Walter v. Kressman

• Citation: 25 Wyo. 292,169 P. 3
• Decision Date: 10 December 1917
• Docket Number: 882
• Parties: WALTER v. KRESSMAN, ET AL
• Court: United States State Supreme Court of Wyoming

169 P. 3

25 Wyo. 292

WALTER v. KRESSMAN, ET AL

No. 882

Supreme Court of Wyoming

December 10, 1917

ERROR to District Court, Fremont County; HON. CHARLES E. WINTER Judge.

Action by Edward Kressman against Joseph H. Lobell, et al., to foreclose a mortgage granted by decree of court. Several other parties intervened, or were brought in as defendants. Charles Walter, as assignee of H. Winfigeld Hillman, brings error to review the judgment.

Affirmed.

E. H Fourt, for plaintiffs in error.

This was not an action to reform an instrument, or which authorized the trial court to reduce the amount of money stated in the mortgage. Madame Bertrand was charged with notice of the Hillman mortgage, and the court could not revive that mortgage to establish her claim; she mistook her remedy, instead of bringing an action against Walter, et al which would have been proper, if her claim was valid. The evidence shows that Madame Bertrand agreed to accept a very small percentage of what might be realized, if the property in question were sold for the payment of their several claims, which she would not have done except for doubt as to the validity of her claim. The court erred in treating the several mortgages as mere equities. The Hillman mortgage was executed and recorded prior to the others. The court erred in basing its decision upon the equitable doctrine of priority of equities, since there is no claim that Hillman mortgage is other than a straight legal mortgage for $ 100,000.00. There is no evidence showing that Hillman authorized Mr. Walter to act and speak for him, authorizing the Hillman mortgage to take second place in case Kressman advanced money to take up the property. The court erred in holding that all of the mortgagees stand in the same attitude. The 25,000 pounds was paid by Hillman prior to the advance of the other mortgage. The Hillman mortgage being duly recorded was notice to and took precedence of subsequent purchasers or incumbrances. (Sec. 3653, Comp. Stat. 1910.) The court was without jurisdiction of defendants, Walter and Hillman, when the judgments for equitable mortgages were rendered, as they had not been served with notice. (Storey C. F. L. 539; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.) There were no pleadings by the plaintiff, Kressman, or defendants, d'Hespel and Bertrand. Charles Walter, an assignee of Hillman, and Henry Walter allege that the payments are void, and Hudson Development Company, the real party in interest, does not deny that fact. The suit in equity acts upon the person, and if the allegations and claims of Kressman, d'Hespel and Bertrand were true, the judgment should have been a personal one directing the execution of deeds or mortgages. (Hollander v. Central Metal Co., 109 F. 131, 71 At. Rep. 442, 32 L. R. A. P. 72.) An action for specific performance is a proceeding in personam. (Dorsey v. Omo, 93 F. 74, 48 A. 741.) Equitable relief against judgments on the ground of fraud, accident or mistake is permissible; the statutory provisions having set aside a judgment are cumulative. (Edwards v. Cheyenne, 114 P. 677; Bank v. Kilpatrick, et al., 89 P. 1035.) There is no finding of laches on the part of plaintiffs in error by the trial court, and the judgments were opened and set aside, and the plaintiffs in error permitted to defend. (Liebhardt v. Lawrence, 120 P. 215; In re. Huntington v. Courer, 54 P. 208. See also Stern v. Judson, 127 P. 38; Dunlop v. Steere, 28 P. 563.) A judgment taken by an unauthorized appearance of attorney is void. (Harshey v. Blackmerr, 20 Ia. 161, 89 Am. Dec. 520; Dubois v. Clarke, 55 P. 750.) A partner has no power to bind his co-partners by a confession of judgment against the firm. (Buchanan v. Plow Co., 39 P. 899; Hoffman v. Assn., 102 P. 1045.) In Iowa it is held that such confession is binding upon the partner confessing. (Scott v. Mudge Co., 13 Ia. 496.) Some authorities hold that a judgment against one of the parties is a waiver of demand against the other partners. (81 Am. Dec. 441; 37 Am. Dec. 469; Gaiennie v. Aikens, 17 La. 42, 36 Am. Dec. 604.) A delivery cannot be presumed from the record of an instrument alone. An unauthorized appearance by counsel and judgment rendered, while perhaps a ground for damages against the attorney, is not binding upon defendants. (Shelton v. Tiffin, et al., 6 Howard 163, 128 L.Ed. 387; Sherrard v. Nerius, et al., 2 Ind. 241, 52 Am. Dec. 509.) The practice of filing separate petitions is suggested by our court. (State v. District Court, 39 P. 749. See also 23 Cyc. 369.) A suit to quiet title alleging fraud was a direct attack upon the judgment. (Brown v. Trent, 128 P. 895.) The petitions allege that Lobell was a trustee, and knowing this fact defendants in error should have asserted the powers of the trustee. Failure to do so made them guilty of laches, and the judgment void. (Freeman on Judgments, Sec. 358.) Where an agent signed without authority, the contract was void. (Anderson v. Rasmussen, 5 Wyo. 44.) An unauthorized confession of judgment by an attorney or agent is void. (Freeman on Judgments, Sec. 545; Gifford v. Corrigan, 11 N.E. 498.) Delivery of a deed is requisite to a legal execution thereof. Recording is not a delivery. (Chess v. Chess, 21 Am. Dec. 350.) Recording is merely prima facie evidence of delivery. (Gilbert v. N. A. Fire Ins. Co., 23 Wendell 1131, 45 Am. Dec. 543; Bullitt v. Taylor, 69 Am. Dec. 417; 1 Jones on Mortgages, 407.) Where a mortgage was recorded on the 12th of May, 1870, and was held by the mortgagor ready for delivery, when he should obtain a loan and was not delivered until the following month, the latter date was held to be the date of registry, as against one, who had in the meantime acquired a mechanic's lien on the property. (1 Jones on Mortgages, 409, Sec. 541.)

Fred D. Hammond, for defendants in error, Kressman and d'Hespel.

The testimony of defendants in error was received below without objection; plaintiffs in error did not reserve exceptions to the proceedings below. Charles Walter reserved an exception to the entry of the final order. The judgment of the court is sustained by the evidence. The action of the trial court in fixing the rank of the mortgages on a parity is sustained by equitable principles in view of the evidence. There is no proof in the record that Hillman's mortgage was ever delivered. It may be assumed for the purpose of the argument that the Desgenetais mortgage was never delivered. In the court below, counsel for plaintiffs in error cited the following authority for the proposition that while the record of an instrument is not a delivery, it is prima facie evidence thereof and presumptive evidence of delivery: 16 Cent. Digest Col. 776; Heil v. Redden, 26 P. 2 (Kan.); Bullitt v. Taylor, 69 Am. Dec. 417; Jones on Mortgages, p. 407. Therefore, in the absence of testimony, except the date of record, the date of record is the date when these mortgages become effective between the parties. Service on Lobell on July 20th, 1905, invoked the rule of lis pendens as to third persons. Consequently, if we were to meet counsel on his own ground as to the rank which should be given these mortgages, the Kressman mortgage should be first, the d'Hespel mortgage second, the Desgenetais mortgage third and the Hillman mortgage fourth. Business methods obtaining in France and England where all of the business of the borrowing by the Syndicate to complete the Henderson purchase was done should be considered, and the evidence shows various agreements written and verbal as to the intention of the parties, as to the standing of these mortgages. The moneys were not strictly purchase price moneys, but are real in the nature of cash advances. Purchase money is the term used to designate the money stipulated to be paid by the purchaser to the vendor and does not relate as between the borrower and the lender for money borrowed to purchase. (Heuisler v. Nickum, 38 Md. 270, 279; Eyster v. Hathaway, 50 Ill. 521, 525.) The record will show that the perjury was committed by Henry Walter and Charles Walter before the trial court.

A. C. Campbell and Ralph Kimball, for defendant in error, Madame Bertrand.

The Desgenetais mortgage was supported by valuable consideration. It was given for 26,240 pounds. It will be noticed, however that the mortgage was given to secure the sum of 30,240 pounds, 4,000 pounds more than was actually advanced, but which represented interest on the loan until May 1st, 1906. Madame Bertrand's petition alleges that the Desgenetais mortgage was delivered to him, which allegation was not specifically denied. The mortgage was placed of record and thereafter became the property of Madame Bertrand. This mortgage has not been paid, notwithstanding a vague attempt to show that it was paid in bonds of the Petroleum Maatschappij Henderson. It was given for money to pay the purchase price of the Henderson lands. There is no evidence that the Hillman mortgage was ever delivered. The evidence is conclusive that there was a delivery of the Desgenetais mortgage. We cannot agree with the decision of the court that all of the mortgages were of equal rank. Under the recording statute of Wyoming, Desgenetais was entitled to priority over the Hillman mortgage. (Secs. 3620, 3654, Comp. Stat. 1910.) Most of the assignments of error are mere arguments on immaterial matters which were mentioned or suggested in the evidence. To constitute delivery the grantor must part with the possession of the deed, or the right to retain. (Young v. Guilbeau, et al., 3 Wall. 636, 18 L.Ed. 262.) No particular form or ceremony is necessary to constitute the delivery of a deed, if an intent to deliver is apparent. Delivery for record, if followed by assent, is good delivery. (Lee v. Fletcher, 46 Minn. 49, 12 L. R. A. 171.) ...