Robinson Merc. Co. v. Davis

Beard, Ci-iiee Justice.' 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 [487] N. E. J4 of the S. W. Rj of section 26, in said township and range, containing 40 acres, which deed was filed for record, February 10, 1910. That Henry E. Ware received a patent from the United States for said last above described land December 26, 1913. That June 17, 1911, William H. AVare and wife gave a mortgage on said 200 acres of land, and other lands, to The Upton Dumber and Hardware Company to secure a promissory note for $866.15, dated June 17, 1911, due six months after date, with interest at 10% from date, said mortgage being filed for record June 23, 1911. Said mortgage was foreclosed by notice and sale July 10, 1915, The Upton Lumber and Hardware Company becoming the purchaser of said 200 acres for the full amount due on said mortgage. That The Upton Lumber and Hardware Company is a co-partnership composed of Charles E. Foster and Harold H. Jones. ■> That Robinson Mercantile Company, a corporation, obtained a judgment in the District Court of Weston County September 12, 1912, against William H. Ware and Jessie A. Ware, his wife, for $1,387,74, which remains unsatisfied. 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 [488] such capacity. But a mortgage is not a conveyance. It is a mere security in the form of a conditional conveyance, and the interest which it vests in the mortgagee is not essentially different from that created by a mechanic's lien or an ordinary judgment (Davidson v. Cox, 11 Neb. 250; Buchanan v. Griggs, 18 Neb. 121). In the former case it was said: ‘In this state, a mortgage of real estate is a mere pledge or collateral security creating a lien upon the mortgaged property, but conveying no title nor vesting any estate, either before or after condition broken/ That a lien on real estate to secure an indebtedness may accrue to a partnership in its firm name has been decided in Foster v. Johnson, 39 Minn. 380, and in Chicago Lumber Co. v. Ashworth, 26 Kans. 212.” And in Bank v. Johnson et al., 47 O. St. 306, in the opinion in which case a number of authorities are cited, that court said: “The instrument, the validity of which is questioned in this case, was designed by both parties to be a mortgage. This is apparent on the face of it. The only objection made to it is, the incapacity of the partnership in its firm name to take and hold the legal title to real estate. But this is not material, for if it were so/then, as already shown, Johnson, the mortgagor, would hold the legal title in trust as security for the firm. In such case there would be no need of a formal reformation, as it would be the duty of the'court,’in the exercise of its equity powers, to treat that as done which ought to have been done, and give effect to the instrument in a proceeding to enforce it, according to the priority of its record, by awarding to the bank a lien upon the land for the satisfaction of the amount due it.” In this state, as in the cases cited, the title to the property mortgaged does not pass by the mortgage to the mortgagee even on condition broken. The mortgage simply creates a lien upon the land, and it must be sold on foreclosure to pass the title. 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 [489] Company become extinguished. Some objection is made to the sufficiency of the notice of' foreclosure because it recited that The Upton Lumber and Hardware Company consisted of Charles E. Foster and Harold H. Jones. That recital was mere surplusage and did not vitiate the notice. As to the second objection, that the land was not sufficiently described in the mortgage, it was described as “situated in the county of Weston, in the state of Wyoming, to-wit: NEJ4 of SWJd, SEj4 of NWjL NJ4 of NWJL section No. 35, T. 48, Range 67 West.” That was sufficient to clearly identify the land. Counsel is in error in stating that the range was not recited therein as “west’’, and there was evidence to the effect that all lands situated in township 48 in Weston county were in said township north. In addition to that, courts take judicial notice of the boundaries of the comities of their state, of the government surveys, and of “the fact that all the. land in a given county, township or range lies in a certain direction from the principal meridian” (17 A. & E. Enc. Law, 912 et seq.). And the same is true as to townships (Stoddard et al. v. Sloan et al., 65 Ia. 680; Dawson v. James et al., 64 Ind. 162; McChesney v. City of Chicago, 173 Ill. 75; Muse v. Richards, 70 Miss. 581; Chambers v. Ringstaff, 69 Ala. 140). 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 [490] date of the mortgage. Henry E. Ware having no title at the time he executed the deed to William H. Ware in 1909, the mortgage of the latter to The Upton Lumber and Hardware Company created no lien upon that 40, and, the mortgage containing no covenants of warranty, no title which he acquired, or which inured to him by virtue of the warranty in the deed from Henry E. Ware, subsequent to the date of the mortgage would inure to the benefit of the mortgagee. The facts here, as they appear by the record, are different from those in the case of Roberts v. Hudson, 25 Wyo. 505. In that case the grantor in the quit claim deed, which was held to be a mortgage, had made final proof on his desert land entry prior to the date of the deed, and had the equitable title at the time the deed was executed. In the present case the mortgagor had no title at the time the mortgage was given. For the reasons stated, the judgment is affirmed in so far as it affects the lands situated in said section 35, and reversed as to the 40 acres situated in said section 26, and the case will be remanded for a new trial as to that 40 acres, and'it is so ordered. Each party to pay their own costs in this court. Affirmed in part and reversed in part. Potter and Blydenburgh, JJ., concur.