Lee v. Cook & Corey

2 Wyo. 305

• Court: Wyoming Supreme Court
• Decided: March 15, 1880
• Status: Published

Opinions

Seítek, C. J.

This case was an action brought by the plaintiff in error here as plaintiff in the court below, held in' and for the county of Uinta, against the defendants in error here, who were the defendants below, to recover the possession of a lot of land in Evanston, Uinta countv, in this Territory, and damages for tbe detention thereof. The petition which originated the case in the court below, is in the nature of an action of ejectment, and for all purposes has been and should be treated as such.

The defendants in their answer admit their possession and detention of the premises at the time the action was brought, but deny ownership in the plaintiff, and his right of possession and recovery in this action.

The case was tried in the court below without a jury, and the findings of the court below were for the defendants, and judgment was rendered for the defendants for their costs. The plaintiff in error has brought his case here properly, to the end that the judgment of the court below may be reviewed and vacated, reversed or modified, if to this court there shall seem to be error requiring it to do so.

The plaintiff in the court below, to maintain his ease, produced a deed from A. L. Foye and Amanda E. Foye, his wife, dated October 26, 1875, and recorded November 15, 1875, for the lot and buildings in controversy. He also offered one C. M. White, to prove that Amanda E. Foye was the owner of this property on the 15th of November, 1875, an effort or effect to nullify the deed just recited, for the force of the deed of October 26, 1875, recorded November 15,1875, seems to us to put the title of the property on the 26th of October 1875, in A. L. and A. E. Foye, and not in A. E. Foye alone, and that the title of A. L. and A. E. Foye passed as of that date to Alfred Gr. Lee as between themselves, and vested as of October 26, 1875 in Alfred G. Lee as between Lee and the Foyes, whatever they then had to pass of title in and to said property. In so far as this testimony was offered to show that A. L. Foye had no ownership in this property, we think it unimportant for Lee’s side of the case. If A. L. Foye had no right in this property and Amanda E. held it as a feme sole, why then should A. L. Foye have been joined with her in the conveyance ? Was it necessary? Clearly Lee thought so, for we find him relying upon a deed in this cause to which A. L. Foye was a party — that dated October 26,1875, and recorded November 15, 1875.

In all proceedings in ejectment the authorities lay down, three essential things to be alleged and proved :

I. The plaintiff must prove that he has the legal estate in the premises at the time of the demise laid in the declaration (here the petition.)

II. That he had also the right of entry.

III. That the defendants or those claiming under them, were in possession at the time the declaration (here the petition) in ejectment was served.

The first proposition necessarily implies that the plaintiff should set forth his legal title in his declaration (petition) i. e. his demise, the conveyance under and by virtue of which he relies to maintain his action. This he failed to do. The defendants .did not demur, but filed a paper asking for a more explicit declaration, but this they afterwards withdrew and filed their answer, so that they apparently waived this defect, and so the plaintiff without raising by the proper pleading a right to offer his deed of October 26, 1875, recorded November 15, 1875 in evidence, yet offered it and it was received without objection in evidence.

The second proposition for the plaintiff to establish was his right of entry at the time of the demise laid in the declaration. And here the plaintiff absolutely offered a witness to prove that Mrs. Foye was the owner of the premises in question on that day, an effort in effect to nullify the deed of October 26,1875, and certainly clouding by its statement the ownership of that day, if parol testimony was admissible for this purpose or for the purpose of impeaching as between Lee and the Foyes, the recital of the deed of November 15, 1875, whereby the property, in controversy was sought to be conveyed to Lee; but relying on the deed as we must, let us grant that Lee had the right of entry to the premises in controversy, though it may have been that eo instanti upon the sale by the Foyes to Lee, that Lee may have carved out a lease for one year, and was not entitled then to the possession, and Mrs. Foye was by virtue of that lease made after ten o’clock of that day, for the deed is shown to have been recorded at ten o’clock of that day. And White, in speaking of Mrs. Foye’s ownership, is largely lacking in exactness of statement as to when Mrs. Fojre’s possession began and ended. Was he trying to show for Lee’s,benefit that Mrs. Foye was the owner and in possession before Lee’s deed became operative at ten o’clock of November 15, 1875, or was he trying to prove for the defendant’s advantage that Lee had the title, but had parted with the right of entry ? We think neither view material, the deed must speak for itself as between Lee and the Foyes, and we will hold that Lee had the right of entry.

The third proposition of law was assented to by the defendants, viz.: that they were in possession of the premises at the time the declaration, or petition in ejectment, was served.

The plaintiff, after himself giving some testimony which it is not necessary here to refer to but will be noticed hereafter, rested his case. Then the defendants’ turn came. Now we must remember that in ejectment, the plaintiff in every form recovers only on the strength of his own title. And so the defendants offered to show an outstanding legal title in another to defeat the plaintiff’s right of recovery, as undoubtedly they had a right to do, without claiming under it or deducing it to themselves, either by legal conveyance or operation of law. Greenleaf on Evidence, 5 edition, 2 vol., sec. 331.

To do this, they offered in evidence a deed made by the sheriff of Uinta county, dated April 19,1876, conveying the same property claimed in the plaintiff’s declaration, or petition, to one Harvey Booth for the sum of one thousand six hundred and fifty dollars. The plaintiff objected to the introduction of this deed stating that the defendant had not shown the proceedings to be regular in the case of Anthony v. Foye out of which the deed came, or that the court had jurisdiction of the person of the Foyes or the subject matter of that suit, or authority to render judgment therein.

We think the objections of the plaintiff below were properly overruled, and that the deed was properly admitted in evidence. By the statute law of this Territory, General Laws of Wyoming, p. 92, sec. 444, it is expressly provided that, “ the deed, such an one as this, made by a sheriff' in pursuance of an execution, shall be sufficient evidence of the legality of such sale and the proceedings therein until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned as was vested in the party at or after the time when such lands and tenements became liable to the satisfaction of the judgment. This statute then proceeds to state what the recital of such a deed shall be. Closely inspecting the deed in this case, Lee, if a stranger to it until recorded, as will be presently shown that he was not, could only find that one essential was lacking, viz., that it failed to state the amount of the judgment under which the sale was made in virtue of which the title was alleged by this deed to pass to Booth. This objection or lacking requisite of the deed as against a stranger, would have been caused, we think, in this case by the introduction of so much of the proceedings as were given in evidence in this case as bear upon the question of the regularity of the judgment and sale to Booth, and of the binding force and validity of the deed under which Booth took. In these proceedings thus introduced, the amount of the judgment is shown to have been the sum of one hundred and thirty-four dollars and thirty cents, and costs; and in these very proceedings this same Alfred G. Lee, as we take it, appeared and objected to the confirmation of this sale and the consequent deed to Booth. He had then his day in court, was heard, and his objection overruled. He excepted, but either became satisfied with the court’s ruling or having failed to seek to have that judgment reviewed in this court has lost his opportunity to do so by the running of the statute fixing the time within which writs of error may be brought here for that purpose, and in either ease the action then and in that proceeding has become final as to him. But it may be said that possibly the A. Gr. Lee mentioned in the Anthony v. Foye proceeding is not the same A. Gr. Lee who is the plaintiff in error here, and who was the plaintiff below. The answer must be to this that A. Gr. Lee was in court in this proceeding, and made no attempt to rebut the yery evident presumption, that the A. G. Lee of the Anthony v. Foye case was the A. G. Lee of this case, and as the purpose and legal effect of the introduction of the proceedings of sale under the Anthony v. Foye judgment was to defeat Lee’s claim in the court below, we are forced to the conclusion by legal presumption that A. G. Lee of the Anthony v. Foye judgment is the A. G. Lee of this case.

A great deal was said about the necessity of showing when the levy was made. Now a levy is made for the purpose of acquiring a lien. The deed of the sheriff and the proceedings brought into this case showing the judgment of Anthony v. The Foyes and the sale thereunder, or in consequence thereof, and in virtue of which Harvey Booth acquired title, which is the outstanding title in a third party set up by the defendants in the court below and relied on here to defeat the plaintiff’s recovery, shows that whole proceeding to have been for the purpose of enforcing a mechanic’s lien, which lien by the recital of the sheriff’s deed which were neither contradicted nor sought to be contradicted, dated from some time in Sept. 1873, and of course must have existed at the time the judgment was rendered, because it was in virtue and by reason of such lien that judgment was rendered, and yet it was really contended in argument that there was no proof that the Foyes owned at the time the judgment was rendered on the 17th of July 1875, the property afterwards sold by the sheriff and now i-n controversy in this case; It seems to us as beyond any. dispute that the Foyes were the owners of this property subject to the lien, at the time the judgment upon the lien was rendered, to-wit: July 17th, 1875. The very first section of the mechanics’ lien act, General Laws of Wyoming, p. 459, approved Dec. 1, 1871, nnder which the Anthony v. Foye proceeding was had, provides that any person who shall perform any labor, etc., *#® * on any house, mill, etc., by virtue of a contract expressed or implied with the owner thereof or his agent, shall have a lien to secure payment of the same upon such house, etc., etc., and the lot of land upon which the same shall stand.” The very fact that the court was ascertaining a mechanic’s lien on the 17th day of July 1875, made it by force of irresistible conclusion ascertain the lien as existing on that day as a pre-requisite to its right to enter judgment to enforce the lien and to ascertain the lien. It had under the statute to ascertain that the Foyes were the owners of the property at the time the lien was created, and so ascertaining it further necessarily found that it was continuing and in existence on the 17th day of July 1875, and that is all-sufficient to fix the lien of the Foye judgment as anterior to the sale to Lee and so superior to it, because prior tempore, potior jure. This same act in section 6, further provides for bringing actions to obtain judgments and declares that “the lien shall continue until such suit or suits be finally determined and satisfied.”

From what has thus been stated, it will, of course, hold that this court does not consider the judgment of Anthony v. The Foyes, as purely a money judgment. It was, of course, proper and necessary, indeed indispensably so, that the court should ascertain, before attempting to execute the lien, that there was in fact any subsisting lien, and the amount of it-reduced to dollars and cents; the parties must be called into court, the lien judicially ascertained, and that it had not been- paid and was still due and owing, then the court was in condition to enforce the lien, and its merely stating on the face of the order making the judgment arid directing a sale of the encumbered property, that it should be done unless the judgment was paid in twenty days, cer tainly cannot be construed, to mean that for this alone it should be avoided. The court by that act, we take it, did no more than to suspend enforcing judgment for twenty days, or during that time by its express direction the sheriff could not proceed to enforce the judgment by execution. To the objection that the judgment ought to have described with accuracy the property sold, it may be, we think, successfully replied that doubtless the execution did that, for there is no copy of it here to show the contrary, and undoubtedly the clerk might very properly, if the judgment was defective in this respect, have referred to and used in the execution the description of the property as covered by the lien, for doubtless the lien was faithfully described in the petition, if not actually embraced in it as it might have been. And especially are we led to this conclusion, since the court in its confirmation of sale by the sheriff, in Anthony v. The Foyes, declares all the proceedings to be regular. But it was claimed that Amanda E. Foye was never served with process in the Anthony v. Foye case, there is nothing in proof to show that she was, and there is nothing, we think, in the record as presented here to show that she was not. Corey says he appeared as her counsel, and if uncontradicted, as it was, we think, that would be sufficient; but the journal entries in Anthony v. The Foyes, show her appearance and pleading, and that is all-sufficient in this case, even if it were possible to raise that question in this collateral proceeding.

This brings us to notice the character of Corey’s possession, though we do not deem it essential to do so in the decision of this case, for reasons before given. We say Corey’s, for Cook seems to have held in privity with Corey, and not independently of him. Lee says in his evidence that he, (Lee), after purchasing, leased to A. L. Foye, from whom he received possession January 1st, 1876. The sheriff’s sale occurred December 27th, 1875. That some time afterwards he loaned the key to one Parkhurst to remove some articles therefrom, that Parkhurst negligently left it in the door, and Corey, as attorney for H. Booth, took it. Here, then, is a clear statement from Lee himself, negativing the idea that Corey was a trespasser. Lee says, Corey’s possession was Booth’s. Booth’s right of possession was then inchoate, but it became complete so far as the Anthony case went, when the court confirmed the sale on the 29th of April, 1876. Corey says he took the key as counsel for Mrs! Foye. Corey does not controvert the fact, however, that he took the key, but that in taking it it was to take it for Booth, or that he held it at the time this action was brought for Booth. He does not deny that though he may have taken the key, and may be in the possession as Mrs. Foye’s attorney, yet he does not deny Lee’s statement that he took it for Booth; indeed the showing of the outstanding legal title in Booth, coupled with Lee’s statement of how Booth got, the key, or through whom he got it, raises in our minds the fair presumption that Corey held for Booth, and Cook, holding in privity with him, did the same.

Nor has Corey in this done anything inconsistent with his acting as counsel for the Foyes. When he took the key is not exactly shown, but he took it after January 1st; the sale was then made and confirmed. Booth would be let into the premises by the aid of the court, if necessary, upon request, and so taking he doubtless held the key until after the confirmation on February 12, and then either delivered to Booth or held it for him, no doubt as a lawyer for the Foyes, knowing that the sale would be confirmed, or believing it would be, but of his views or opinions it is not necessary to speak. It is sufficient that he did take, as Mrs. Foye’s attorney, and that he doubtless delivered to or held in right of Booth from the time of confirmation, which was right. It is true Lee speaks of Corey as Booth’s attorney, but we think this statement grew out of the fact that Lee knéw that Corey delivered the key to Booth, or took it for him, and from this act deduced the relation of attorney and client. There is nothing in the records of the Anthony v. Foye ease to establish this relation of attorney and client, and there is nothing in this single act to establish such a relation, and Lee states no other fact that would lead us to infer it, in his testimony, and he could hardly be in position to know of such confidential relation, and so far as either case is here there is nothing to sustain the theory of any such relation between Booth and Corey.

From what has been said, we think it clear that Cook and Core}1-, the defendants below, were entitled to show, and did show, such an outstanding legal title to the property in controversy in another as tended to defeat, and should defeat, the plaintiff’s right of recovery.

But it may be claimed, as it was in 13 Smedes & Marshall, thirty years ago, that if both parties to an ejectment suit claim through one person as a common source, the defendant will not be permitted to set up an incumbrance by such person as an outstanding title. This proposition the supreme court of Mississippi then said was too broad; so say we. The court then say: “The plaintiff in the first instance need go no further than the .title of the person under whom they both claim,” but say the court, continuing, “ the defendant may set up a title adverse to that of such person, and if he does the plaintiff must show such title to be invalid, or produce some superior title or fail.” The defendants here have, in our opinion, successfully set up a title adverse to that of the party under whom they both claim, to wit: the title growing out of the incum-brance created by the mechanics’ lien, in Anthony v. The Foyes, and the sheriff's deed consequent upon the judgment and sale. In consequence of these views and this opinion, we hold that the court below committed no error which this court can or should review, reverse or modify in this proceeding, and therefore we are of opinion to affirm the judgment of the court below in all respects, but without the five per cent, allowed in cases of mere dilatory proceedings brought here by writs of error.

Judgment affirmed.