Waechter v. Wilde

• Decision Date: 11 December 1934
• Docket Number: 1866
• Citation: 38 P.2d 321,47 Wyo. 363
• Parties: WAECHTER v. WILDE, STATE EXAMINER
• Court: Wyoming Supreme Court

38 P.2d 321

47 Wyo. 363

WAECHTER v. WILDE, STATE EXAMINER

No. 1866

Supreme Court of Wyoming

December 11, 1934

APPEAL from the District Court, Albany County; V. J. TIDBALL, Judge.

Action by Eva J. Waechter against A. E. Wilde, as State Examiner in charge of the liquidation of the First State Bank of Laramie an insolvent corporation. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

The cause was submitted for the defendant and appellant on the brief of Ray E. Lee, Attorney General; O. O. Natwick, Deputy Attorney General, and W. C. Snow, Assistant Attorney General all of Cheyenne.

Respondent presented her claim as a preferred claim, but it was rejected as a preferred claim and allowed as a general claim. The evidence shows that she received dividends upon a general claim. The evidence also shows that the land which she sold to the bank was for a consideration of $ 1440.00, paid by satisfying certain notes and interest amounting to $ 489.06 and depositing $ 498.00 to the credit of plaintiff, and by issuing two cashier's checks, payable to the plaintiff, each being for $ 226.47. Plaintiff testified that she left the two checks at the First State Bank of Laramie, for the purpose of paying taxes and meeting obligations on her contract of purchase of a restaurant. Upon these facts, plaintiff's claim was merely a general claim, consequently she was not entitled to any judgment. Chapter 10, Article V, W. R. S. 1931. Under the allegations of her answer, she is asserting a lien after parting with title. Chapter 97, W. R. S. 1931. Smith v. Allen, 50 P. 783; Baker v. Fleming, 6 Ariz. 418; Hall v. Hall, 50 Conn. 104; Rice v. Rice, 36 F. 860; Philbrook v. Delano, 29 Me. 410; Ahrend v. Odiorne, 118 Mass. 261; Edminister v. Higgins, 6 Neb. 265; Arlin v. Brown, 44 N.H. 102; Draper v. Allen, 114 N. Car. 50; Frame v. Sliter, 29 Ore. 121; Schenck v. Wicks, 23 Utah 576; Ginter v. Breeden, 90 Va. 565; Wilson v. Morrell, 5 Wash. 654. As to a vendor's lien, see case of Bayley v. Greenleaf, 7 Wheaton 46, 5 L.Ed. 393. No covenants shall be implied in any conveyance of real estate, whether such conveyance contains special covenants or not. Section 97-107, R. S. 1931. The allowance and establishment of a claim by the state examiner against an insolvent bank is for all practical purposes the equivalent of a judgment. There is no evidence that plaintiff intended to preserve a lien upon the property she conveyed. Kauffelt v. Bower, 7 Serg. and R. (Pa. 64, 76); Pomeroy's Equity Jurisprudence, Vol. 3, Sec. 1253. We submit that the judgment of the trial court is erroneous, and that plaintiff is not entitled to a preferred claim, and that there can be no grantor's lien under the laws of this state.

For the respondent, there was a brief by C. M. Eby and Z. D. Bohrer, of Laramie.

The action is brought upon an implied lien arising out of the equitable right given one who has conveyed title to land without reserving a lien on the land, or who has not taken other security than the personal obligation of the purchaser to subject the land, in equity, to the payment of the purchase price. 66 C. J. 1211, Sec. 1073, 1075. Mackreth v. Symmons, 15 Ves. Jr. 329. This common law doctrine has never been abolished by statute in Wyoming. It has been recognized in several states. Still v. Grimm, 27 Ga. 502; Hooper v. Central Company, 32 A. 505; Manley v. Slason, 21 Vt. 271; Little and Telford, v. Brown, 29 Va. 353; McNeil v. Miller, 37 W.Va. 679. Wyoming adopted the common law. Chapter 26, R. S. 1931. The Wyoming statute, Section 97-107, R. S. 1931, cited by appellant, concerns in no way an implied lien for the purchase price of real estate. It was designed for the protection of a grantor. 4 Kents Comm. 13th Ed. 538; Douglas v. Lewis, 131 U.S. 75; Wright v. Buchanan, 123 N.E. 53; Johnson v. McKinnon, 34 So. 272; Cassell v. Lowry, 72 N.E. 640; Hubbell v. Henrickson, 67 N.E. 302; Bates, et al. v. Childers, 20 P. 167, 168; Burroughs v. Gilliland, 43 So. 301; Knickerbocker Company v. Carteret Company, 82 A. 146-8; Reese v. Kinkead, 1 P. 667; Smith Granite Co. v. Newell, 47 A. 97; Olds, County Treasurer, v. Little Horse Creek Cattle Company, 22 Wyo. 336; Baldwin v. McDonald, 24 Wyo. 108; 2 Story Eq. Jur., Sec. 1218. There was no waiver of implied lien by vendor. 66 C. J. 1264; Hubbard v. Buck, 13 So. 364; Morris v. Fromlet, 4 Ohio St. 231; Zook v. Thompson, (Ia.) 82 N.W. 930; Honore's Ex'r. v. Bakewell, (Ky.) 43 Am. Dec. 147, 27 R. C. L. 576; Tiernan v. Beam, 2 Ohio 383; De Cordova v. Hood, 21 L.Ed. 587. The case is similar to that of Eckhert v. Lewis, 275 P. 767; Jacob Boos v. Ewing, 17 Ohio 500. A lien on the land sold for the purchase money is preferred. Patterson v. Johnson, 7 Ohio 225; Miller v. Albright, 53 N.E. 490-2. The judgment and decree of the lower court should be affirmed.

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

OPINION

RINER, Justice.

The plaintiff and respondent, Eva J. Waechter, obtained a judgment against the defendant and appellant, A. E. Wilde, as State Examiner in charge of the liquidation of the First State Bank of Laramie, an insolvent corporation, in the District Court of Albany County. The record in the case comes here by direct appeal. The parties will be referred to generally as aligned in the court below. The facts to be considered in disposing of the case are very little in dispute and may briefly be stated as follows:

The plaintiff, being indebted to the First State Bank of Laramie, on February 11, 1932, sold and conveyed to that corporation some 480 acres of land situated in Albany County, Wyoming, at the purchase price of $ 1,440. Of this sum, $ 498.00 was placed to her credit in her general checking account in said bank, and $ 489.06 was applied in liquidation of the several notes and interest thereon evidencing her indebtedness to the institution. The balance still due plaintiff, or $ 452.94, was, at the suggestion of the bank's cashier, Mr. DeKay, placed in the form of two cashier's checks, each for $ 226.47, payable to the order of the plaintiff, and each bearing the date of the transaction above described.

It appears that the plaintiff had certain taxes to pay on March 10, 1932, and, also, that she had bought a restaurant business, on whose purchase price she was required to make specified payments the first of each month. It was orally agreed between the bank, represented by its cashier Mr. DeKay, and S.C. Downey, one of its directors, and its counsel, and the plaintiff that the funds represented by the two cashier's checks, aforesaid, should be held by the bank solely for the purpose of insuring that the plaintiff could and would meet the above mentioned obligations of taxes and partial payments on the business. Mr. Downey, as a witness for the defendant, stated, in the course of his cross-examination, that Mr. DeKay, at the time the sale aforesaid was consummated, said to the plaintiff that, referring to the amount of money eventually evidenced by these checks, "if she would, he would prefer that she leave the money in the bank at that time and not put it into her checking account," and that it was "at his instigation and suggestion" that this money was left with the bank until it should be needed for the purposes already described.

The plaintiff, through her earnings from the business she had bought, was able to meet the required payments intervening February 11, 1932, and April 27, 1932, and, the taxes being not as yet due, there was, accordingly, no need for her to call upon the bank for the money represented by the aforesaid checks. On the date last mentioned, the institution passed into the hands of the state examiner, for liquidation as an insolvent bank. It is to be noted, in this connection, that these checks never left the bank, and came then into the hands of the state official who produced them at the trial.

On February 17, 1933, plaintiff filed with the state examiner her claim for $ 452.94, as a preference claim. This was rejected as such a claim on February 28 following by that official, but it was allowed as a general claim against the assets of the institution in his hands. Subsequently, two checks, each for $ 22.64, were on May 6, 1933, sent to plaintiff, as the amounts due her under dividends paid, in the course of liquidation, to the bank's general creditors. These dividend checks were received by her, but under date of May 29, 1933, were returned to the defendant uncashed.

April 26, 1933, plaintiff instituted action in the district court aforesaid, to recover the amount of the two checks, and praying that this sum be adjudged a lien upon the property sold to the bank as previously related. In outline, the defendant's answer, other than a general denial, asserted that plaintiff, by retaining the dividend checks aforesaid, without cashing same, elected to receive only a general creditor's share in the assets of the defunct bank, and is estopped to claim otherwise. The affirmative allegations of the answer were put in issue by plaintiff's reply.

The case was tried to the court and the judgment entered December 11, 1933, found generally for the plaintiff and that the latter had a vendor's lien on the premises sold to the bank, for the balance unpaid of the purchase price, to-wit $ 452.94; adjudged that plaintiff recover of the defendant that amount, and, also, that if the same was not paid with interest and costs within thirty days of the judgment's date, the lien should be foreclosed and the property sold to make the sum due, the method of procedure in such foreclosure being duly indicated.

It is contended that the plaintiff, as a vendor, under the law of this state, has no lien upon the property sold the bank, for the unpaid portion of the purchase price...