13 P.2d 564 | Wyo. | 1932
A petition for rehearing has been filed in the cause by respondent, presenting the contention that this court was mistaken in its conclusion announced in the opinion heretofore filed herein that the lien of the mortgage unsigned by Mrs. Mamie E. Bagley and held by respondent could not be enforced against the claim of homestead made by *457 her in the Wheatland town property. Several propositions are advanced in support of this contention.
It is said now as it was urged in respondent's brief before that no issue was made in the pleadings touching the claim of homestead right on the part of Mamie E. Bagley and it is also said that the view previously announced herein as declared by the well known text, 29 C.J. 880, § 245, that "evidence of the homestead right is admissible under the general denial" is unsupported by authority.
The text last mentioned cites the case of Crawford v. Richeson,
"It is objected to considering the homestead right in this case that it is not set up in the answer, and that so there is no averment in the pleadings to afford a foundation for admitting evidence of a homestead right. The bill avers that the bond was a lien upon the lands. The answers deny that the bond ever was a lien upon the lands. Under the issue formed upon this averment and denial, the evidence of a homestead right was competent. It went to show that the bond never was a lien upon the lands, — that they were exempt from the lien so that it never attached to them, and we think the evidence was admissible in disproof of the lien having ever attached, under the general denial that it ever attached, without the answer having set forth specifically the facts showing why the bond never did become a lien."
This holding certainly upholds the statement of the text aforesaid. Respondent's position is, however, that this case has been overruled by subsequent decisions of the Supreme Court of Illinois, viz: Gaither v. Wilson,
Our attention is directed to the case of Caudle v. Morris,
"Was it necessary for the defendant in her answer to have specially pleaded her claim in the land as her homestead interest? If so, the evidence offered and received was irrelevant and incompetent. The rule under the code pleading (similar to that under the old proceedings in ejectment) permits under the general issue-general denial-proof that a deed introduced as evidence of title was executed by a grantor wanting in capacity, and therefore, for that reason, void. Mobley v. Griffin,
The case of Marshburn v. Lashlie,
Some decisions from the courts of the state of Texas are noticed for our attention as supporting respondent's position but an examination of them and others from the same jurisdiction leads us to think otherwise. For instance, in Tyler v. Thomas, 297 S.W. (Tex.Civ.App.) 609, 611, the court said:
"In the present case the plaintiffs sued for title and possession of the property. The defendant denied the right of plaintiff to recover possession, but made no prayer for affirmative relief. In such case it has been uniformly held that any matter of defense, except limitation, may be proven under plea, of `not guilty.' Lumkins v. Coats, (Tex.Civ.App.)
"We therefore overrule appellant's contention that appellee Thomas could not prove, under his plea of `not guilty,' his homestead rights in the property in controversy."
This was said under a statute which allowed "any lawful defense to the action except the defense of limitation" in case of a plea of "not guilty." This holding was subsequently affirmed in Thomas v. Tyler, 6 S.W.2d 350, by the Commission of Appeals.
In Mutual Life Insurance Co. v. Summers,
"The general denial puts in issue all the averments of the complaint or petition and permits the defendants to prove any and all facts which tend to negative them."
Presenting a question analogous to that before us, where the enforcement of a mechanic's lien was sought and, under a general denial, evidence of defendant's homestead right was given for the purpose of defeating it, holding this procedure proper, in Security Mortgage Trust Co. v. Caruthers,
"The proposition propounded under this assignment is: `A mechanic's lien cannot be fixed upon the business homestead of the head of a family, unless through a contract signed by the husband and wife, and duly acknowledged.' There was evidence tending to show that the lot had been the business homestead of Cowan, and that it was his intention to continue to so use it at the time the building contract was made; while the contract under which the lien is claimed is signed by the husband alone. This defense was not specially pleaded, and the court refused to charge upon that issue. The proposition contended for by appellant is sound, but appellees urge that *461
this defense was not available to the defendant under the general denial pleaded. The main central fact alleged by the plaintiff is that he holds a mechanic's lien upon the building and lot in question, the foreclosure of which is sought to be obtained. No personal judgment for the debt is asked; the single object of the proceeding is the establishment and foreclosure of his lien. A general denial puts in issue every material fact alleged in the plaintiff's petition. Altgelt v. Emilienburg,
To the same effect is the case of Wilkerson Satterfield v. McMurry, 167 S.W. (Tex.Civ.App.) 275, where this language is found:
"The first assignment of error is as follows:
"`The court erred in permitting the defendants to prove that the lot upon which the building was constructed was claimed and occupied by Marion Conover as his homestead at the time of the trial, and that, at the time the contract was made, it was intended for his homestead, because it appeared from the pleading in the case that none of the defendants set up the fact that the property was homestead or was exempt from a mechanic's lien by reason of its occupancy or designation as such; said testimony having been objected to by the plaintiffs upon the ground that there was no allegation to support it, as more fully appeared in bill of exceptions No. 1.'
"This assignment is not well taken. The plaintiffs did not seek a personal judgment against either Tom Conover or Marion Conover. As against these defendants, plaintiffs only sought a foreclosure of their alleged materialman's lien on the house and lot involved in the controversy, and the defense that said property constituted the homestead of Marion Conover and his wife at and before the time the material was furnished by plaintiffs, and that no written contract had been made and executed by the wife, as required by statute, in order to fix a lien upon that character of property, was available under the general denial. It was distinctly so held by this court in Security Mortgage Trust Co. v. Caruthers,
It is unnecessary to pursue the matter of reviewing cited authorities further for to do so would unnecessarily lengthen this opinion. The cases referred to and relied upon by respondent as we read them — and we have examined them all — do not appear to touch the precise question with which we are at present confronted and, so far as we can see, the law is as stated in 29 C.J., § 245, supra.
In addition to the foregoing on the point raised, it may be observed further: In the opinion on file herein, it was stated in the course of our discussion of this contention as to the reception of evidence asserted to be extraneous to the issues in the case, that the claim of homestead right by Mamie E. Bagley was "undoubtedly litigated." An examination of the record discloses that both appellant and respondent introduced evidence relative to this claim of homestead in the town property made by Mrs. Bagley and no one appears to have objected and raised the question that the evidence was not within the issues framed by the pleadings.
In 2 R.C.L., p. 81, § 55, the rule is given as:
"Where the case is tried on the theory that certain issues have formally been raised, it cannot be objected for the first time on appeal that such issues were not in fact joined by reason of the absence of an answer, plea or replication by which they should properly have been raised."
And this court also, in Snyder v. Ryan,
"No objection whatever was offered to this character of testimony on behalf of the respondents in the lower court on the ground now alleged in this court, but on the *464 contrary the case, apparently from the record, was tried on the theory that the defense of good faith could be shown under a general denial, and there is a great deal of testimony along this line in the record, and it is too late now for the appellant to complain and try to allege the contrary."
It is now also insisted that, as the record shows that the Wheatland town property was purchased some eleven years ago, (July 1921) for $4,300, there is now a surplus of property value over and above the homestead value claimed and allowed by law, which, under the decision of Jones v. Losekamp,
Additionally, in this connection, it may be noted further that this contention was urged neither in the brief of respondent nor on the argument of this case. Relative to such a situation, this court has heretofore repeatedly held that a party asking for a rehearing may not set up any grounds in support of his petition different from those urged by him in his briefs and the original hearing. Allith-Prouty Co. v. Wallace,
It is said that the finding of the trial court upon this matter of Mamie E. Bagley's claim to a homestead right in the Wheatland town property was made upon conflicting evidence and was supported substantially thereby. These contentions were made in respondent's original brief and argument and were fully considered by us before the previous opinion herein was filed. Upon re-examination, we are quite unable to accede to respondent's views on the record concerning this point. As previously indicated, we think the evidence establishes without contradiction that Mrs. Mamie E. Bagley primarily obtained homestead rights in the property aforesaid which were never abandoned.
We are quite cognizant of the unwavering belief of counsel in the correctness of their contentions which have been advanced on both sides with industry and ability. The questions involved in the case are many and some can hardly be said to be free from difficulty. The authorities relied upon and reasons submitted have all been given a careful survey. Our ultimate conclusions are as stated in the opinion already in counsels' hands as that may be supplemented by this. It follows from what has been said that the petition for rehearing should be denied.
Denied.
KIMBALL, Ch. J., and BLUME, J., concur. *466