Thomson v. Nygaard

• Decision Date: 04 January 1935
• Docket Number: 7290.
• Citation: 41 P.2d 1,98 Mont. 529
• Parties: THOMSON v. NYGAARD. LESCHER v. SANDS et al.
• Court: Montana Supreme Court

41 P.2d 1

98 Mont. 529

THOMSON v. NYGAARD.

LESCHER v. SANDS et al.

No. 7290.

Supreme Court of Montana

January 4, 1935

Rehearing Denied Feb. 21, 1935.

Appeal from District Court, Chouteau County; W. H. Meigs, Judge.

Action by John Thomson against Julius Nygaard in which H. G Lescher, trustee, intervened, and W. B. Sands and others were made parties defendant on intervener's petition. From a judgment for intervener, plaintiff and defendants appeal.

Affirmed in part, and modified in part.

W. B Sands, of Chinook, and Towner & Lewis, of Fort Benton, for appellants.

Freeman Thelen & Freeman and Ernest Abel, all of Great Falls, and Miller & Wiley, of Fort Benton, for respondent.

PER CURIAM.

Thomson brought this action against Nygaard to recover possession of certain coal mining property situated in Chouteau county. H G. Lescher, trustee, hereinafter called intervener, upon leave of court filed a complaint in intervention, claiming to be the owner of the same property as well as additional lands. On his petition and upon order of court, W. B. Sands, Henry Wedeking, and Dan Sargent were made parties defendant. Wedeking filed a disclaimer of any interest in any of the property. Sargent, Nygaard, and Sands each separately filed an answer to the complaint in intervention, setting forth their respective interests in the property or parts of it. We need not here set forth their respective claims. It is sufficient to say that plaintiff Thomson, and defendants Nygaard, Sands, and Sargent, all claim through W. R. Hensen. Hensen, it appears, commenced an action against Mackton Coal Company on February 27, 1925, on a contract debt; on May 1, 1925, he obtained judgment. Execution was issued and levied upon all the property described in the complaint in intervention. The property was sold on August 15, 1925, to W. R. Hensen by the sheriff of Chouteau county, who obtained a sheriff's certificate of sale. In 1927, Hensen sold to Ira S. Harbolt, and made an assignment of the sheriff's certificate of sale. Harbolt in the same year assigned to Sands, who obtained a sheriff's deed on March 28, 1928. Thomson and the defendants above named, except Wedeking, claim through or under Sands. Intervener claims title by virtue of being the purchaser at a mortgage foreclosure sale in an action brought by the mortgagee against the Mackton Coal Company in the federal court, resulting in a deed to him from the United States marshal. The action became one to quiet title. It was tried to the court sitting without a jury. At the trial, by agreement, the intervener first put in his evidence, consisting almost wholly of documentary evidence. Defendants thereupon moved to dismiss the complaint in intervention. The motion was denied. Defendants did not offer any evidence. Judgment went in favor of intervener, and defendants and Thomson have appealed.

Defendants contend that the complaint in intervention does not state facts sufficient to constitute a cause of action. The question was raised by objection to the introduction of evidence. The first attack upon the complaint is that the allegations with respect to the ownership of the property are insufficient. The pleading on this point alleges: "That the plaintiff intervener is now and since March 21, 1928, has been, the sole owner in fee simple and entitled to the possession during all such time of the following described property, formerly owned by the Mackton Coal Company, a corporation [here follows a description of the property], which said property came into plaintiff's ownership by reason of an action to foreclose and sale in the United States court, district of Montana, the chain of title to said property to plaintiff being fully set forth in detail and described in a certain deed, a copy of which is annexed hereto, marked Exhibit A and made a part of this complaint."

Defendants contend that the exhibit attached to the complaint in intervention does not allege all the details necessary to support plaintiff's claim of ownership, and for that reason the complaint is insufficient.

In a suit to quiet title, like an action in ejectment, "the plaintiff is not required to deraign his title in his complaint. Under the allegation of ownership, he may prove such title as he has from whatever source he may have acquired it, and by any species of conveyance which is recognized by law." Consolidated Gold & S. Mining Co. v. Struthers, 41 Mont. 565, 111 P. 152, 157, McKay v. McDougal, 19 Mont. 488, 48 P. 988, and Le Vasseur v. Roullman, 93 Mont. 552, 20 P.2d 250. Hence, had plaintiff in intervention stopped when he had alleged his ownership of the described property, the allegation of ownership would have been sufficient.

The mischief arising here is the further allegation undertaking to show the source of his title. But we think intervener's allegations with respect to the source of his title did not entail the consequences contended for by defendants. The unnecessary allegations simply advised defendants of the theory upon which plaintiff claimed ownership. Of course, had the exhibit shown anything in conflict with the general allegations of ownership, the specific allegation as to the source of plaintiff's title would control over the general allegation. Compare Zosel v. Kohrs, 72 Mont. 564, 234 P. 1089.

The rule deducible from the authorities is well stated by the Supreme Court of California, in Martin v. Hall, 219 Cal. 334, 26 P.2d 288, 289, as follows: "It is the law that where a party undertakes to plead his title specially, as well as generally, the special allegations may be treated as surplusage if insufficient or incomplete. Smart v. Peek, supra [213 Cal. 452, 2 P.2d 380]. But where the special allegations affirmatively reveal the weakness of his title, their effect is to nullify the general allegations." (Citing cases.) To the same effect is State v. Rolio, 71 Utah, 91, 262 P. 987.

So the question resolves itself into this: Does the exhibit referred to in the complaint show affirmatively that intervener has no title to the property? Otherwise stated, Does the special allegation with reference to intervener's source of title nullify the general allegation of ownership in him, because of an affirmative showing of no title in intervener? The exhibit referred to, being the deed from the United States marshal, recites that the Mackton Coal Company executed and delivered a mortgage and deed of trust, on January 3, 1916, to the Stanton Trust & Savings Bank, covering the property involved here, to secure bondholders holding bonds in the principal sum of $100,000, all payable January 3, 1921; that the Stanton Trust & Savings Bank resigned as trustee before the sale of any of the bonds, and that the Northwestern Trust Company of St. Paul, Minn., became its successor by order of court upon petition made; that upon default in the payment of the bonds, the Northwestern Trust Company brought action in the United States District Court in the Montana district against the Mackton Coal Company, W. R. Hensen, and others, for the foreclosure and enforcement of the deed of trust; that on December 8, 1927, a decree was made in the cause declaring that the deed of trust was a valid conveyance of the described property for the security of the bonds, and that the bonds were duly issued. It further recites that the decree provided for a sale of the property covered by the deed of trust, after due notice given; that unless the bonds were paid before confirmation of the sale, the marshal was authorized to execute a deed to the purchaser barring and foreclosing defendants since the commencement of the suit, of all equities and rights of redemption. The deed recites that, whereas the Mackton Coal Company made default in the payments required by the decree made in the cause on December 8, 1927, the deputy United States marshal for the state of Montana, after giving notice thereof, sold the property on February 25, 1928, at public auction to H. G. Lescher, trustee for and in behalf of himself and his associates, to the highest bidder; that report of the sale was made to the court and by it confirmed on November 21, 1928, after giving due notice. It recites that to carry into effect the sale made pursuant to the decree, the property (describing it) was granted, bargained, sold, and conveyed to H. G. Lescher, trustee.

Bearing in mind that there is a presumption in favor of jurisdiction and other requisites to the validity of judgments in courts of record (Thelen v. Vogel, 86 Mont. 33, 281 P. 753), we think it was not incumbent upon plaintiff to do more than he did in alleging the source of his title. The special allegations showing the source of his title do not destroy the general allegation of ownership in him.

Defendants contend that, having chosen to show the source of his title, it was incumbent upon intervener to allege every step in the federal court proceedings. As stated above, our only inquiry is whether the specific averments of source of title are inconsistent with the general allegation of ownership.

It is contended that there is no sufficient allegation in the complaint that intervener's predecessor had any interest in the property. From the quoted portion of the complaint above, there appears the allegation, perhaps in the way of a recital, "formerly owned by the Mackton Coal Company." We think this was sufficient as against a general demurrer. But were we to say there was merit in this contention, the defect is cured by the answer of defendants wherein it is made to appear that their rights, if any, came through the Mackton Coal Company, and hence there was no issue involved in the action as to the ownership of the Mackton Coal Company. The issue is one of priority among respective claimants, all of whom...