Condos v. Trapp

THOMAS, J., filed a dissenting opinion in which RAPER, J., Ret., joined. CARDINE, Justice. This case involves a determination of who among six purchasers of adjoining tracts of land will suffer a loss of 28.8 feet of land. Appellant Condos received title by warranty deed to a tract of land that conflicted with no one. Yet, in Condos v. Trapp, Wyo., 717 P.2d 827 (1986), we decided that the 28.8 foot land deficiency should be adjusted so as to charge it to appellant Condos and third-party defendants Lettz and Wilson. This appeal is from a rehearing of that case. We reverse the prior decision. [750] This litigation began with the filing of a complaint by Condos against Trapp seeking judgment for the delivery of possession of the 28.8 feet in dispute which Trapp had entered and possessed. Trapp answered and filed a third-party complaint against all of the parties owning property involved, including the Ballhorns. Subsequently Ballhorns were dismissed from the litigation upon stipulation. It must have been obvious that the Ballhorn tract was the only land with which Trapps were in conflict and that with Ballhorns in the litigation Trapps had little chance of success. The issue presented for our review is whether, applying the recording act, § 34-1-120, W.S.1977, to the facts of this case, the 28.8 foot land deficiency should be taken from the Condos tract of land. It is claimed that this issue was not presented to the trial court nor on appeal to this court and therefore should not be considered by us. It is abundantly clear that our recording statute, § 34-1-120, W.S. 1977, infra, was the basis of the court’s decision in this case; it was before the trial court, relied upon by the trial court, and again was presented to this court on appeal. Thus, in the summary judgment entered, the trial court stated: “After hearing the arguments of counsel, the Court found that W.S. § 34-1-120 applied and that the Hammonds, and thus the Lettzes and the Wilsons, were the last grantees.” In the docketing statement filed in this court by appellant Condos listing “questions presented on appeal,” it is stated as follows: “2: Does W.S. Section 34-1-120 apply as between grantees to adjacent parcels of real estate, the legal descriptions of which do not conflict?” Appellant Condos, in his brief at page 10, states: “In this case, the Court should restrict the application and effect of the Wyoming Recording Statute only to those situations specified in the statute. The Wyoming Recording Statute applies only in situations in which the same real estate or a portion of the same real estate is conveyed to two different Grantees. The recording statute should not be used to determine who is the last Grantee among several Grantees who received parcels of real estate, the legal descriptions of which do not conflict. “ * * * [T]he legal descriptions of the Condos and Trapp parcels do not conflict in any manner. Thus, the Wyoming Recording Statute, W.S. § 34-1-120, is not applicable in the dispute between Con-doses and Trapps. Nor does it apply in the dispute between Trapps, Lettzes and Wilsons (successors to Hammonds), since the descriptions to their real property do not conflict with the description of the Trapp real property.” Finally, in listing issues presented on appeal, appellant in his brief contends that the recording statute does not apply to determine the last grantee because there was no conveyance of the same real estate and therefore, “[wjhere the last grantee of a portion of subdivided real property must bear any deficiency, the last grantee is the person to receive a deed, not the last person to record his deed.” The trial court’s decision, according to the court’s own statement, involved the application of our recording act, § 34-1-120, W.S.1977, infra. The issue presented throughout this entire case was whether the act was correctly applied to the undisputed facts of this case. In Praetorians v. Redmon, 132 Tex. 432, 123 S.W.2d 644 (1939), the intermediate appellate court declined to consider a claimed error that it stated was presented as a “mere abstraction [that] does not point out * * * the error committed” and that was “too generally complained of, disjunctively.” On further appeal the court held that where the preliminary statement following the proposition, together with record reference, disclosed the question presented, the issue should have been considered. It is clear from this record that the issue which is dispositive of this case was clearly presented for our review. Here the pleadings, statements and the motions for summary judgment, statement of issues in the dock [751] eting statement, judgment of the court, and appellant’s brief, taken with the issues presented, disclose the basis of the court’s decision and appellant’s objection thereto.. The issue is fairly before this court for review. Were it otherwise, however, and the issue of a correct application of § 34—1— 120, W.S.1977, infra, was not properly presented for review, we would be inclined to hold the error in the application of the statute to be so fundamental as to require our review. Sheldon v. Little, 111 Vt. 301, 15 A.2d 574, 137 A.L.R. 1 (1940). To do otherwise and accept the trial court’s application of § 34-1-120, infra, to these facts would wreak havoc upon the property law of this state. One could hold title to land that conflicted with no one and yet the title would not be safe. The underlying facts of this case are adequately presented in the original opinion found at 717 P.2d 827. Additional facts are here presented for clarification only. The following diagram illustrates the location and approximate size of the parcels of land concerned in this litigation, the 28.8 foot shortage along the southern boundary, and survey point of beginning for each parcel. [[Image here]] Tract 19 comprises all of the parcels of land shown in the diagram above. The survey point of beginning for the Hammond parcel was the SE corner of tract 19 (POB 1), and the parcel contained 436 feet of the southern boundary of tract 19. The Hammond parcel (1) did not conflict with-any other lands either at the time of conveyance or at the time of this litigation. The survey point of beginning for the-Condos parcel was POB 2 which was 436 feet from the SE corner of tract 19. The Condos parcel contained 207 feet of the southern border and did not conflict with any other parcel either at the time of conveyance or at the time of this litigation. The survey point of beginning for the Ballhorn parcel was the NW corner of tract 19, and this parcel contained the west 288.8 feet of the southern boundary of tract 19. The Ballhorn parcel did not, at the time of conveyance or at the time of recording, conflict with any other parcel. The survey point of beginning for the Trapp parcel was POB 3 which was 643 feet west of the SE corner of tract 19. The Trapp parcel contained 297.45 feet of the southern boundary of tract 19. The Trapp parcel overlapped 28.8 feet of the Ballhorn parcel as shown by the diagram’s crosshatched area both at the time of conveyance and at the time of recording. In entering summary judgment, the trial court held that the last to record was Hammond; and, therefore, his grantees, [752] Lettzes and Wilsons, must suffer the loss. In so holding, the court relied upon our recording act, § 34-1-120, W.S.1977, which provides: “Every conveyance of real estate within this state, hereafter made, which shall not be recorded as required by law, shall be void, as against any subsequent purchaser or purchasers in good faith and for a valuable consideration of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.” (Emphasis added.) It is readily apparent that § 34-1-120 applies only to the Trapps and Ballhorns for they are the only parties to whom there was a conveyance “of the same real estate or any portion thereof * * As between Trapp, Condos, Lettz, and Wilson, there was not a conveyance of the same real estate. The conveyances to Condos, Hammond, Lettz and Wilson conflicted with no others, and they acquired good title against all the world without recording. That situation continues, at least until there might be a subsequent conveyance of interest created in thé same land — something that has not occurred in this case. Accordingly, the lands of Condos, Lettz, Wilson and Hammond are not affected by the conveyance to Trapp; and they are not required to bear the burden of the 28.8 foot shortage. ■ Reversed and remanded to enter judgment consistent with this opinion. THOMAS J., filed a dissenting opinion in which RAPER, J., Retired, joined.