Matthews v. Nefsy

81 P. 305 | Wyo. | 1905

Beard, Justice.

The plaintiff in error, Joseph L. Matthews,, commenced this action in the District Court of Crook County, against the defendant in error, Ann Nefsy, alleging in his petition that he was the legal owner in fee simple and entitled to the immediate, possession of lot 1, block 29, of Bowman’s Addition to Sundance, Wyoming, and that the defendant, without right or title, unlawfully entered upon the premises and took possession thereof and has kept and still keeps plaintiff out of possession. The answer of defendant “denies that the plaintiff has a legal estate in the premises described in the petition, or is entitled to the possession thereof.”

The case was tried to the court without a jury, and the court found generally for the defendant and entered judgment as follows: “It is, therefore, by the court considered and adjudged that the plaintiff take nothing by said action. It is further adjudged and decreed that the defendant’s title to said property be settled and quieted so far as any claim which the plaintiff may have in this action against the same, said property being lot t, in block 29, in Bowman’s Addition to the Town of Sundance, Wyoming, and it is further ordered that the plaintiff pay the costs of this case.”

A motion for a new trial was denied, exceptions taken and plaintiff brings error.

The plaintiff claims title and right to possession of the lot in question under a deed executed to him as' the purchaser at a sale of the lot upon the foreclosure of a mortgage thereon. It is conceded that on January 2, 1893, one George Barton was the owner of the lot; and it appears that on that date he, joined by his wife, executed a mortgage upon it to the Bailey Loan Company to secure the sum of $300 evidenced by three notes of the same date and due January 1, 1896. The mortgage was acknowledged October 28, 1893, and filed for record November x, 1893. Plaintiff introduced the mortgage in evidence and then offered an assignment of it by the mortgagee to Mary Dickinson. This assignment is signed, “The Bailey Loan Co., l:w H. N. Johnson, Treas.,” and bears the seal of the company. The defendant objected to the offer for the reason that it did not show that Johnson, the treasurer of the company, was authorized to make the assignment and because it is not an assignment of the mortgage and note in controversy. The court reserved its ruling on this objection, to which both parties excepted; but there is nothing in the record from which we can ascertain how the court ruled upon the point; but it does not appear, however, that the assignment was read in evidence. The assignment describes the mortgage assigned by giving the names of the mortgagors and mortgagee and the book and pages of the record where it is recorded. This was sufficient identification of it. It appears from the testimony of the plaintiff that he knew about the note 'and mortgage back to the time of the assignment to Mrs. Dickinson, and that he had personal knowledge that she had them in her possession. This testimony is not contradicted. The notes and mortgage having been delivered to her by the company would tend to show that Johnson was authorized to make the assignment, and would amount to a ratification of his act in so doing, if it was done without previous authority from the company. We think the court erred in holding the assignment void, if it did so hold. The mortgage was afterwards assigned by Mrs. Dickinson to plaintiff — both assignments being recorded — and it was foreclosed by advertisement and sale of the lot August 16, 1902, the sheriff of Crook County conducting the sale, the plaintiff became the purchaser, and on the same day the sheriff executed to plaintiff a deed for the lot in pursuance of such sale, which deed was duly recorded and is the source of plaintiff’s title, if any he has. This deed was introduced in evidence; but counsel for defendant contend that if was insufficient to show title in the plaintiff, and that it was incumbent upon plaintiff to prove the regularity of each step in the foreclosure proceedings and to show a strict compliance with all statutory requirements as to notice of sale, the manner of its publication, and that the sale was conducted in strict accordance with the direction of the statute; and they claim, among other alleged irregularities, that the notice was signed by the sheriff, that it was not shown to have been published in a newspaper “printed” in Crook County or in the State of Wyoming, and several other objections of a similar character.

We do not agree with counsel in this contention. This is an action in ejectment and the legal title is all that is in issue. The mortgage contains a provision for foreclosure bjr notice and sale of the property, and the deed of the Sheriff recites that the sale was made in pursuance of this power, and that due and legal notice of the sale was given, and sets out in detail the contents of the notice, the manner of its publication and when, where and how the sale was conducted; and conveys the legal title to the lot to plaintiff, the recitals in the deed showing compliance with the terms of the mortgage and the requirements.of the statute. Where a sale is made under a power contained in a mortgage or trust deed, and a deed has been made to the purchaser at such sale by the trustee, or, as in this case, by the sheriff, it will be presumed upon collateral attack in an action at law that the requirements of the mortgage and of the statute as to notice have been complied with and' that the proceedings were regular; and that evidence, other than the deed and its recitals, is unnecessary to show the legal title in the plaintiff. In 2 Jones on Mortgages (6th Ed.), Sec. 1830, the law is stated as follows: “When the validity of a sale under a power is questioned, on the ground that the advertisement of the sale was not made in pursuance of the deed, the better opinion is that in an action at law it will be presumed, after the execution of a deed under the power of sale to the purchaser, that all the terms of the power and all requirements as to notice have been complied with. Certainly, in an action of ejectment by the purchaser against the grantor or other person in possession, no evidence aside from the deed to such purchaser and the recitals in it is necessary to show title and right of possession in the plaintiff. It would seem, moreover, that the defendant would not be permitted to prove that notice of sale was not given under the power, because the deed would confer upon the purchaser the legal title to the land.”

, In Windett v. Plurlbut, 115 Ill., 403, the action was forcible entry and detainer by a purchaser at a sale by a trustee, pursuant to the power in a deed of trust. The court says: “Appellee gave.in evidence, upon the trial in the Superior Court, among other things, the deed of trust, and the deed by the trustee to himself. Appellant, in defense, offered parol evidence to prove that the trustee in fact made no sale, that appellee had paid nothing for the propert), and that it was worth $30,000, and constituted appellant’s homestead; but the court held the evidence inadmissible, and refused to hear it — and this is the first and principal error for which it is contended the judgment below should be reversed. Very clearly the ruling was right. This is not a suit in equity to set aside the trustee’s deed, but an action at law, in which legal, as contradistinguished from equitable, principles must control.” Lunsford v. Speaks, 112 N. C., 608; Savings & Loan Society v. Deering, 66 Cal., 281; Fulton v. Johnson, 24 W. Va., 95, are to the same effect.

Plaintiff also offered in evidence the recorded affidavits of the publisher of the newspaper in which the notice of sale was published and of the sheriff who conducted the sale, being the record to perpetuate the evidence of the sale, and we find nothing in this evidence which shows affirmatively that the sale was not properly advertised and regularly conducted. A copy of the notice is contained in this evidence, and it shows that it was signed by the attorneys for the assignee of the mortgage as well as by the sheriff. The defendant offered no evidence whatever to show that due notice of the sale had not been given or that there were any irregularities in the proceedings which would render the sale void, if indeed she should be permitted to do so in this action. We think the evidence showed title in the plaintiff and his right to possession unless the defendant showed as good or better title in herself. At the time of the commencement of the action she was in possession of the lot claiming the title under a tax deed, dated October 31, 1898. This deed was introduced in evidence by the defendant and recites that it was made in pursuance of a tax sale held August 29, 1896, for the taxes of 1894 and 1895. Attached to the deed is a notice of the expiration of the time for redemption from tax sale, dated July 30, 1898, and addressed to George Barton, the owner, and to Bert Wade, the person in possession, notifying them that the time for redemption from the tax sale would expire August 29, 1898. Service of this notice was accepted by Barton and Wade August 29, 1898, the last day for redemption. Under the statute in force at that time (Sec. 1895, R. S. 1899), such notice was required to be served at least three months before the expiration of the time for redemption. It is, therefore, apparent that the notice in this instance did not confer any authority upon the treasurer to execute the deed. Since that time, however, the statute has been amended permitting notice to be given after the period for redemption has expired. (Ch. 16, Session Laws 1901.)

There is another reason why this deed did not vest in defendant any title to the lot in controversy. That is that the deed upon its face does not purport to convey that lot. Both the tax deed and the notice of expiration of the time for redemption describe the property as lot 1, block 29, in the town of the City of Sundance. Nowhere in the tax proceedings does Bowman’s Addition to the Town of Sun-dance appear. In the assessment and tax rolls there is a lot 1, block 29, in the Town of Sundance, and in the treasurer’s certificate of tax sale it is lot 1, block 29, apparently in Kimm’s addition.

For the reasons above stated, we think the District Court erred in finding for the defendant. Counsel for defendant concede that it was error to grant defendant affirmative relief under the pleadings. The judgment of the District Court is reversed and the case remanded for a new trial.

Reversed and remanded.

Potter, C. J., concurs. Van Orsdel, J., did not sit.