpaid promissory note and mortgage. Sec. 89-406, R. S. relates to actions for the recovery of the title or possession of lands, and prescribes a limitation period of ten years after the cause of action accrues. Statutes of Limitations relating to adverse possession run only against persons in a position to protect their title or right to possession by action, and the holder of a mortgage has neither title nor right to possession. Slane v. Polar Oil Company (Wyo.) 41 P.2d 490; Bolln v. La Prele Live Stock Company, 27 Wyo. 335; Balch v. Arnold (Wyo.) 59 P. 434; Kerr v Lydecker, 51 Ohio State 240. The case last cited from Ohio construed a statute afterwards adopted in Wyoming and appearing in our revision of 1931 as Section 89-406. The Ohio Supreme Court expressly held that an action for the foreclosure of a mortgage and sale of mortgaged premises is not an action for the recovery of the title or possession of real property, and the limitation provided for in Section 4977, Ohio Revised Statutes, does not apply thereto. To the same effect is the case of Moses v. Major (N. C.) 160 S.E. 890. We submit that the decision of the trial court should be reversed and judgment entered for the foreclosure of the real estate mortgage of the plaintiff in error.

For the defendant in error, there was a brief and an oral argument by Kent M. Crosby of Basin.

Defendant in error contends that by his adverse possession of the premises, he acquired a new and indefeasible title, good against the former owner of the real title and all persons claiming thereunder. We believe the law on this proposition is clearly set forth in 2 C. J. C. 804, Article 200. No issue of adverse possession was involved in the case of Balch v. Arnold, 9 Wyo. 17. The action was by a junior mortgagee against a senior mortgagee to secure a preferential lien on behalf of the junior mortgagee. The question here in controversy was reviewed with great clearness in the case of Cady v. Purser (Calif.) 63 P. 844. Plaintiff in error argues that since he is only a lienholder, he had no right to eject defendant in error, and therefore Section 89-406, R. S. 1931 does not apply in the present case. This point is fully answered in the Virginia case of Hollingsworth v. Sherman, 81 Va. 668. 2 A. L. R. 41. Plaintiff would gain nothing by a foreclosure of his mortgage since the mortgagor has lost his title. Kershaw v Thompson, 4 Johns. Ch. 609, 616; Le Roy v. Rogers, 30 Cal. 229, 89 Amer. Dec. 88; McClanahan's Adm'r. v. Norfolk & W. Ry. Co., 96 S.E. 456.

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

OPINION

BLUME, Justice.

This is an action brought by plaintiff Frank Rasch against L. V. Stryker, defendant, to quiet title to a piece of ground in the town of Lovell, described as the south half of Lot One of Block 9 in that town. Plaintiff took possession of the premises pursuant to contract with one Robertson who had purchased the lot from Big Horn County. He is not, accordingly, in privity with the mortgagor herein mentioned. He pleaded that he entered upon the premises on April 28, 1928, and has ever since been in actual, open, notorious, continuous, hostile and exclusive possession thereof against the world; that defendant Stryker claims an interest therein, which is, however, without foundation, and should be held to be barred. Plaintiff's evidence showed that he had been in such adverse possession for twelve years prior to the commencement of this action, and that fact is not disputed by the defendant Stryker. The latter, however, filed a cross petition in the case, setting forth that one Kelsy, then owner of the premises, on November 30, 1921, executed to him a note for $ 700 and a mortgage on the premises to secure it, and he asked that the mortgage be foreclosed, and held to be prior in right to that of the plaintiff. By his reply the plaintiff alleged that he did not know anything about this mortgage, but that if it exists, it is of no avail against the title of the plaintiff. It was stipulated by the parties, and by Kelsy, who was also a party to the action, that the note in question "is an unpaid promissory note, the amount due thereon being as specified in the cross petition, and that the mortgage described in the cross petition is a duly recorded mortgage, and has never been released or satisfied." The court entered judgment for plaintiff, from which the defendant Stryker has appealed. The parties will be referred to herein as in the court below.

The statutes which have a bearing in this case are Section 89-406, Rev. St. 1931, which provides that "an action for the recovery of the title or possession of lands, tenements or hereditaments, can only be brought within ten years after the cause of action accrues," and Sections 89-408, -409, which provide that an action on any contract in writing is barred within ten years after the cause of action accrues.

1. Plaintiff claims that his title by adverse possession is good against the world, in all cases, including a mortgagee, while the defendant claims that no adverse possession can avail against a mortgagee, while the mortgage exists, for the reason that, until such mortgage is foreclosed, the mortgagee has no right to bring an action for the recovery of the real property, and he calls attention to the fact that an action of foreclosure is not such action (Balch v. Arnold, 9 Wyo. 17, 59 P. 434). Contrary to expectation, the law on the subject of adverse possession against a mortgagee or a lien holder is not at all clear. The case is one of first impression in this jurisdiction, and in order to arrive at a proper conclusion, we have deemed it best to consider the various situations which may arise. We have found no adequate treatment of the subject anywhere, and we have, accordingly, found it necessary to make our search of the authorities as complete as possible. The record fails to disclose when the indebtedness secured by the mortgage in question was due, so that we must assume herein that it was due at once, as held in some of the cases, or at least within a reasonable time thereafter (37 C. J. 817-818), and at least during the year 1922.

Plaintiff in this case relies upon the rule stated in 2 C. J. S. 804, that "liens against the true owner which are dependent on his title are destroyed by possession for the statutory period adverse to the true owner since the title acquired by adverse possession is not a derivative but an independent paramount title." Much of what is said by the majority in McClanahan's Adm'r. v. Norfolk and Western Ry. Co., 122 Va. 705, 96 S.E. 453, sustains the sweeping view here expressed, under a statute somewhat broader than ours. But the court actually and expressly limited the decision, holding that if adverse possession is taken prior to the creation of the lien, then the lienholder acquires his right subject to the rights of the adverse possessor, and the adverse possession is completed within the statutory time. One justice dissented; another agreed with the majority that adverse possession taken before the acquisition of the lien runs against the latter, but specifically held the contrary in case the lien is acquired prior to the time when adverse possession is taken, holding that in such case the lienholder cannot be prevented from enforcing his lien within the time given by statute. The decision, limited by the majority as above mentioned, is sustained by Schafer v. Hauser, 111 Mich. 622, 70 N.W. 136, 37 L. R. A. 835. In that case adverse possession of the land was taken in 1870. The mortgage there in question was executed by the owner in 1873. It was held that the mortgagee had no greater right to oust the adverse possessor than the owner of the land, stating in part that "we cannot subscribe to the contention that a mortgagee can assert a right against one in possession of land holding adversely that could not be asserted by the mortgagor if the mortgage had not been made. To do so would be to hold that the owner of the legal title could at any time suspend the running of the statute of limitations by simply executing a mortgage payable at some time in the future." The holding in LeRoy v. Rogers, 30 Cal. 229, 89 Am. Dec. 88, was similar. It is probable that the adverse possession in that case commenced before the mortgage there in question, although that does not appear expressly, and it may be that the court meant to hold that a mortgagee has in no case a greater right than the original owner. If so, it probably would not be consistent with later cases in California. In Virginia & West Virginia Coal Co. v. Charles, 254 F. 379, the court, in accordance with Federal rules, followed McClanahan's Adm'r. v. Ry. Co., supra. The holding of these cases, limited as above mentioned, cannot be said to be illogical, at least in case of a mortgage, since a mortgagee should take notice of the rights of the person who is in possession of the premises at the time when he takes his mortgage. Jones on Mortgages (8th ed.) Sec. 718; Perry v. Markle, 127 Neb. 29, 254 N.W. 692. It is not, however, necessary to...

To continue reading

Request your trial
17 cases
  • National Tailoring Co. v. Scott, 2392
    • United States
    • United States State Supreme Court of Wyoming
    • August 3, 1948
    ...possession as the rights of one who forecloses by action, in order that all statutes may be construed reasonably and in harmony. Stryker v. Rasch, 57 Wyo. 34. 122 Sec. 1 of Laws of 1945 contains unmistakable evidence that the Legislature intended the limitation thereby incorporated into the......
  • Meyer v. Ellis, 3439
    • United States
    • United States State Supreme Court of Wyoming
    • March 1, 1966
    ...against the world, including the predecessors of the defendants. Bentley v. Jenne, 33 Wyo. 1, 236 P. 509, 512; Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 573, 576, 136 A.L.R. 770, rehearing denied 113 P.2d 963. 'Tacking' could not aid or detract from that title and such title could be dive......
  • Boller v. Western Law Associates, P.C., 90-84
    • United States
    • United States State Supreme Court of Wyoming
    • April 3, 1992
    ...of limitations no longer is a party in this case. The others have failed to accommodate to the standard found in Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 136 A.L.R. 770, reh'g denied, 113 P.2d 963 (1941), that the statute of limitations is an affirmative defense that must be presented in......
  • Bauer v. State ex rel. Wyoming Worker's Compensation Div., 84-77
    • United States
    • United States State Supreme Court of Wyoming
    • March 1, 1985
    ...is personal, a waiver, in this instance, can only be by the Town of Saratoga or someone empowered to act for it. Stryker v. Rasch, 57 Wyo. 34, 112 P.2d 570, 136 A.L.R. 770, reh. denied 113 P.2d 963 (1941). The power to act for a municipality in most respects is statutorily given to the gove......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT