York v. James

• Decision Date: 02 May 1944
• Docket Number: 2280
• Citation: 60 Wyo. 222,148 P.2d 596
• Parties: LESTER A. YORK, Plaintiff and Respondent, v. JOHN P. JAMES, Defendant and Appellant
• Court: Wyoming Supreme Court

148 P.2d 596

60 Wyo. 222

LESTER A. YORK, Plaintiff and Respondent, v. JOHN P. JAMES, Defendant and Appellant

No. 2280

Supreme Court of Wyoming

May 2, 1944

Appeal from District Court, Niobrara County; Harry P. Ilsley, Judge.

Action to quiet title by Lester A. York against John P. James wherein defendant filed a cross-petition.

Judgment for plaintiff, and defendant appeals.

Reversed and remanded for a new trial.

Reversed and Remanded.

For the defendant and Appellant there was a brief by Thomas O Miller, of Lusk, Wyo., and an oral argument by John P. James of Denver, Colorado, pro se.

POINTS OF COUNSEL FOR APPELLANT

No prima facie case was made by the plaintiff upon the introduction of the deed purporting to have been made by Lena Shaner to plaintiff. In order to be entitled to claim relief, the complainant must present clear or satisfactory proof of title; if the showing in this respect leaves the judicial conscience in doubt, relief will be denied. 44 Am. Jr. 69.

A deed from one not shown to have title to the land is not sufficient proof of title to sustain a suit to quiet title. Sanders v. Boone 154 Ark. 237, 242 S.W. 66, 32 A.L.R. 461; Davis v. Convention, 45 Wyo. 154.

One claiming the rights of a purchaser in good faith must show that the title purchased by him was apparently perfect and good at law. Rue, et al v. Merrill, et al., 42 Wyo. 497, 297 P. 375.

A purchaser in good faith of real estate should make a careful check of the record affecting the land or procure an abstract of title before making the purchase.

A reasonably prudent man would make an investigation of the physical aspects of the property and check upon the information which he received from such inspection of the premises. McHugh v. Haley, 237 N.W. 835-839 (N.D.).

Plaintiff must show that he purchased the property for a valuable consideration. 27 R.C.L. 695.

For the Plaintiff and Respondent there was a brief and an oral argument by William G. Watt, of Lusk, Wyo., and an oral argument by Arthur H. Laws, of Denver, Colo.

POINTS OF COUNSEL FOR RESPONDENT

In order to present the motion for judgment for review in the higher Court, it must be renewed at end of all of the evidence. Boyle v. Mountford, 39 Wyo. 141; Campbell v. Weller, 25 Wyo. 65, 82; 164 P. 881, 885.

The signing of a deed by an "X" is sufficient signing. 58 C.J. 721. Roway v. Casper Mut. Building and Loan Assn. et al. 48 Wyo. 290.

A deed is prima facie evidence of a good consideration and of what the consideration was upon which it was executed and is evidence that the grantor received the amount named. 18 C.J. 421, Sec. 499; Mullins v. Butte Hardware Co. (Mont.) 65 P. 1004, 1010.

Evidence of title raises a legal presumption of legal or constructive possession, but not of actual possession or occupancy. Mitchell v. Titus, 33 Colo. 385, 80 P. 1942; Webster v. Dautz, 22 Colo.App. 111, 123 P. 139.

Relative to the fact that the Court did not allow defendant to prove that Lena Shaner, grantor in a warranty deed, was not physically or mentally competent to execute said deed at the time the deed was purported to be signed by Mrs. Shaner's (X) mark, appellant has abandoned this specification of error under Rule 14 of this Court. In Re Goshen Irr. Dist. (Wyo.) 293 P. 373, the Court said: "There are many errors assigned in the specifications of error, but most of them are not argued in the brief, and are therefore deemed to be waived." Automobile Ins. Co. v. Lloyd, (Wyo.) 273 P. 681.

Relative to the third specification of error: "The Court erred in making and entering its findings and judgment against the defendant and in favor of the plaintiff," under former rulings of this Court, similar specifications of error have been held too indefinite for consideration and as not presenting any specific error for review. Leach v. Frederick, 36 Wyo. 121, 253 P. 669; Stein et al v. Schuneman, 39 Wyo. 476, 273 P. 543; Posvar v. Pearce, et al. 37 Wyo. 509, 263 P. 711; Peterson v. LeFaivre, 44 Wyo. 378, 12 P. 2d 385; Chicago & N. W. Ry. Co. v. Ott, 33 Wyo. 200 (209), 237 P. 283; Nelson v. Consolidated Elevator & Milling Co., et al. 32 Wyo. 181, 231 P. 397.

Regarding the matter of good faith, the law presumes one's innocence of bad faith, as this is in the nature of a fraud. Bancroft's Code Pleading, Vol. 1, p. 467.

The finding of the trial Court on conflicting evidence will not be disturbed. Rudolph v. Johnson, et al (Cal.) 16 P. 2d 152; Workman v. Pacific Finance Corporation (Utah) 26 P. 2d 961; Equitable Life & Casualty Ins. Co. v. Brennanan (Colo.) 27 P. 2nd 755. Edwards v. Willson, et al., 30 Wyo. 275, 219 P. 233.

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

OPINION

BLUME, Justice.

This is an action to quiet title, brought by the plaintiff York against the defendant James. The court found in favor of the plaintiff and from the judgment entered accordingly the defendant has appealed. The parties will be referred to herein as in the court below.

The plaintiff alleged that he is the owner and in possession of the East Half (E 1/2) of the West Half (W 1/2), the West Half (W 1/2) of the East Half (E 1/2) of Section Thirty-five (35), Township Thirty-five (35) North, Range Sixty-five (65), West of the Sixth (6th) P. M., in Niobrara County, Wyoming; that the defendant claims an interest in said land adverse to the plaintiff; that the claim of the defendant is without any right whatsoever, and that he has no estate, right, title or interest in the land. Plaintiff, accordingly, prayed that the defendant be required to set forth the nature of his claim; that the adverse claim of the defendant be declared void; that he be enjoined from hereafter asserting any such claim. The defendant filed an answer denying the ownership or possession of plaintiff, admitting that he claims an interest in the land, and denying the other allegations of the petition. He also filed a cross-petition in substantially the form as the petition of the plaintiff. Neither of the parties set out the source of his title.

It appears herein that one Lena Shaner, then owner of the lands above mentioned, conveyed the land by warranty deed to the defendant, John P. James, the deed being dated August 10, 1940, and acknowledged on September 18, 1940. The deed bears on its face revenue stamps of the United States Government in the sum of 55c, and purports to be in consideration of $ 10 and other considerations. The deed was not recorded in Niobrara County, Wyoming, in which the land is situated, until March 14, 1941. On January 16, 1941, the same Len Shaner made and executed her warranty deed conveying the premises herein involved to the plaintiff, Lester A. York. The deed was acknowledged on January 16, 1941, and purports to be signed by the Grantor, by her mark, and was witnessed by the Notary Public, Oscar L. Berggren, and by Ethel A. York. The deed was duly filed of record in Niobrara County, Wyoming, on January 23, 1941. It purports to be in consideration of $ 1.00 and other good and valuable considerations, and bears no revenue stamp.

Upon the trial of the case the plaintiff York merely introduced in evidence the conveyance made to him by Lena Shaner and rested. Thereupon a motion was made by the defendant for a judgment in favor of the defendant. That motion was overruled. Thereupon the defendant introduced his testimony, but did not renew the motion at the end of all of the testimony. The defendant now complains that the court erred in overruling the motion he made at the time when the plaintiff rested. We need not determine whether that was right or not. In not renewing the motion after all the testimony was introduced he waived whatever error the court committed. Boyle v. Mountford, 39 Wyo. 141, 270 P. 537.

The defendant also complains of the fact that the court did not permit the defendant who was a witness in the case and who is, by profession, an attorney, to testify to the mental incompetency of Lena Shaner and the disease under which she labored, at the time of the execution of the deed to York. The point, however, is not argued and hence must be considered waived, under the ruling of this court. Wood v. Stevenson, 30 Wyo. 171, 217 P. 953, and other cases.

The main question herein is as to whether or not the judgment herein is sustained by any evidence. It may be noted that the deed to the defendant James was executed several months prior to the deed made by Lena Shaner to the plaintiff York, but was not recorded until after the conveyance to the plaintiff York had been placed of record. Section 97-135 Rev. St. 1931, provides that:

"Every conveyance of real estate within this state, hereafter made, which shall not be recorded as required by law, shall be void, as against any subsequent purchaser or purchasers in good faith and for a valuable consideration of the same real estate or any portion thereof, whose conveyance shall be first duly recorded."

And Section 97-102, Rev. St. 1931, provides that:

"The term 'purchaser,' as used in this article shall be construed to embrace every person to whom any estate or interest in real estate shall be conveyed for a valuable consideration, and also every assignee of a mortgage or lease, or other conditional estate."

The Supreme Court of California, in considering a like statute in the case of Bell v. Pleasant, 145 Cal. 410, 78 P. 957, 104 Am. St. Rep. 61, stated as follows:

"'A subsequent deed by the grantor to another person does not of its own force convey any title, for the grantor, having previously parted with his title, has left in himself nothing to convey and his deed alone can therefore convey nothing. It can only be effective, as against the first grantee, when supplemented by proof that it was first recorded, and that...