4 Wyo. 502 | Wyo. | 1894
Lead Opinion
On October 22, 1886, the Cheyenne Land & Live Stock Company, a corporation, made its deed purporting to convey'' to William W. Corlett and Truman B. Hicks “and their sue-' cessors in trust forever,” fifteen thousand two hundred and eighty-five and forty-nine one-hundredths acres of land, described by section, township 'and range, without using the word appurtenances or appurtenant or appendant, and without mentioning any water, wafer right, or irrigating ditch;, and a large amount of - personal property consisting of live' stock of the bovine and horse species, and ranch implements, farm utensils, blacksmith tools, etc., all being property appro-. priate to the business of a land and live stock company. The
This property was conveyed in trust for the equal pro rata benefit and security of certain first mortgage bonds, not exceeding the limit of one hundred and fifty thousand dollars, which said company proposed to issue, and did thereafter, issue, “without any preference or priority of any one bond over another by reason of any priority of the time of issue or negotiation thereof or otherwise.”
A copy of one of these bonds is in evidence and bears date of September first, 1886. It would seem that the bonds had been executed and were ready for issue at the time of the execution of the trust deed, but were not actually issued within the meaning of the deed until afterward.
The principal of said bonds becomes due and payable at the office of the Farmers Loan and Trust Company in the City of New York, on the first day of Septejnber, 1896, and interest at the rate of six per cent, per annum on the first days of March and September in each year. The trust deed provides that in case of default in the payment of the principal of any of the bonds or any interest when the same shall become due and within ninety days thereafter the entire prin-. cipal sum and interest becomes due and payable forthwith, at the option of the holder or holders of any of said bonds, and the trustees may then, at the request of the holder of any of said bonds, sell the trust property and apply the proceeds to the payment of the bonds after paying the expenses of taking and keeping the property and the charges and expenses of sale, paying the surplus, if any there be, to the party of the first part in the trust deed. William W. Corlett died prior to the commencement of this action. Truman B. Hicks, as provided in the trust deed, is acting as sole trustee. The trust. deed was filed for record on the twenty-fifth day of October, 1886, and was duly recorded.
On June twenty-seventh, 1889, Elise Frank obtained her judgment against the Cheyenne Land & Live Stock Company in the sum of fifteen thousand and ninety-six dollars, and on July first, 1889, caused execution to issue thereon, and on July third, 1889, caused such execution to be levied upon all the lands described in the trust deed and all the lands acquired by the Cheyenne Land & Live Stock Company after the execution of the trust deed, except one hundred and twenty acres. The sheriff of the county was proceeding to advertise and sell the lands so levied upon, when, on August fifteenth, 1891, this action was begun, and a temporary order of injunction sued out, restraining such sale. On final hear
On August twenty-fourth, 1891, Charles A. Badgette obtained his judgment against the Cheyenne Land & Live Stock Company, for the sum of one thousand and seven hundred and sixty dollars and forty cents. On August thirty-first he caused execution to issue. On September third, 1891, the sheriff of the county levied the execution upon the water rights and irrigating ditches in controversy. He was proceeding to advertise and sell them when, on September twenty-third, 1891, by supplen^ntal petition of Truman B. Hicks as trustee, a temporary order of injunction was sued out, restraining such sale. On final hearing the district court dissolved this injunction.
The trust deed in question was defectively executed and was not entitled to record. Although recorded the record was not constructive notice to any one of its contents. It is not a legal mortgage, but is effective between the parties as an equitable mortgage.
The informality in the execution of the trust deed in question is that there is no subscribing witness as required by statute, and that the acknowledgment is by the president alone, whereas the acknowledgment of the secretary is also necessary as one of the parties authorized by the resolution of the board of trustees of the company to execute the trust deed, and as the party having custody of the corporate seal. As between the parties the following seems to be a correct and comprehensive statement of the law applicable to such cases:
“A mortgage or trust deed which cannot be enforced by a sale under the power or by a judgment of foreclosure, on account of some informality (in a matter) requisite to a complete mortgage or deed of trust, will nevertheless be regarded as an equitable mortgage, and the lien will be enforced by special proceedings in equity. The attempt to create a security in legal form upon specific property having failed, effect is given to the intention of the parties, and the lien enforced*514 as an equitable mortgage. Any agreement between tbe parties in interest that shows an intention to create a lien may be, in equity, a mortgage. As stated by Judge Story, ‘If a transaction resolve itself into a security, whatever may be its form, and whatever name the parties may choose to give it, it is in equity a mortgage. Effect has been given in this way to a deed of trust in which the name of the trustee was accidentally omitted; to one from which a seal was omitted by mistake; to one sealed in fact but not expressed to be sealed; to one imperfectly acknowledged or not acknowledged at all; or not witnessed as a deed of real estate is required to be. But it seems effect will not be given to a mortgage witnessed, acknowledged and recorded, but not signed by the mortgagor/ ” Jones, Mort., Sec. 168.
Numerous authorities are cited on behalf of the trustee to the effect that the lien of a judgment creditor attaches only to the actual interest of the morgagor, subject to all equities existing against such interest in his hands, and that this is all that can be taken and sold on execution. Freeman states the rule thus: “In the absence of a statutory provision giving it some greater effect, an execution lien, like that of a judgment, attaches to the real rather than to the apparent interest of the defendant. If the title held by him is subject to equities of third persons the execution lien is also subject to such equities.”
This rule has been discussed so often and so thoroughly hy different courts and is so well established, that another discussion of it would not be profitable. For a full discussion with a voluminous citation of authorities, see case of Snyder v. Martin, 17 West Va. Rep., page 226.
Some cases are cited by counsel for the judgment creditors as sustaining a different rule. Most of these cases have arisen under statutes different from ours,, and which change the rule.
In Butter v. Maury, 10 Humph. (Tenn.) Rep., 420, the lien of a judgment creditor was preferred to an unregistered title bond. The statute provided that all instruments not registered in conformity thereto should be “null and void as to
Some Ohio cases are cited. The statute under which these decisions were made provided that mortgages should take effect from the time of their filing for record. The courts at first gave this language its literal meaning and held tha’t mortgages took effect even as between the parties thereto only from 4he filing of the mortgages for record. Afterward, this view was overruled and mortgages held to take effect as to the parties without filing or recording, but not as to any one else until filed. Building Association v. Clark, 43 O. S., 427. Under such a statute a judgment lien would, of course, take precedence of an unfiled and unrecorded mortgage.
Some Arkansas eases are cited. In that state the statute provides that “Every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the mortgage is filed in the recorder’s office for record and not before.” Under this statute judgment liens have precedence of unfiled mortgages. The latter are not liens. Main v. Alexander, 9 Ark., 112; Dodd v. Parker, 40 Ark., 536; Hawkins v. Files, 51 Ark., 417.
The case of Davidson v. Beard, 2 Hawkes Law and Equity, 520, is cited. The statute of North Carolina, under which this case was decided, was that every mortgage of lands, tenements, goods or chattels, which shall be first registered, shall be taken and held to be a first mortgage, any former or other mortgage not before registered notwithstanding, unless such prior mortgage be registered within fifty days after the date. Under this statute the court considered a subsequent purchaser or a subsequent incumbrancer, including a judgment creditor, as a subsequent mortgagee, and gave preference to the lien of a judgment creditor accordingly. If the court was right in holding that a judgment creditor is to be regarded as a mortgagee this decision is right. It follows from the premise stated. But. in so holding the court seems to stand alone. A judgment creditor is not to be regarded as a mortgagee, in the absence of a statutory provision to that effect.
Jones, in discussing judgment liens, states the law correctly
Again:
“An unrecorded mortgage is preferred to a judgment where the judgment creditor is not considered a purchaser within the recording acts; for a judgment lien or attachment is not protected by them; and a mortgage, being valid without being recorded, for all purposes except that of preserving its lien against bona fide purchasers or mortgagees, is valid against a judgment lien.” Id., Sec. 462.
A number of cases cited in which the preferred liens were not judgment liens, are not in point.
It should not be forgotten that a secret sale or incum-brance of real estate was valid at common law, even against subsequent purchasers or incumbrancers without notice. To prevent fraud effected by such secret sales and incumbrances, registration was invented and. has become common. Persons whom the recording acts protect in these matters are protected. Persons whom the recording acts do not protect are not protected. What persons are protected by our statute? It must speak for itself. “Every conveyance of real estate in this territory hereafter made, which shall not be recorded as provided 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.” Eev. Stat. Wyo., Sec. 18.
A judgment creditor, before sale of real estate by virtue of an execution issued upon his judgment, is not and cannot be, by virtue of such judgment and execution, a subsequent pur
It seems clear that the defectively executed trust deed was properly admitted in evidence, and that it is an equitable mortgage binding between the parties, and having precedence of judgment and execution liens acquired after the execution of the trust deed.
The deed of trust purports to convey to the trustees the “entire property” of the Cheyenne Land & Live Stock Company, more particularly described as lands, live stock, farm and ranching implements, etc., describing the lands by section, township and range, and giving the number of animals of the different classes, and mentioning the more important of the ranch and farming implements: “Also all property of like kind and character to that hereinbefore described which shall hereafter be acquired by said first party, together with all the corporate privileges, liberties and franchises of the said party of the first part.” There is no personal property involved in the litigation. If this clause does not suffice to convey after acquired real estate, then the trustees have no claim on it, and the judgment creditors may take it. The description of the lands come first, then the description of the personal property, then the clause last quoted. It is urged that this clause refers to the immediately antecedent description of property, which is a description of the personal property; and that it therefore includes in its meaning and operation only personal property of like kind and character to that described, and dees not so include real property. In support of this view it is argued on behalf of the judgment creditors that personal property is not of a like kind and character with real estate, and that consequently the language purporting to convey after acquired property cannot include both personalty and realty, but that it applies only to property of the kind and character the description of which is immediately antecedent to the language; that is, to personal property. This view is supposed to be strengthened by the consideration that our statutes authorize and provide for the
This last consideration seems, to the writer of this opinion, to be rather specious and ingenious than convincing. It does not appear that the company in executing the deed did follow the statute. It might have made the deed in its present form in the absence of any such statute. Under the statute it might have reserved important privileges which it has not reserved. It might have inserted a power to sell and dispose of portions of the property in the course of business and to replace it with property of like kind and character. It has inserted no such provision. And such privilege is important as enabling the company to carry on the business in somewhat the usual manner and to make it profitable. The authority of a corporation to convey its property, both real and personal, by mortgage or deed of trust, to take effect on property acquired after the execution of such mortgage or deed of trust, without statutory authority, and in the absence of statutory restriction, is too well established to be questioned or to require discussion. That seems to be all that the grantor has attempted to do in the present instance. It does not appear that any statutory authority has been invoked or exercised. No statutory privilege has been claimed.
It also seems that the construction limiting the application of the words “all property of like kind and character to that hereinbefore described” to the description immediately antecedent is very narrow, and not correct. The words “here-inbefore described” naturally include descriptions in any part of the instrument preceding the words. And the property described is declared to be the entire property of the grantor, and, as stated, is all property appropriate to the business of a land and live stock company. In this respect it is all property of like kind and character.
It is, however, a question as to the intention of the com
The bond, which is in evidence by proven copy, is, practically, a contemporaneous instrument. Whether contemporaneous or not, it refers to the deed of trust, and may be used to explain it. The bond is really part of a single business transaction for the raising of money, of which transaction the deed of trust is another part.
On the face of the bond appears the following words:
“This bond is one of a series of first mortgage bonds issued for the purpose of raising a part of the purchase money to pay for property purchased by said company, and to pay for property which may be hereafter purchased by said company, each of the denomination of one thousand dollars, numbered from one upwards. The payment of the principal and interest of each is secured by a first mortgage or trust deed bearing date the first day of September, A. D. 1886, conveying to W. W. Corlett and T. B. Hicks, of the City of Cheyenne, County of Laramie, Territory of Wyoming, in trust for the holders of said bonds, all of the property, rights, liberties, corporate privileges and franchises now or hereafter acquired by said company, as specified in said mortgage.”
Here is the company’s own construction of its deed, to the effect that it covers all property acquired by the company at the time of making the deed or thereafter.
Another question is raised as to the authority of the president and secretary of the company to execute a deed of trust to take effect on property acquired after the execution of the deed. It is not necessary to encumber this record with a discussion of the question of the authority possessed'by the president and secretary of the company to convey its property by deed of trust under the resolutions of the board of trustees of the company conferring their authority. It is not a question as to an act in excess of the corporate powers. A
It was claimed in argument that there was no evidence showing that the Cheyenne Land & Live Stock Company received any of the benefits resulting from the execution of the trust deed or from the issue of the bonds. It was in evidence, and not questioned or denied by any other evidence, that the company paid interest on the bonds to the extent of five semi-annual payments. If this can be explained on any other hypothesis than that the company had received value for the bonds no such explanation was attempted, and no evidence appears upon which such explanation can be based. The conclusion seems unavoidable that the lien of the trust deed, considered as an equitable mortgage, attaches to the lands acquired by the Cheyenne Land & Live Stock Company after the execution of the trust deed, and that such lien has precedence of the judgment lien of Elise Frank.
The water rights and irrigating ditches in controversy require a separate consideration. There are eleven of them: Horse Creek Ditch Nos. 1, 2, 3, 4, 5, 7, 8 and 9, and Timberline Ditch, Latham Ditch and South Horse Creek Ditch.
No mention of water, water right or irrigating ditch is made in the deed of trust of the Cheyenne Land & Live Stock Company. This company acquired title to the lands described in its trust deed and conveyed thereby to the trustees by three several deeds of the same date with the deed of trust. Two of these deeds were executed by A. H. Swan and Hiram B. Kelley, conveying to the company five hundred and sixty acres of the land. The other deed was executed by the Horse Creek Land & Cattle Company, conveying to the Cheyenne Land & Live Stock Company the balance of the fifteen thousand two hundred and eighty-five and forty-nine one hun
The trial court finds, and these findings are supported by the evidence, that all of these ditches and water rights have been used for the irrigation of portions of the land described in the trust deed in question, or upon lands acquired by the Cheyenne Land & Live Stock Company after the execution of the trust deed, or upon both, except Horse Creek Ditch 'No. 7. As to this ditch there is no finding. The evidence shows that the water from this ditch was used partly upon land of the Cheyenne Land & Live Stock Company, and partly upon other land the ownership of which is not shown. No other use of any of the water supplied by any of the water rights and ditches is shown or claimed.
Hpon these facts the trial court finds:
“That the ditches and water appropriations were, not appurtenances to the land at the time the said trust deed was executed, nor have they nor any of them become appurtenant to any of said lands at any time since the same was executed.” And further:
“That the lien of said defendant, Charles A. Badgette, under his execution and the levy thereof is prior to any right of said plaintiff herein upon the ditches and water rights levied upon by said Badgette.”
Hpon the question whether a right to the use of water for the purpose of irrigation, together with the necessary conduit fon conducting the water to the place where it is used, is appurtenant to the land irrigated or not, the courts of the states and territories in which irrigation is practiced are not in entire harmony. But this statement of the question is too narrow
The question involved is one of first impression in this state and its importance cannot be overestimated. To present the matter understandingly requires a discussion at some length of one or more representative cases from each of the states and territories in which the question in any form has been raised and decided in a court of last resort.
In the case of Bloom v. West, decided by the Colorado Court of Appeals in March, 1893, 32 Pac. Rep., 846, the parties on both sides deraigned title to both lands and water rights from the same source — Michael Bashor. By conveyance the lands of . Bashor were divided and each of the parties to the suit owned a portion of it. The litigation was as to the division of the water between these parties. The trial court decreed to the owners of each portion of the land a right to the use of a portion of the water “as an appurtenance to said land.” The court of appeals affirmed the decree as to the division of the water, but directed the district court to strike out of the decree that portion connecting the water with the land as an appurtenance. Both parties claiming title from the same source, and there being no adverse claimant, the land, the extent, number of acres irrigated, etc., was “regarded as data upon which an equitable division of the water could be based.”
In the course of the discussion of the case the court of appeals, after citing common law authorities to the effect that a thing corporeal cannot be appurtenant to a thing corporeal, but that the appurtenance must be a thing incorporeal, says:
We cannot ignore as judges what we know as men of the •general condition of the country.. As residents of the arid region, interested in its business conditions we know, and as lawyers and judges deriving our knowledge from reported cases we know, that there are vast quantities of agricultural land cultivated in the arid region and made valuable by the use of water the right to which depends upon a conveyance of the land without mentioning water, water right or irrigating ditch. ’ Land and water together' are of great value. The value of the land without the use of the water is trivial. And the conditions are such in many instances that if the owner of the land is deprived of the use of the water to which he has been accustomed he cannot procure other water. In other instances it can be done only at great expense.
As we have already said, the decision in the case of Strickler v. The City of Colorado Springs, and in the case of Bloom v. West, upon the interests involved in each case, were eminently just and equitable, in harmony with the authorities as we understand them, and their correctness is unquestionable. It is only dicta of the latter case, tending to establish a doctrine dangerous, as we conceive, to great property interests heretofore considered secure, that is questionable.
In the case of Bloom v. West, the court does not say that a water right is a thing corporeal, but treats it as such. Its argument seems to be, in short, a thing corporeal can not be appurtenant to land. A water right is a thing corporeal. Therefore a water right cannot be appurtenant to land.
The flow of water in a stream was at common law considered part and parcel of the realty, and a corporeal thing, and part of the property of the riparian proprietor. ■ But the right to take water from the land of another, and conduct it by pipes
Whoever grants a thing grants by implication that which is necessary to the beneficial use and enjoyment of the thing granted. To take away the water right by which agricultural land is irrigated in the arid region leaves the land more nearly useless and valueless than a mill without a kiln, or a saw-mill without a lumber-yard, or a water-mill without a dam. The water-mill may be moved and used elsewhere. The land cannot be. Another kiln or lumber-yard might be provided at comparatively small expense. In most of the arid region water rights furnishing sufficient water for the irrigation of farms have become quite valuable, and difficult to obtain in many localities at any reasonable expense.
The pipes used to conduct water to a dwelling house would pass at common-law by a conveyance of the house, because necessary to the use and enjoyment of the house in the usual manner, though they extend far beyond the premises granted, and might be replaced at small expense. The water right also passes. Whatever is necessary to the beneficial use and enjoyment of the thing granted, whether corporeal or incorporeal, passes at common law as incident or “quasi ap-pendant,” to the thing granted; but we must not call them appurtenances if they are corporeal things. They then pass as part and parcel of the grant.
.This doctrine of the common law has been very generally, if not universally, approved in the United States. The extent to which it has been carried is well illustrated by the ease of Donnell v. Humphreys, 1 Mont., 518. In that case there was a grant of ditches described in the conveyance as “the ditches known as the^ Silver Bow Ditch Company’s ditches, said ditches carrying water from Silver Bow Creek to Butte City and the placer mines in that vicinity, and more particularly known as the Humphreys and Allison ditches.” There were two ditches known as the upper and lower ditches which were known as the Silver. Bow Ditch Company’s ditches, and which carried water from Silver Bow Creek to Butte City and the placer mines in that vicinity, and which were
So far, in this decision, the writer of this opinion has purposely avoided any discussion of the meaning and proper use of the word appurtenant or appurtenance. And it seems that this and similar cases might be decided upon principles already discussed without any reference to either of these words. But the words constantly occur in the reports of cases arising in the arid region and involving water rights, and will be found continually occurring in the recent cases from which we must derive our principal assistance in endeavoring to arrive at a correct solution of the questions presented in the case at bar. It is important that we ascertain if we can, whether the authorities applicable and to which we must of necessity.resort, use these important words correctly or not. This is a consideration very materially affecting the weight of such decisions as authority. So far as we are at present advised no court has said that water rights may not be appur
Ho such rule applies under our system. Non-user for a much shorter time is an abandonment of the right.
It is further to be observed that the limitation above referred to of the right at common law of the owner of an estate to sell an easement appurtenant to his own estate separate from the estate was sustained merely from a consideration of the rights of the owner of the servient estate. It was not because the easement was not a property right, nor because it was inseparable from the estate to which it was appurtenant. But these easements lay in grant, and the owner of the servient estate having granted an easement for the benefit of any other estate, the terms of the grant could not be changed .by any one except himself or those succeeding to his rights.
Under our system there arises no question of servient and dominant estates. Water rights are obtained by appropriation and use for a beneficial purpose from the public waters of the United States or this State, under statutes authorizing such appropriation. By such appropriation the appropriator acquires not an absolute ownership in the water itself, but a right to its use which is considered as property and may be sold and conveyed as such. Strickler v. City of Colorado Springs, 26 Pac., 313, and authorities there cited. And there is no servient estate in question in such matter.
But so far as we are at present advised the case of Bloom v. West, supra, is the only authority for the proposition that a water right is a corporeal thing, or the further proposition ■that a water right may not become appurtenant to land. We
In the case of Cave v. Crafts, 53 Cal., 135, certain parties had purchased lands and received a conveyance which was silent as to water rights, and did not contain the word appurtenances. At the time of the purchase the lands were irrigated and had been for a long time prior thereto. The court says: “The use of the waters to the extent, at least, to which they had been previously employed, may have been, and, it is fair to presume was, the chief, perhaps the only inducement to the purchase by the plaintiffs and their grantors. To authorize, judicially, a diversion and material reduction of the waters, would be a violation of the principle that they took with all the apparent benefits and easements belonging to their purchase.” * * *
“The word 'appurtenances’ is not necessary to the conveyance of the easement. The general rule of law is that when a party grants a thing he by implication grants whatever is incident to it and necessary to its beneficial enjoyments.”
The case of Farmer v. Ukiah Water Co., 56 Cal., 11, arose upon the facts following: One Lamar was the owner of a house and about four acres of'land upon which he used water acquired by purchase of a certain water right from defendant. He sold the house and land with the appurtenances, not mentioning water or water right. He afterwards sold, or attempted to sell, the water right. Held, that the water right passed by the sale and conveyance of the house and land.
The recent ease of Cyne v. Benicia Water Co., 34 Pac. Rep., 714, decided Nov. 10, 1893, is to the same effect. Eliza I). Nichols owned a house and lands upon Paddy Ranch Creek. On July 5, 1883, she mortgaged the land. On November 5, 1883, by contract with the defendant company, she gave up her right to the flow of water in Paddy Ranch Creek, and procured from said defendant a water right for domestic use and the irrigation of a portion of the land. On April 20, 1889, the land was sold under foreclosure of the mortgage to plaintiff. Afterwards the company denied the plaintiff’s
In Montana it was held that where parties, having a pos-sessory right only to land, “conveyed their possession of the land with its appurtenances, they also conveyed their interest in the ditch and water right, which was necessary to the use, cultivation and enjoyment of the land, just as certainly and as fully as if they had described it in express terms in the deed itself.” Tucker v. Jones, 8 Mont. Rep., 225.
The same view is held in Washington, even where the purchase was of possessory rights only and was not by deed. Geddis v. Parrish, 1 Wash, Rep., 587.
And in Oregon, where the water right is considered as part of the improvements. Hindman v. Rizor, 27 Pac., 13. And as an appurtenance to the land. Coventon v. Seufert, 32 Pac. (Ore.), 508.
Thus it seems that the doctrine is very general in the states of the arid region that a water right becomes appurtenant to the land upon which the water is used, and the ditch, water-pipe, or other conduit for the water, becomes attached to the land either as appurtenant, or incident to the land and necessary to its beneficial enjoyment, and therefore becomes part and parcel of the realty.
We have seen that the doctrine of the common law is substantially the same, and really there appears to be vastly more weighty reasons, under conditions existing in this region, for holding that a water right is appurtenant to the land upon which the water is used than under conditions existing where the rules of the common law were developed. The disastrous results of separating the land and water are immensely greater here. And from considerations strictly legal and technical
It Avas assumed in argument on behalf of defendant Bad-gette that the mortgagor in possession might transfer the Avater rights separate from the mortgaged lands upon which the Avater was used, and that this power in the Cheyenne Land & Live Stock Company as mortgagor in possession is inconsistent Avith the doctrine that the water rights were appurtenant to the lands upon which the water was used. The conclusion might legitimately follow if the assumed premise were true. But it is not. A mortgagor in possession, like a tenant for life or for years, may not commit waste, and may be restrained by injunction if he attempts it. Waste is anything that damages the inheritance in the one case, or materially impairs the security in the other. There are few things which are adapted to accomplish both of these results to so great an extent as the deprivation of agricultural land in the arid region of the water necessary for its irrigation. It is true that by all the authorities the Avater right is separable from the land to Avhich it is appurtenant, and may be sold separate from the land, and the place of diversion and place of use may be changed. But this is only Avhen these acts are not injurious to the rights of others. Kidd v. Laird, 15 Cal., 152; Strickler v. City of Colorado Springs, 26 Pac., 313.
■ The Avater rights used upon the lands acquired by the Cheyenne Land & Live Stock Company after the execution of its
The case at bar seemed at first blush to be not free from difficulty, presenting some questions of very grave importance, and questions of first impression in Wyoming
But the apparent difficulties vanish on being -approached. There is no difficulty in holding that the lien of the trust deed in question attached to the lands acquired by the grantor in the trust deed, after the execution of the deed, and to all the interest of said grantor in all of the water rights in controversy, and that such lien has precedence of the judgment and execution lien of Elise Frank and of the judgment and execution lien of Charles A. Badgette. The authorities admit of no other conclusion.
Rehearing
ON RE-HEARING.
It is urged that the defectively executed trust deed held by the trial court and by this court to be an equitable mortgage, •became such only when declared to be so by the judgment of the trial court. We are of the opinion that such is not the law. The court did not make an equitable mortgage by its decree, but found one already existing, which it foreclosed.
Much has been said as to possible fraud. There is no scintilla of evidence tending to show fraud.
The defectively executed trust deed has been spoken of as a promise to execute a trust deed, or mortgage. It is more. It is an attempt to execute a legal trust deed, and the actual execution of an equitable mortgage.
• It is urged that an equitable mortgage does not take effect on after acquired property. Why not is not apparent. It would seem it should take effect, if at all, according to its terms, so far as these terms are lawful and valid.
Rehearing denied.