185 P. 719 | Wyo. | 1919
Lead Opinion
This is a case brought here by Clyde M. Watts, Administrator of the estate of Mary A. Edwards, with the will annexed, defendant below, by proceedings in error to review a judgment rendered by the District 'Court of Laramie County adjudging the defendant' in error, 'Charles P. Lawrence, plaintiff below, to be the owner of a special fund held by the Stock Growers’ National Bank as stakeholder and to which the plaintiff in error had asserted a claim.
On March 29, 1905, Mary A. Edwards, a widow, signed, executed, and delivered to her son, Charles P. Lawrence, defendant in error herein, a warranty deed describing the following lands situated in a then 'portion of Laramie County, Wyoming, to-wit: The east one-half of the northwest quarter, the southwest one-quarter of the northeast one-quarter, and the northwest one-quarter of the northwest one-quarter of section twenty-six in township fourteen north of range seventy west. Through error, the description included the northwest quarter of the northwest
In April, 1915, Mary A. Edwards died, leaving a will, which was admitted to probate, and one Albert Chapman appointed executor. Chapman having resigned, Clyde M. Watts was appointed, and has been, since January, 1917, the administrator of the estate of Mary A. Edwards with the will annexed.
Both Charles P. 'Lawrence and the executor of the will of Mary A. Edwards having demanded the condemnation money from the City of Cheyenne, it was finally, 'by stipulation of the parties, placed in the hands of the Stock Growers’ National Bank of Cheyenne to be held by it pending the litigation and turned over to the party to whom the ownership thereof was decreed, and the bank was made a party to the action.
The main contention upon which a reversal of the case is sought- by the plaintiff in error is that the deed or instrument above mentioned was invalid in that it was never delivered, and that it was testamentary in character and, not being executed with the formalities of a will, was ineffectual either as a deed or a will.
The basis of the contention that there was no delivery of the instrument is the fact that it was found upon the death of the grantor among some of her effects. The evidence in the case, however, shows that upon the signing of the instrument by the grantor she acknowledged to T. J. Fisher, Clerk of the District Court of Laramie County, Wyoming, “that she signed, sealed and delivered” the same “as her free and
Was the deed or instrument testamentary in character? In form it was a warranty deed. The consideration therein recited is “One Dollar and other valuable considerations”. The granting clause is that the grantor “has granted, -bargained, sold and conveyed, and by these presents does grant, bargain, sell and convey, unto said party of the second part and his heirs and assigns forever” the land first above described. There is a release by her of her homestead right in the premises. . The covenants on her part are that “she is well seized in the premises in and of a good and indefeasible estate-in fee simple”, and that “they are free from all encumbrances whatsoever except a certain lease given to one William F. Ferguson”, that “she has good and lawful right to sell and convey the same” and that “she will and her heirs, executors and administrators shall warrant and defend the same against all lawful claims and demands whatsoever”, “that the said party of the second part shall and may lawfully at all times hereafter peaceably and quietly have, occupy, possess and enjoy the said premises hereby granted or intended so to be, with the appurtenances, without the lawful hindrance or molestation of the party of the first part, her heirs or assigns, or of any other person or persons whatsoever, by or with his or their consent, privity or procurement.” There is also in the instrument, in typewriting, the following clause: “It is further understood and agreed by and between the parties hereto that the said C. P. Lawrence shall, within one year- after the decease of the said Mary A. Edwards, pay to Edward Lawrence the sum of Fifty Dollars, to John Lawrence the sum of Twenty-five Dollars, to Robert Lawrence the sum of Three Hundred Dollars, to Thomas Lawrence, Grandson, the sum of Fifty
The usual test applied to determine whether an instrument is a deed or a will is whether or not it passes a present interest or estate. If it ’creates or vests in the grantee a present estate, even though that estate be one which can not be enjoyed until the death of the grantor, it is a deed. “An estate is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment” (Kent, Vol. 4, p. 202).
Whether such an instrument as we have in this case creates such an interest is a matter upon which there is some conflict among the cases, but from an examination of the whole instrument, giving effect so far as possible to all its provisions, we are convinced that it operated to vest in the grantee an interest or estate at the time of its execution. In so holding we are, we believe, but following the weight of authority. Says the Kentucky Court of Appeals, in the case of John Hunt v. F. M. Hunt, 119 Ky. 42, 82 S. W. 999 (68 L. R. A. 181, 7 Ann. Cases 788), in upholding as a deed an instrument which provided that it was not to take effect until the death of the grantors, • “The rule followed rests on the ground that, as the instrument contains words of present grant, covenant of warranty, and the like, and is authenticated or acknowledged as a deed, some force must be given all the parts of the instrument, and such a construction must be given to it as will make the instrument effective, rather than one that would deny it any operation; and therefore the words that the instrument is not to take effect until the death of the grantor must be construed as a clumsy way of expressing that the deed is not to take effect in possession or in the enjoyment of the property until the grantor’s death.” The court further says on page 45 of 119 Ky; page 1000 of 82 S. W. page 182 of 68 L. R. A. (7
It is further contended that 'the evidence in the case is insufficient to show any error in the description contained in the deed, or to justify any reformation of the same during the misdescription.
As bearing upon this matter, we believe the record sufficiently shows the following to be the facts:
Eor the purpose of furnishing the description of the land to be conveyed, there was handed to the scrivener who drew the deed a patent to Hugh J. Edwards from the United States for lands known as the Edwards Homestead and a lease supposedly covering the lands mentioned in the patent (though as to just what lands were embraced in the lease can not be gathered from the record) ; that the. lands described in the patent were the east half of the northwest quarter and the west half of the northeast quarter of section twenty-six, township fourteen north of range seventy west; that these lands at the time of the signing of the deed were owned by Mary A. Edwards; that she did not at that time nor at any other time own the northwest quarter of the northwest quarter of section twenty-six; that it was the
Certainly it can not be presumed that the grantor intended to convey and the grantee intended to buy land to which the grantor had no title and never had any title, nor to which, so far as the record reveals, she ever expected to acquire any title. If there is any presumption at all it is that the grantor intended to convey and the grantee intended to buy lands which the grantor then owned and which she had the right to sell and convey.
No formal reformation of the deed was decreed by the lower court, but it .expressly found that the parties intended that the east one-half of the northwest quarter and the west one-half of the northeast quarter of section twenty-six should be conveyed, and the rights of the parties were determined upon' that basis. In this we see no error.
The plaintiff in error assails the amended and substituted petition of the defendant in error on the ground that it failed to state a cause of action, in that (a) The right of the defendant in error, if any, to the funds in question was in the nature of a claim against the estate and there is no allegation of presentation of said claim to the administrátor; (b) That the action is barred by the statute of limitations; (c) That the deed contains a condition precedent, the performance of which by him was not pleaded.
The contention that the right of the defendant in error to the funds in question was in the nature of a claim against the estate which had to be presented for allowance to the executor 'before suit js without merit. Whoever was the owner of the land was the owner of the condemnation money, for this money merely represented the land and was the fund in dispute. The gist of the whole controversy is, therefore, who was the owner of the land at the time it was condemned? Mary A. Edwards, the grantor, at the time of
The plaintiff in error did not raise the statute of limitations in the court below either by demurrer or answer, and he therefore waived it.
AVhether the clause in the deed requiring the grantee to do certain things within a year after the death of the grantor was a condition precedent or not, it was not necessary for him to allege his performance thereof under the facts in this case in order to state a cause of action. The defendant in error alleges, in his amended and substituted petition, “that he is the absolute owner” of the money held by the Stock Growers’ National Bank; that it was the money turned over to the bank by the 'City of 'Cheyenne in condemnation proceedings resulting in the taking of certain lands of which he was the owner and which he had purchased from Mary A. Edwards; and that the plaintiff in error was asserting a claim to the money in the hands of the bank.
The allegation that he was the owner of the money held by the bank was a sufficient allegation as to his title. He did not need to plead how he became the owner. It is true he alleges he was the owner of the lands condemned, and that he purchased these lands from Mary A. Edwards, but these were allegations of evidence which it was not necessary to plead. He was not required to plead a performance by him of the conditions precedent in a deed which con
The defendant in error at the trial of the case introduced evidence tending to show a performance by him of some of the obligations imposed upon him by the deed in question, and facts which tended to excuse a performance by him of the other obligations; and the plaintiff in error challenges the sufficiency of the evidence to show a performance or a legal excuse for the performance by him of these obligations.
The court below made an express finding of fact “That the grantee in said deed is not chargeable with default in the performance of any duty or obligation imposed upon him.” There is evidence in the record justifying this finding and it should not be disturbed.
Other questions are raised by the plaintiff in error in his brief which we have duly considered, but we deem their discussion unnecessary.
The judgment will be affirmed. Affirmed.
Rehearing
on petition eor rehearing.
This case was decided in an opinion handed down December 18, 1919, 185 P'ac. 719. A petition for a rehearing has been filed by counsel for plaintiff in error. The grounds upon which a rehearing is sought are on practically every point decided in the case; and the brief in support of the petition consists almost entirely of a re-argument of those
It is strenuously argued that the court was in error in its statement in the opinion that the statute of limitations not being raised in the court below, by demurrer or answer, was waived. And it is argued that by the former decisions.of this court that when it appears on the face of the petition that the action is barred, the petition does not state facts sufficient to constitute a cause of action, and the question can, therefore, be raised at any time, even on appeal. The cases cited hold that when it does so appear upon the face of the petition, it does not state a cause of action and is subject to a general demurrer; -but that is the extent to which those cases go, and do not decide that if the objection is not thus taken it is not waived. The point, however, was not necessary to a decision in the present case. The question in this case is, who owned the land at the time it was condemned by . the city ? Whoever owned it at that time is entitled to the condemnation money, and the fact that the defendant in error alleged in his petition that he was not only the owner at that time, but had been such owner for more than ten years prior thereto, and unnecessarily pleaded the source of his title, did not show that his action to determine his right to the money in the hands of the stakeholder was barred
It is also argued that the court did not consider an alleged error of the trial court in denying the motion for a new trial on the ground of newly discovered evidence. That point was raised by the motion for a new trial, but was not argued in the original brief, and was therefore waived (Bank v. Ludvigsen, 8 Wyo. 230; Phillips v. Brill, 15 Wyo. 521, 90 Pac. 443).
Considerable space in the brief is devoted to the contention that the judgment against the city was not proven. It was not necessary to offer evidence to sustain an allegation •of the.petition which was to all intents and purposes admitted in the answer. The agreement by which the money was deposited in the bank was attached to the original petition and made part thereof, and was unmistakably referred to and made a part of the amended petition; and the defendant in his answer admitted “that said bank occupies the position of stakeholder as to the funds involved in this action which have been deposited with it by said plaintiff and said Albert Chapman as executor of said estate of Mary A. Edwards, deceased.” And in the second paragraph of his answer he alleges: “That said Mary A. Edwards, deceased, was the owner of the lands described in plaintiff’s amended and substituted petition; that said lands were taken by the city of Cheyenne in condemnation proceedings; that the sum of $4,200.00, which is the money in controversy in this action, and which was deposited with said Stock Growers’ National Bank to be held until the ownership thereof should be settled and determined, is a part of the consideration for said land paid by the City of Cheyenne in said condemnation proceedings; that the judgment of court rendered in said condemnation proceedings was rendered during the lifetime
Rehearing denied.
