Weltner v. Thurmond

Decision Date24 December 1908
Citation98 P. 590,17 Wyo. 268
PartiesWELTNER ET AL. v. THURMOND
CourtWyoming Supreme Court

Rehearing Denied March 10, 1909, Reported at: 17 Wyo. 268 at 309.

ERROR to the District Court, Sheridan County, HON. DAVID H. CRAIG Judge.

Suit in equity to enforce the rights of a grantor of real estate under a contract entered into between the parties contemporaneously with the deed. Judgment was rendered for the plaintiff, and the defendants prosecuted error. The material facts are stated in the opinion.

Judgment affirmed.

Stotts & Blume, for plaintiffs in error.

It is apparent from the contract that the transaction was not a mortgage. No personal obligation remained, the debt was extinguished. (Samuelson v. Mickey, (Neb.) 103 N.W 671; 110 N.W. 138; Delaney v. Finnegan, (Minn.) 90 N.W. 387; McMillan v. Bissell, (Mich.) 29 N.W. 737; Blumberg v. Beekman, (Mich.) 80 N.W. 710; Holmes v. Warren, (Cal.) 78 P. 954; Fabrique v. Cherokee etc. Co., (Kan.) 77 P. 584; Jones v. Jones, (S. D.) 108 N.W. 23; Lemke v. Lemke, (Neb.) 111 N.W. 138; Slutz v. Desenberg, 28 O. St. 371; Smyth v. Reed, (Utah) 78 P. 478; Gassert v. Bogh, 7 Mont. 585; 19 P. 281; Morrison v. Jones, (Mont.) 77 P. 507; Martin v. Allen, (Kan.) 74 P. 249; Reed v. Parker, (Wash.) 74 P. 61; Reed v. Bond, (Mich.) 55 N.W. 619; Watson v. Edwards, 105 Cal. 70; 38 P. 527; Bigler v. Jack, (Ia.) 87 N.W. 700.)

The transaction does not constitute a trust. The contract does not obligate any one to sell. The plaintiff retained no interest in the real estate, which is essential to constitute a trust in the land. The only interest, if any, that plaintiff could possibly have retained would be an interest in the proceeds of a sale. The deed delivered is a warranty deed, and the fee cannot be limited in any such way as that contended for by counsel for defendant in error. (Case v. Dwire, (Ia.) 15 N.W. 265; 9 Ency. Law 141.) The principle relied upon by the plaintiff in error has been decided in numerous cases in which similar contracts have been entered into. (Byers v. Locke, (Cal.) 29 P. 119; Snyder v. Wolford, (Minn.) 22 N.W. 254; Miller v. Kendig, 55 Ia. 174; Stewart v. Nevins, 50 Cal. 276; Shanahan v. Richardson, (Minn.) 78 N.W. 11; s. c. Id. 671; Davis v. Peterson, (Minn.) 60 N.W. 1007; Kickland v. Menasha, (Wis.) 31 N.W. 471; Smith v. Rainey, (Ariz.) 83 P. 463.) In these cases it was held that the agreement was not within the statute of frauds, and to decide that question it was necessary to decide that no interest under the contract was retained by the plaintiff in the real estate. In the following cases wherein it was sought to have certain language construed as creating a trust in relation to real estate the decisions support the contention of the plaintiffs in error: Hossack v. Graham, 55 P. 36; Fairbanks & Co. v. Welshans & Co., (Neb.) 75 N.W. 865; Phillips v. Hogue, (Neb.) 88 N.W. 181; In re. Donaldson Est., (Ia.) 101 N.W. 870; Malley v. Malley, (Ia.) 96 N.W. 735; M. Co. v. Abbott, (Colo.) 42 P. 318; Marshall v. Strange, (Ky.) 9 S.W. 250; McIlhenny v. Biz, (Tex.) 13 S.W. 655; Cook v. Black, 54 Ia. 693; Riddle v. Beattie, (Ia.) 41 N.W. 607; Rider v. Clark, 54 Ia. 242. We contend that a promise to pay another out of the proceeds of certain property not under the control of the promisee does not create a trust in that property.

If the contract amounted to a promise that the plaintiffs in error would pay the defendant in error a part of the proceeds it did not create a lien, and, therefore, not a trust in or upon the real estate. The grantees under the deed could do with the property what they pleased, since the grantor retained no control over it. In such a case there is no lien and no trust in or upon the property. The judgment is erroneous, therefore, for adjudging that the defendant in error had an interest in the property. (Am. P. Co. v. Wright, 46 A. 215; Franklin v. Browning, 117 F. 226; Strong v. R. R. Co., 102 F. 511; Addison v. Enoch, 62 N.Y.S. 613; Hale v. Dressen, (Minn.) 78 N.W. 1045.)

The contract is void for the absence of any obligation. A party suing upon a contract must show a binding agreement between the parties. (9 Cyc. 712-717; Buckmast v. Thompson, 36 N.Y. 557; Clarke v. Koenig, (Neb.) 54 N.W. 842; Kleinschmidt v. Kleinschmidt, (Mont.) 24 P. 266; Huntington v. Russell, 8 P. 511.) Though courts will construe a contract if possible so as to make it enforceable, a new contract cannot be supplied for the parties, nor can terms and conditions be interpolated to which the parties have not assented. (Westfall v. Albert, 212 Ill. 68; Stanlon v. Miller, 58 N.Y. 192; Gibson v. Minet, 1 H. Bl. 615; Miller v. Kendig, 55 Ia. 174; Allen v. Ross, (Ia.) 110 N.W. 583.) There was no obligation to sell, and the only way in which such an obligation can be found in the contract is by interpolating the same. It does not appear that the plaintiffs in error ever assented to the proposition that they would be obliged to sell. (Darr v. Mummert, 57 Neb. 378; Becknagle v. Schmaltz, (Ia.) 33 N.W. 365; Fisher v. Buchanan, (Neb.) 96 N.W. 339; Story's Eq., Sec. 767.)

The contract is void for uncertainty. There is no time stated for the sale or any provision requiring sale. (Gates v. Gamble, (Mich.) 13 N.W. 631; Mfg. Co. v. Hobbs, (N. C.) 83 Am. St. 661; Alstrom v. Fitzpatrick, (Mont.) 42 P. 757; Jenkins v. Clarkson, 7 Ohio 72; Stickler v. Giles, (Wash.) 37 P. 293; Faulkner v. Drug Co., (Ia.) 90 N.W. 585; Wilkinson v. Havenrich, (Mich.) 26 N.W. 139; Davie v. Co., (Mich.) 53 N.W. 325; Ames v. Life Ins. (Minn.) 86 N.W. 344.)

Again, the suit cannot be maintained for the reason that the contingency upon which certain payments were to be made to the plaintiff below has not arisen, no sale having occurred. (Root v. Childs, 68 Minn. 142.) The defendants pleaded the statute of limitations generally, and evidence was produced upon the theory that such pleading was sufficient. It is, therefore, to be treated as having been sufficient. (Boglio v. Georgietta, 20 Colo.App. 338; Nix v. Miller, 26 Colo. 203; Spooner v. Keele, 51 N.Y. 527; Tew v. Powers, 86 P. 342.) Where no party is misled amendments are liberally allowed. The defendants below were properly allowed to amend their pleading as to the statute of limitations and the subsequent order striking the amendments from the files was improper.

The action is barred by the statute of limitations. It should have been brought within five years after the execution of the contract. (Ingersoll v. Davis, 82 P. 867; Adams v. Holden, (Ia.) 82 N.W. 469.) The right to redeem is reciprocal with the right to foreclose and where the right to foreclose is barred, the right to redeem is also barred. The right to foreclose and to redeem commenced the moment that the contract was made. (Borden v. Clow, 30 P. 821.) Some of the cases cited below turned upon the point as to the time that the statute commenced to run; all seem to agree that when possession follows the statute commences to run as soon as that possession is taken. Borden v. Clow, (Nev.) 30 P. 821; Allen v. Allen, (Cal.) 27 P. 30; Morrow v. Jones, (Neb.) 60 N.W. 369; Murphy v. St. Paul, (Minn.) 65 N.W. 357; Long v. Long, (Mo.) 19 S.W. 537; Miller v. Smith, (Minn.) 46 N.W. 324; Dickenson v. Stewart, (Neb.) 98 N.W. 1085; Rogers v. Benton, (Minn.) 38 N.W. 765; Bradley v. Norris, 65 N.W. 367; Searight v. Palmer, (Ala.) 7 So. 201; Green v. Capps, (Ill.) 31 N.E. 597; Hancock v. Harper, 86 Ill. 445; Emory v. Keihan, 94 Ill. 543; Locke v. Caldwell, 91 Ill. 417; Cower v. Winchester, 33 Iowa 303; Cunningham v. Hawkins, 24 Cal. 409; Crawford v. Taylor, 42 Ia. 260; Green v. Turner, 38 Ia. 112; Smith v. Foster, 44 Ia. 442; Holton v. Meighen, 15 Minn. 69; King v. Meighen, 20 Minn. 264; Parson v. Noggle, 23 Minn. 328; Fisk v. Stewart, 26 Minn. 365; 4 N.W. 611; Bird v. Keller, 77 Me. 270; Green v. Cross, 45 N.H. 584; Kaufman v. Sayre, 2 B. Mon. 202; Haskell v. Bailey, 22 Conn. 569; Jackson v. Lynch, 129 Ill. 72; 21 N.E. 580; Krutz v. Gardner, (Wash.) 65 P. 771; Stevens v. Dedham, 129 Mass. 547; Montgomery v. Chadwick, 7 Ia. 113; Rogers v. Benton, (Minn.) 38 N.W. 765; Bradley v. Norris, 65 N.W. 357, and see cases cited supra.

Nothing has intervened in this case to interrupt the statute. The witness Helvey had a conversation with one of the plaintiffs in error, but the latter in no manner recognized the rights of Thurmond. In any event the plaintiffs in error being tenants in common the admission being made by one only would not bind either one. (Jones on Mortgages, 5th Ed., Sec. 1171.)

The action to foreclose is not an action to recover real property, and neither is an action to redeem. (Ingersoll v. Davis, 82 P. 867; Krutz v. Gardner, (Wash.) 65 P. 771; McKesson v. Haley, (Neb.) 35 N.W. 883.) There is no conflict in the evidence as to value. The property was worth more than the amount of the claim of plaintiffs in error as early as 1900. Therefore, the defendant in error could have brought the action at that time, if he had a cause of action, and the situation has not changed except that the value has risen higher. But he delayed too long. The statute of limitations is favorably construed. No time for payment being fixed, the statute begins to run from the time of the contract. (Borden v Clow, (Nev.) 30 P. 821; Howard v. Church, (Mich.) 16 N.W. 307; Owen v. Henderson, 7 Ala. 641; Clay v. McKeen, 69 N.H. 86; Erwin v. Brooks, 111 N.C. 358; Caldwell v. Rodman, 50 N.C. 139; Little v. Dunlap, 44 N.C. 40; Teasly v. Bradley, 110 Ga. 497.) A party cannot gain by his own negligence, and postpone the running of the statute. (Ganser v. Ganser, (Minn.) 86 N.W. 18; Wood Lim. 37; Bissell v. Forbes, (Cal.) 82 P. 698; Lewis v. Penderdrast, (Minn.) 39 N.W. 802; 19 Ency. L., 2nd Ed., 211; 18 Id. 116; Atchison v. Burlingame, (Kan.) 14 P. 271; ...

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