156 P. 27 | Wyo. | 1916
This action was brought in the District Court in Park county by Angus J. McDonald against John M. Baldwin and Virena Baldwin to foreclose as a mortgage a certain written contract between the parties for the sale to the defendants of 880 acres of land situated in said county, and to recover the amount of the purchase price and interest therein agreed to be paid and evidenced by a promissory note with three annual interest coupon notes thereto attached. Incidentally the petition contained averments in support of and a prayer for the appointment of a receiver to take possession of the lands, cultivate the same and collect and receive the rents and profits thereof, it being alleged that the defendants are in possession. An amended petition was filed alleging that for the purpose of securing the payment of the indebtedness represented by said note the defendants duly made, executed and delivered to the plaintiff their certain deed of general warranty conveying the said lands to the plaintiff, which was duly recorded in the proper
The original petition alleged the contract to be in truth and in fact a mortgage, and the amended petition aforesaid alleges that the deed and contract were made and entered into as security for the payment of the indebtedness represented by the said note. Upon a trial judgment was entered in favor of the plaintiff, foreclosing all the right, title and interest of the defendants in and to the said lands, quieting the plaintiff’s title thereto, awarding him immediate possession, and directing that a writ of possession issue for that purpose. The defendants have brought the case to this court on error.
Several errors are assigned relating to the proceedings anterior to the trial. The original petition was filed on April 14, 1915, and thereupon a summons was issued and duly served upon the defendants requiring them to answer on or before May 15, 1915. By an order entered April 17, a receiver was appointed and the defendants required to surrender possession of the lands to him within ten days after the service of a copy of the order upon them, and on April 23, 1915, the cause again came before the court for hearing on the motion of the defendants to vacate the order appointing a receiver, which motion was on that day sustained, and the receiver discharged; the order reciting that each of the defendants were present in person and by counsel. By an
By a' journal entry of that date it appears that the cause then came on for hearing on the motion of the plaintiff for
The argument that the time for answering the amended petition filed on May 12 had not expired is unreasonable and fallacious. It seems to be based upon the theory that the filing of the motion on May 19th for leave to amend by interlineation and notice thereof suspended or postponed the time for answer and that such time would run from the date the motion was filed and would not have expired until Saturday, June 19. But it is clear that the mere filing and notice of such a motion could not have any such effect; the answer day remained June 11, as fixed by the order of May 11, or not later than June 12, if the second amended petition is to be considered as filed without leave on May 12, for the third Saturday following the second Monday after such petition was filed was June 12. Indeed,
In view of the proceedings in this case, Section 4434 is not applicable. Conceding that since no answer or other
The plaintiff having offered to admit that said defendant would testify to the facts stated in the affidavit, the motion for continuance was overruled pursuant to the statute providing that upon a motion to postpone the trial of a cause on account of the absence of evidence, if the adverse party will consent that the absent witness will testify to the facts stated in the supporting affidavit as true, the trial shall not be postponed for that cause. (Comp. Stat. 1910, Sec. 5139.) The motion for continuance or postponement on the ground of the absence of evidence was, therefore, properly overruled. The answer was then filed, and the cause was set for trial on motion'of the plaintiff as above stated. The assignment of error based upon that action of the court is in these words: “That the court erred in forcing defendants to trial on the same day that plaintiff amended his second amended petition.” As above stated, the amendment was material only upon the question of the appointment of a receiver, and because of plaintiff’s admission that the defendant, John M. Baldwin, would testify that he was not insolvent, the defendants would have the benefit on the trial of that testimony disputing the fact alleged by the amendment, a sufficient reason, we think, for declining to hold that it was error to set the cause for trial on the ground that the petition had on that day been amended as aforesaid. But the motion for leave to make that amendment having been on file since May 19th the defendants could not have been surprised. Two terms of court in each year in said County of Park are prescribed by statute, beginning on the second Monday in May and the second Monday in November respectively. (Laws 1913, Ch. 129, Sec.
The trial court was in a better position than this court is to determine as to the good faith of the absence of the defendants, and whether further time should be granted to allow either of them to attend the trial; though we think there might be discerned in this record indications of a disposition on the part of the defendants to delay the proceedings as much as possible, and without any suggestion of a valid defense on the facts, except by the general denial of the answer, and the statement in the affidavit for continuance that it could and would be proven by one of the defendants that the allegations of the second amended petition are untrue, the sufficiency of which as a statement of facts expected to be proved by an absent witness is very much to be doubted. The holding in reserve of the affidavits for change of judge might be regarded as indicative of a purpose to delay the cause, for, although prepared and sworn to prior to May 11, they were not presented on that date when the order was entered allowing the amended petition to be filed and fixing the time for pleading thereto, nor until about the time set for the hearing on the application for a receiver. We are unable to say that the court abused its discretion in setting the cause for trial upon the merits, or on the whole record that such action was prejudicial to the rights of the defendants.
The statute provides: “It shall be the duty of the defendant, if he desires a jury trial, at the time of filing his answer, and of the plaintiff, if he desires á jury trial, at the time of filing his reply, or, if no reply be required, then within the time in which a reply is permitted, to filé with the clerk of the court a demand in writing for a trial by jury, and a failure to make such demand, accompanied with a deposit of twelve dollars as a jury fee, shall be deemed a waiver of a trial by jury.” (Laws 1915, Ch. 66, Sec. 1, amending Sec. 4514, Comp. Stat. 1910.) The order of said date denying the demand recites that it appearing to the court that said application for a jury trial was not filed at the time of filing the answer, but after the answer had been filed, and it further appearing that the action is one in equity for the foreclosure of a mortgage and the appointment of a receiver, the court finds that the demand for a jury trial was not filed in time and further that the defendants are not entitled to a jury trial as a matter of right. It is contended in support of the exception to the ruling that the defendants were entitled to the whole of the day in which they were required to file an answer to file a demand for a jury trial.. Whatever the rule might be where a defendant has the entire day in which to answer we think the statute cannot be construed as extending the time for filing such demand by a defendant beyond the time fixed for filing the answer, or beyond the stated hour or time of the day that the answer is required to be filed. It seems to be the intention of the statute that the two acts, — the filing of the answer and the filing of a demand for jury trial — shall be concurrent, though it might, perhaps, reasonably be held that where the defendant has the entire day in which to file his answer the two acts will be concurrent within the meaning and intent of .the statute if the answer and such demand are both filed on that day, or on the same day within the time allowed. For the reason that the demand was not
The contract appears to have been entered into on September 20, 1913, and the notes, that is to say, the principal note and the interest coupon notes, bear the same date. By the'terms of that contract the plaintiff agreed to sell to defendants certain lands therein described (the same lands described in a preceding paragraph of the petition as conveyed to the plaintiff by the defendants by a warranty deed dated October 20, 1913) and the defendants agreed to pay to the plaintiff within three years from the date of the agreement the sum of $19,390, as follows: “the entire amount named herein on or before three (3) years from the date hereof, evidenced by one principal note with three (3) coupon interest notes attached, with interest at the rate of ten (10) per cent per annum from date hereof, to be paid annually in each year, on the whole sum from time to time remaining unpaid”; also to pay all ordinary taxes assessed for revenue purposes upon the premises, or any part thereof, subsequent to the year 1912, “and also all other assessments which now are, or may be hereafter, charged or assessed upon or against the premises, or any part thereof.” It is further provided by the contract that in case of a failure to pay said taxes or assessments, and the plaintiff shall pay the same, the amount of such payments made by him, with interest from the date of payment, shall become an additional consideration and the payment thereof shall be made by the defendants for “the premises herein agreed to be conveyed.” The execution and delivery of a deed by the plaintiff to the defendants is provided for upon the pay
It is prayed by said second amended petition in substance as follows: 1. That the plaintiff have and recover judgment for the principal sum stated with interest thereon as alleged in the petition. 2. That the plaintiff have judgment for the amount of the taxes paid as aforesaid with interest.. 3. That the deed and contract be adjudged and decreed to be a mortgage, and that a decree be entered foreclosing the right and interest of the defendants in the premises including their equity of redemption. 4. That the decree may order the sale of said mortgaged premises according to law and the practice of the court, and the proceeds applied to the payment of the amount due to the plaintiff. 5. That the defendants and all persons claiming under them subse
Upon the trial the only witness examined or produced by either party was the plaintiff, who was sworn as a witness in his own behalf. He identified the note and the attached coupon interest notes and the signatures of the defendants thereto and the same were received in evidence without objection. He also testified that no part of the indebtedness had been paid; that the first coupon note for $1,939, due September 20, 1914, was not paid; and he identified the signature of the treasurer of Park County to certain tax receipts, which were introduced in evidence, showing the payment of the taxes on the property in question for the year 1914 by the plaintiff, amounting in the aggregate to $202.16. He was then asked what the defendants did, if anything, to secure the payment of the indebtedness at the time he received the note and coupon notes. Pie answered that he had a deed to the land executed by John M. Baldwin and his wife, Virena Baldwin. In response to succeeding questions he state'd that there was a contract between him and the defendant relating to the same land, “by which he was given three years to redeem by paying the interest and taxes annually for three years”; that there
Q. Mr. McDonald, in your direct examination, you testified you had a deed to this land, did you not? A. I have. Q. Isn’t it a fact, Mr. McDonald, that just prior to the instituting of this suit that you served notice on the defendant to vacate the premises? (Plaintiff objects to the question as irrevelant and immaterial. Objection overruled. Plaintiff excepts.) A. I did. Q. Why did you serve that notice? A. Because I thought that under the conditions of that deed, the land was mine without any further ceremony. Q. Then at the time this deed was made, it was your intention that the deed should be an absolute transfer of the title to that property? (Plaintiff objects to the question as asking for the legal conclusion of the witness. Objection sustained. Defendants except.)
Mr. Rich: If your Honor please, I will make this admission. I will make the admission that the absolute title to the property is in the plaintiff, Mr. McDonald, and that at the time the deed was made, it was made and intended by the parties at the time, that the title should pass to the plaintiff in this case and that they entered into a contract of a conditional sale between the parties. I am willing to make that admission in the record, and I would like to ask another question or two to show your Honor that this is true.
Q. Mr. McDonald, is that not true, that admission that I make? (Plaintiff objects to the question. Objection over.
The trial appears to have stopped there, without any further offer of evidence by either of the parties. And thereupon the court rendered the following judgment, from which, in quoting it, we omit the description of the land:
“Now, to-wit, on this 18th day of June, 1915, this matter coming on to be heard, upon the pleadings and files in said action and upon the evidence introduced upon the part of the plaintiff, the plaintiff appearing by himself and his attorneys, Messrs. E. E. Lonabaugh and W. E. Walls, and the defendants appearing by their attorneys, Messrs Brome and Rich, and the court having heard the evidence offered and introduced upon the part of the parties, and the defendants and each of them having stipulated into the record that the legal title to the real estate in question is now in the plaintiff, and it appearing to the court that the defendants have wholly failed to comply with their part of the agreement and having failed to pay any part of the indebtedness or the taxes levied against said real estate, and that by reason thereof they have forfeited all right, title and interest in and to the hereinafter described real estate.
“It is ordered, adjudged and decreed that the title in and to the following described real estate, to-wit, (the lands being here described), together with all water, water rights, and water ditches, as well as the rights to the use of the said ditches for irrigation and domestic purposes, used in connection with the above described lands and appurtenant thereto, and all improvements of whatever kind or nature thereon situated, be and the same is forever quieted in the plaintiff, and the defendants are forever barred and fore*132 closed from any right, title'or interest in and to the above described real estate, and
“It is further ordered, that the plaintiff have immediate possession1 of the above described premises and that a writ of possession issue to him therefor, and that he recover his costs hefein, taxed at $73.35. To all of which the defendants at the time by their counsel duly excepted.”
Counsel for plaintiff in error seem to understand this judgment as one merely quieting the title of the plaintiff and granting him possession of the premises, and contend that it goes outside of the issues. Opposing counsel refer to it as a decree cancelling the contract of sale and quieting plaintiff’s title, and contend that the petition should be considered as amended so as to sustain such judgment, and that the court having acquired jurisdiction to grant the equitable relief could properly grant all other necessary relief such as awarding possession to the party entitled thereto. The plaintiff would not be entitled to a judgment quieting his title as in the statutory action provided for by Section 4964, Compiled Statutes, 1910, for the plaintiff in such an action must allege and show that he is in possession either by himself or tenant, and here the plaintiff was not in possession. It is suggested in the brief of defendant in error (plaintiff below) that he was in possession by tenant under that provision of the contract declaring that upon his election to consider the contract at an end after a default in payment the defendants shall be considered tenants at will. That might be sufficient possession as against a third party out of possession claiming adversely to the plaintiff, but we-cannot construe the statute as permitting one to maintain the action against, his alleged tenant who is in possession and claiming an estate or interest adverse to him. By statute in some states an action to quiet title may be maintained by one out of possession. (See Mitchell v. Black Eagle Min. Co., 26 S. Dak. 260, 128 N. W. 159; Ann. Cas. 1913B, 85.) And the statute has been amended in Ohio so as to permit it in some cases. (Raymond v. Railway Co., 57 O. St. 271, 48
But the judgment does not contain a provision cancel-ling the contract and we doubt if that would be an appropriate remedy. Nor do we understand the judgment as intended to-rest upon the authority of the provisions of Section 4964, or as granting possession under Section 4966, Compiled Statutes, which authorizes the recovery of real property by one who states in his petition that he has a legal estate therein, and is entitled to the possession thereof, and that the defendant unlawfully keeps him out of possession; the code or statutory action intended as a substitute for the common law action of ejectment. On the contrary, we think the judgment is to be considered as based upon equitable principles 'foreclosing the right, interest and equity of the defendants in and to the lands in question under the contract aforesaid, and awarding possession as an ancillary equitable remedy to enforce the decree of foreclosure; a remedy often used and held proper in ordinary foreclosure proceedings, and even to put the purchaser in possession where the property has been sold under the decree, though some of the cases hold that the writ, usually called a writ of assistance, but in our statutes writ of possession, should not be granted in the original decree but upon a subsequent application in the cause and a showing of the existence of the conditions subsequent to the decree entitling the party or applicant to such writ. (2 Jones on Mortgages, 6th Ed., Secs. 1562, 1663-1666, & cases cited; 2 Wiltsie on Mort: Foreclosure, 3rd Ed., Secs. 681, 723-731; 3 Pomeroy’s Eq. Jur., 3rd. Ed., Sec. 1228; Bird v. Belz, 33 Kan. 391, 6 Pac. 627; Watkins v. Jerman, 36 Kan. 464, 13 Pac. 798; Goit v. Dickerman, 20 Wis. 661; Landon v. Burke, 36 Wis. 378; 27 Cyc. 1647.) And if not objectionable on other grounds the judgment might be modified by excluding the part quieting plaintiff’s title, if that specific relief should be deemed improper.
“The remedy by strict foreclosure of land contracts cannot be resorted to in all cases. The remedy being a harsh one, courts of equity will decree a strict foreclosure only under peculiar and special circumstances. Applications of that character are addressed to the sound legal discretion of the court, and they will be granted in cases where it would be inequitable to refuse them. If the vendee or purchaser has not been guilty of gross laches, nor unreasonably negligent in performing the contract, a strict foreclosure should be refused on the ground that it would be unjust, even though the vendee may have been slightly in default*136 in making of a payment. So, for the same reason, a strict foreclosure will be denied where the premises have greatly increased in value since the sale, or where the amount of unpaid purchase money is much less than the value of the property. On the-other hand, if the vendee, without sufficient excuse, fails to make his payments according to the' stipulations of his contract, and for an unreasonable time remains in default, the vendor may have a strict foreclosure of the contract for the sale and purchase of the land, unless some principle of equity would be thereby violated.” In Hardin v. Boyd, supra, the land was ordered to be sold in satisfaction of the lien! And though a judicial sale is not necessary to transfer title we think it would not be improper to order a sale as on the foreclosure of a mortgage if the court should deem that the more equitable manner of granting the relief, under -the circumstances of the case. The section in the Ohio code corresponding to our Section 4612 has been amended so as to require a sale whenever any specific lien is enforced.
While this judgment appears to have been framed upon the theory of a strict foreclosure of the contract, it materially departs from the usual form of a strict foreclosure decree, in that it fails to allow the defendants any time in which to pay the amount due. The form of such a decree as shown in all the books, so far as we have been able to ascertain, and certainly as generally employed, is to require the defaulting party to pay the amount due within a reasonable time to be fixed by the court in the excercise of its sound discretion, or to be forever barred of his right to redeem. (39 Cyc. 1875; 2 Jones on Mort. (6th Ed.) Secs. 1539, 1541; 2 Wiltsie on Mort. Foreclosure (3rd Ed.) Secs. 976, 977; 3 Pomeroy’s Eq. Jur. (3rd Ed.) Secs. 1227, 1262; Warner Bros. Co. v. Freud, 138 Cal. 651, 72 Pac. 345.) The remedy of a strict foreclosure of mortgages was based upon the original conception of a mortgage', that it was a conditional sale of the land rather than a mere security; and hence it was said to be consistent with that doctrine that the
Following the theory of a strict foreclosure, therefore, we think it proper that the defendant should be allowed by such a decree a reasonable time in which to pay the amount due, and that this judgment ought not to be affirmed unless it can be modified in that respect. The judgment might be so
We think it proper to say, however, that a judgment based on proper findings and correct as to form foreclosing the interest and equity of the defendants under the contract would have been supported by the evidence, assuming that the admission of counsel for defendants on the trial brought into the evidence the deed and contract alleged in the petition; and we are inclined to the opinion that it might have that effect. Those papers were not otherwise produced in evidence. Btat the said admission was clearly intended by counsel making it, and understood by opposing counsel and the court, to refer to the deed and contract mentioned in the petition. It was a judicial admission of a fact, for, taken in connection with the subsequent cross-examination of the witness McDonald, which was for the expressed purpose of corroborating the truth of the admission, it was declared that at the time the deed was made it was intended by the parties to convey the absolute title to the plaintiff, and that the contract was merely one of sale, or as stated by counsel in the admission “a conditional sale.” Such an admission has the effect, as said by Professor Wigmore, in his work on evidence, “of a confessory pleading, in that the fact is thereafter to be taken for granted;, so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it.” And he adds: “This is what is commonly termed a solemn—i. e., ceremonial or formal—or judicial admission, and is, in truth, a substitute for evidence, in that it does away with the need for evidence.” (Wigmore on Ev., Vol. 4, Sec. 2588.) In’ Chamberlayne’s Modern Law of Evidence, at Section 1239, it is said: “Should a legal representative announce in open court that he agrees, for the purposes of the case, that a certain fact exists, the only
Such a judgment would also be sustained by the petition on which the cause was tried, although relief was prayed on the theory that the transaction was a mortgage, and it was alleged that the deed and contract were executed to secure the payment of the indebtedness, for an amendment might have been allowed by adding in the appropriate paragraph a prayer in the alternative for the foreclosure of the contract and the interest and equity of defendants thereunder, if it should be found that the transaction was not a mortgage, and that the absolute title was vested in the plaintiff •subject only to the right of the defendants under the contract. The identity of the transaction would be the same and the object of the suit would not be materially changed, such object being to foreclose whatever right the defendants may have in and to the premises. It would be the duty of the court to find upon the facts the nature of the transaction and decree the appropriate reliefand any relief consistent with the facts alleged, if sustained by the evidence, would be proper. (Coffinburg v. The Sun Oil Co., 68 O. St. 488, 67 N. E. 1069; Tiffin Glass Co. v. Stoehr, 54 O. St. 157, 43 N. E. 279; Culver v. Rodgers, 33 O. St. 537; Riddle v. Roll, 24 O. St. 572; Johnston v. Myers, 138 Iowa 497, 116 N. W. 600; Bradburn v. Roberts, 148 N. C. 214, 61 S. E. 617; Missouri K. & T. Ry. Co. v. Murphy, 75 Kan. 707, 90 Pac. 290; Hiatt v. Parker, 29 Kan. 765; Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. 771, 28 L. Ed. 1141; Joseph v. Decatur Land, I. & F. Co., 102 Ala. 346, 41 South. 739; Romanoff Min. Co. v. Cameron, 137 Ala. 214, 33 South. 864.) Under the admission aforesaid as to the intention of the parties and the effect of the deed and contract, if accepted by the oppos
The petition aforesaid alleges the facts of the execution and delivery of the deed, notes and contract, the failure to pay as provided in and by the notes and contract, that the whole sum has become due and payable, and that the defendants are in possession of the premises. The plaintiff may have been mistaken in his theory of the legal effect of the transaction, but that ought not to prevent his obtaining the relief which the facts entitle him to. No good reason is perceived for requiring the plaintiff, under such circumstances, to bring another action where the same question would again be litigated. If there was an antecedent indebtedness, or the creation of a debt at the time independent of the promise in the contract to pay the purchase price, the transaction would probably be a mortgage. But a deed and contract to reconvey may be executed under such circumstances that they will not constitute a mortgage. As said in Pomeroy’s Equity Jurisprudence (3rd Ed., Sec. 1194) they “may be what on their face they purport to be, — a mere sale with a contract for repurchase, — or they may constitute a mortgage.” “Whether any particular transaction does thus amount to a mortgage or to a sale with a contract of repurchase must, to a large extent, depend upon its own special circumstances; for the question finally turns, in all cases, upon the real intention of the parties as shown upon the face of the writings, or as disclosed by extrinsic evidence.” (Id., Sec. 1195.) (See also Bigler v. Jack, 114 Ia. 667, 87 N. W. 700.)
In the case of Hardin v. Boyd, supra, where one had executed a title bond, reciting the sale to the purchaser of certain lands for a specified sum to be paid in a particular manner, and providing for a conveyance to the purchaser
In Hiatt v. Parker, 29 Kan. 765, the plaintiff alleged that he had conveyed certain lands to the defendant, upon the consideration that the defendant should keep and take care of him during his life, and that as part of the same transaction, the defendant executed to the plaintiff an instrument in writing denominated therein a mortgage and purporting to reconvey the premises to the plaintiff as security for the performance of the contract to keep and care for him. The petition further alleged that the defendant had failed and refused to perform his part of the contract and prayed for a decree rescinding the contract and declaring it void, and that the title conveyed by deed be reinvested in the plaintiff; or, if the instrument shall be considered a mortgage, that an account be taken of what plaintiff ought to have received, and the same adjudged a first lien on the premises, and that foreclosure be decreed. The court held the transaction to be a mortgage; that an alternative prayer is proper where the plaintiff has doubts as to how much or what kind of relief he is entitled to and that the petition stated sufficient facts to constitute a cause of action for foreclosure, though the prayer was held defective for not stating the amount of the judgment demanded.
In Romanoff Min. Co. v. Cameron, supra, the Alabama court said: “It may be conceded that the mortgage sought to be foreclosed by the bill was invalid and yet, the decree
For the reason above stated as to the form of the judgment and the insufficiency of the findings to permit of a modification thereof the judgment will be reversed and the cause remanded for a new trial.
Reversed and remanded.