187 P. 931 | Wyo. | 1920
The only controversy in this case in this court is between the plaintiff in error, Robinson Mercantile Company, and the defendant in error, The Upton Lumber and Hardware Company, The Upton Lumber and Hardware Company claiming to be the owner of two hundred acres of land situated in Weston county, upon which the Robinson Mercantile Company claims a lien by virtue of a certain judgment. The court found in favor of The Upton Lumber and Hardware Company and entered a judgment and decree accordingly, from which the Robinson Mercantile Company brings the case here by proceedings in error.
The facts as they appear by the record are that, December 15, 1909, William H. Ware made final homestead proof and received the receiver’s receipt for the N. ¿4 of the N. W. J4, the S. E. J4 of the N. W. J4, and the N. E. % of the S. W. °f section 35, township 48 North, Range 67 West of the 6th principal meridian, containing 160 acres. That he received a patent therefor from the United States July 12, 1913. That December 29, 1909, Henry E. Ware and wife gave to said William H. Ware a warranty deed to the
Counsel for plaintiff in error attacks the validity of the Upton Co. mortgage on two grounds. First, that it is not made to any person or corporation, the mortgage being given to “The Upton Lumber and Hardware Company”. Second, “The mortgage does not state whether the township is north or south, or whether the range is east or west, and the description of the land is given entirely by abbreviations instead of words, to designate the portions of sections”.
Neither of those objections are good. No authorities are cited by counsel in support of either. As to the first, the decisions are to the contrary. In Barber v. Crowell, 55 Neb. 571, that court said: “But, on the assumption that the mortgagee was a partnership or unincorporated association, it is contended that it could not take title to real estate, and that the mortgage was, therefore, a nullity. It is undoubtedly true that a conveyance of land will be ineffectual to pass the legal title unless made to a grantee having capacity to receive it; and it is also true that a partnership possesses no
The mortgage was a valid lien from its date upon the 160 acres of land in section 35, and the sale thereof on foreclosure, and the period for redemption having expired, the lien, if any, of the judgment of the Robinson Mercantile
The 40 acres in section 26 is in a different situation. While it is stated in the brief of counsel for defendant in error that “a final receipt as a desert land entry was issued to Henry E. Ware Aug. 22, 1907,” for that 40, and the court found that at the time of the execution of the mortgage by William H. Ware and wife to The Upton Lumber and Hardware Company, Henry E. Ware had made his final desert entry proof thereon, the record fails to support that finding. Such receipt, if it had been issued, was not offered in evidence, nor can it be found in the record. We have searched the record in vain for evidence showing such to be the. fact. There is nothing in the record showing that ■ Henry E. Ware had any title either legal or equitable to this land prior to the date of the patent, December 26, 1913, or showing that he had made final proof thereon prior to the
Affirmed in part and reversed in part.