Upjohn v. Moore

• Decision Date: 21 November 1932
• Docket Number: 1761
• Parties: UPJOHN v. MOORE
• Court: Wyoming Supreme Court

16 P.2d 40

45 Wyo. 96

UPJOHN v. MOORE

No. 1761

Supreme Court of Wyoming

November 21, 1932

ERROR to District Court, Crook County; HARRY P. ILSLEY, Judge.

Action by Charlotte Upjohn against Edward Moore and others including Charles E. Louis, wherein Russell D. Krause intervened. From the judgment, defendant Louis appeals.

Affirmed.

The cause was submitted for the appellant upon the brief of Raymond & Diefenderfer, of Newcastle, Wyoming.

The action was for the foreclosure of a mortgage executed by the Moores, and to cancel a tax deed, under which Louis claims ownership of the land, and to quiet title against all of the defendants. Krause, intervener, claimed possession by virtue of a lease from Moore, and sought to quiet title as against Louis alleging defects in the tax sale. The rule against joining in a foreclosure suit, claimants of adverse and paramount title is generally applied to persons claiming under a tax sale of the mortgaged premises. 42 C. J. 55; Secs. 1577-1578. The validity of a tax title cannot be litigated in a mortgage foreclosure. Odell v Wilson, 63 Cal. 159; Robert v. Wood, 38 Wis 60; Gage v. Perry, 93 Ill. 176. The authorities are reviewed in Tinsley v. Atlantic Mines Company, 77 P. 12; also, Mendenhall v. Hall, 134 U.S. 559. See also Heffner v. N.W. Mutual Life Ins. Co., 123 U.S. 747. A party holding a paramount title to real estate adverse to the mortgage and not in collusion with the mortgagor, cannot be made a party defendant in a suit to foreclose the mortgage against his will. No collusion is to be found in the case at bar.

The case was submitted for respondents upon the brief of Metz, Sackett and Metz, of Sheridan, Wyoming, and Otis Reynolds, of Sundance, Wyoming.

Appellant appeared below and filed a general demurrer, which was a waiver of any other ground of demurrer W. R. S. 1931, Sec. 89-1007; Gilland v. Union P. Ry. Co., 6 Wyo. 185. Appellant thereafter filed a demurrer for defect of parties. A defect of parties defendant, is a deficiency, and not an excess of parties. W. R. S. 1931, Sec. 89-1006; New York and New Haven Ry. Co. v. Schuyler, 17 N.Y. 592. A defect of parties must be pointed out specifically. Mitchell v. Thorne, 134 N.Y. 336. The petition states a cause of action against Louis. Chesney v. Livestock Co., 34 Wyo. 378. The tax title was properly litigated in the mortgage foreclosure. W. R. S. 1931, Sec. 89-301, 514, 521, 522, 601, 1015 and 1063; Bamforth v. Ihmsen, 28 Wyo. 282; Bank v. Frantz, et al., 33 Wyo. 326; Winemiller v. Laughlin, 51 O. S. 421; Trust Co. v. Anderson, 11 O. C. C. R. 246; Bradley v. Parkhurst, 20 Kan. 462; Stacey v. Tucker, (Kas.) 254 P. 339; Masters v. Templeton, 92 Ind. 447; DeWolf v. Mfg. Co., 49 Conn. 282; Carpenter v. Ingalls, 3 S.D. 49; Heffner v. Ins. Co., supra; Mathers v. Rwy. Co., 12 O. C. C. R. 136; Provident Loan and Trust Co. v. Marks, (Kas.) 52 P. 449. The Indiana and Kansas statutes are similar to Wyoming. Masters v. Templeton, 92 Ind. 447; Cohen v. Solomon, 66 F. 411. Appellant's authorities are readily distinguished from the instant case because not founded upon code provisions such as we have in this state.

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

OPINION

BLUME, Justice.

In the instant case, the plaintiff brought an action to foreclose a mortgage executed by the defendants Moore and wife, owners of the land mortgaged. He further alleged that after the execution of such mortgage Charles E. Louis became the holder of a tax title of the lands in controversy, but that such title, for various reasons alleged in the amended petition, is invalid, and that he never came into possession of the lands, such possession having at all times been held, and is being held, by the defendant Moore or his tenant. Plaintiff, accordingly, prayed that the mortgage be foreclosed and that the tax title of defendant Louis be declared to be invalid, but that he be allowed the amount of taxes paid, together with interest, etc. The court rendered judgment as prayed, and the defendant Louis has appealed, presenting as the only question whether a party seeking to foreclose a mortgage by suit may join defendants who claim title to the land as tax-title owners adversely to the mortgagor defendant, the adverse claimants not being parties to the mortgage. This point was raised, though perhaps imperfectly, by demurrer, by answer and upon the trial of the case. Whether it was sufficiently raised is a question as difficult of solution as the main question herein, and hence we shall assume that it was, and proceed to consider the point raised herein by the appellant.

The authorities on the point are in direct conflict, some holding that the validity of the tax title may be litigated in an action to foreclose a mortgage, and others holding the contrary. 42 C. J. 55; Jones on Mortgages (8th Ed.) Sec. 1794; Wiltse, Mortgage Foreclosure (2nd Ed.) Sec. 390. The latter view, that contended for by appellant, is upheld in Roberts v. Wood, 38 Wis. 60; Brown v. B. & L. Association, 46 Fla. 492, 35 So. 403; Tinsley v. Mines Company, 20 Colo.App. 61, 77 P. 72, and some cases from Illinois. It is also upheld in the case of Odell v. Wilson, 63 Cal. 159. But that case seems to be in conflict with Kohner v. Ashenauer and Wife, 17 Cal. 578, which was an action to foreclose a mortgage executed by the husband, and in which it was said that "if the wife claimed the premises as her separate property by virtue of the previous conveyance from him, that circumstance was sufficient to justify the plaintiff in making her a defendant." In Waite v. First German etc. Church, 6 Ohio N.P. 434, 8 Ohio Dec. 158, the common pleas court upheld appellant's contention. But that case is contrary, we think, to United States Mtg. & T. Co. v. Anderson, 20 C. D. 491, affirmed 86 Ohio St. 320, 99 N.E. 1120, 87 Ohio St. 484, 102 N.E. 1118; Western Land Co. v. Buckley, 3 Neb. (Unoff.) 776, 92 N.W. 1052, and Hurley v. Cox, 9 Neb. 230, 2 N.W. 705, are also sometimes cited in support of the contention here made by the appellant, but these cases are not in point, although in the last cited case there is a dictum in appellant's favor. Williams v. Cooper, 124 Cal. 666, 57 P. 577, merely decides that the holder and claimant under a tax title is not a necessary party to an action of foreclosure of a mortgage, although in that case, too, there is dictum similar to that in Hurley v. Cox. The New York rule will be mentioned later.

The cases which hold that a tax title cannot be litigated in an action of foreclosure of a mortgage are generally based on the rule stated in 42 C. J. 55, that a person setting up a claim of title to the mortgaged premises adverse and paramount to that of the mortgagor, and not derived from him, is not a proper party to the foreclosure suit. Thus in McAlpine v. Zitser, 119 Ill. 273, 10 N.E. 901, 902, the court, speaking of previous decisions announcing this rule, said:

"These cases proceeded upon the general, well understood rule, that mere legal titles are for trial and determination in courts of law, and that in a suit in chancery for the foreclosure of a mortgage, the independent legal title of a third person, which is adverse and paramount, should not be drawn into adjudication there."

In Brown, et al. v. Building and Loan Association, 46 Fla. 492, 35 So. 403, 404, the court, while stating that some of the courts have been more liberal in cases involving tax titles, also states, quoting from other authorities, the reason for not letting tax titles to be thus litigated, as follows:

"A court of equity is not an appropriate tribunal, nor is a foreclosure suit a suitable proceeding for the trial of claims to the legal title which are hostile and paramount to the interests and rights and titles of both mortgagor and mortgagee."

The objection against joinder accordingly is, first, that a legal title ought not to be litigated in an equity suit, if, secondly, that title is paramount and hostile to that of the mortgagor, and is not derived from him. The rule, of course, finds its origin in the time when courts of equity and courts of law were distinct, and when it was generally held that a court of equity was not the proper court, or as stated by some courts, had no jurisdiction, to settle the title to lands, unless incidental to a complete adjudication of the controversy. 21 C. J. 63, 65; Lange v. Jones, 32 Va. 192, 5 Leigh 192. But there are no courts of law, as distinguished from courts of equity, in this state, or, generally, in the Code states. Forms of action are abolished. The same court, if one of general jurisdiction, administers both law as well as equity. Hence an objection that the court has no jurisdiction to try a legal title does not lie. And whether or not a tax title should be litigated in an action of foreclosure of a mortgage seems to involve but procedural rules relating to joinder of parties, and, in some cases, to the mode of trial with or without a jury. The rules as to joinder of parties in an action at law were formerly different from those prevailing in suits in equity. In an action at law "no one could be plaintiff unless he was alone or jointly with the co-plaintiffs entitled to the whole recovery, nor a defendant unless he was alone or jointly with the co-defendants liable to the entire demand." Pomeroy, Equity (4th Ed.) Sections 113, 114. But it was different in an equity action. Pomeroy, Code Remedies, (5th Ed.) Sec. 161, says:

"The grand principle which underlies the doctrine of equity in relation to parties is, that every judicial controversy should, if possible, be ended in one litigation; that the decree pronounced in a single suit should determine all rights, interests and claims, should ascertain and define all conflicting relations, and...