This case was filed September 1, 1928. Various motions were filed and heard in the federal and state courts during the intervening time between the eviction completed on September 20, 1927, and the filing date of this suit concerning the property involved in the controversy between Mrs. Bingham and the bank. In fact, the records show that the litigation in its various phases has extended over eleven years. During most of this time Mrs. Bingham has been homeless. She, in her name, had about 175 blooded Hereford cattle, clear of mortgage, and several hundred acres of farm land, all clear of mortgage, and her husband had in his name about the same amount of property. Each had his or her own stock brand. Some of the land claimed *Page 186 by them as tenants in common stood in the name of Frank H. Bingham, especially including the home comprising 160 acres.
Mrs. Bingham was not greatly indebted. She was apparently a good business woman. Her husband, on the contrary, was careless of his business affairs. The bank account with the National Bank of Montana was kept in his name. Most of the debts were with the bank, and the Binghams depended much upon the bank to account for their business affairs. In 1924 the bank demanded security and summoned the Binghams to the bank and, in conference with Thomas Marlow, its president, a controversy arose over the amount due the bank, all or most of which was then unsecured. Marlow claimed about $31,000. Finally, Mrs. Bingham testified, and the record does not show any testimony to the contrary, a settlement was made at $21,500, on the condition that she would sign a note for that amount and each of the Binghams should sign a mortgage on their respective properties. The real estate mortgage and note were made in one instrument.
In May, 1926, the bank again summoned the Binghams and demanded that they sell the ranch to Richard and Clara Manger for $20,000 in order to satisfy the mortgage indebtedness. The interest had been paid to date, but the bank claimed the bank examiner insisted upon a liquidation of the account. The Binghams claimed the land was worth more than $20,000, and refused to sell at that price. Thereupon the bank seized the mortgaged cattle under the chattel mortgages and sold them, crediting the proceeds as it saw fit.
A suit was brought to foreclose the real estate mortgage. Thereupon Bingham filed a petition in bankruptcy. The land standing in the name of Frank Bingham was sold in such proceeding to the bank for $8,250. The bank almost immediately resold to Richard and Clara Manger and while the Binghams were in possession. Mrs. Bingham refused to release possession. Thereupon a writ of assistance was issued out of the federal court under the bankruptcy proceedings. It was given to a United States marshal for service, he alleged, by the bank. Mrs. Bingham refused to recognize the writ, claiming that certain *Page 187 of the lands, including the home place, were in her husband's name as trustee, she having paid the purchase price therefor, thus entitling her to remain in possession as a tenant in common of the home place. Also she claimed that she was not a party to the bankruptcy proceedings and was not bound by any decree of the federal court or any writ of assistance issued therefrom. Upon service of the writ, Bingham removed from the premises but Mrs. Bingham refused to vacate. She locked the house and rode off with the officers, declaring that she was going to consult an attorney. None of the personal property was disturbed.
The marshal informed a man, declared to be a representative of the Mangers, that he was then by the marshal's order under the original writ placed in possession. They then all left the place together, Bingham and his hired man, Preston, remaining alone on the premises. Soon thereafter Bingham finally removed from the premises, he not thereafter asserting any personal rights in the property. The marshal filed a return on the writ as fully executed.
Upon application of the same attorneys, Spaulding for the bank, and an attorney representing the Mangers, an alias writ of assistance was procured. Mrs. Bingham was delayed by the sickness of her counsel, and did not return to the home until about the month of July. The interior of the house was undisturbed, and her chickens, sheep and other personal property had been in the care of Paul Preston, the hired man. No testimony appeared to show that her possession was disputed until August 29, when the deputy marshal again appeared and demanded possession under the alias writ of assistance. Mrs. Bingham refused to relinquish possession. The marshal left but returned in a day or two with several assistants, again demanding possession. Mrs. Bingham locked herself in the house, and upon her refusal to remove, the marshal and his men moved into the bunk house and trained their car lights on the windows of the house at night. Parties were by the marshal refused admission to the house, even her attorney on his second attempt to see her. Preston, her hired man, was not allowed to feed her chickens or *Page 188 her sheep. She feared to leave the house to get food from a cellar and fresh water from a well near by. Preston was arrested at a distance from the house, handcuffed and brought up to the house in full view of Mrs. Bingham from a window. She was pregnant and after several days gave premature birth to a child while alone in the house. She had nothing but stale water in the house. Shortly after birth the child died. A day or so later her brother came to the house, and after she had screamed from an upstairs window that she had a dead baby up there, he forced his way in and found her in a delirious condition in a bed upstairs. A doctor was summoned and she was removed. Thereafter the officers took possession and removed her furniture.
A year later this suit was filed. Many dilatory motions were made. A verdict for $15,000 was rendered on December 27, 1935. This case was argued in this court May 19, 1937; reargued June 17, decision rendered July 6, 1937, and motion for rehearing filed.
In the real estate foreclosure proceedings by the bank, suit was first filed by the bank in August, 1926, to collect an alleged balance of $10,566 and $1,000 attorneys' fees. Mrs. Bingham denied any balance was due from her to the bank. After two trials in this court (National Bank of Montana v.Bingham, 83 Mont. 21, 289 P. 162; s.c., 91 Mont. 62, 8 P.2d 554), it was finally determined that Mrs. Bingham had overpaid the note in a small amount, but judgment was not granted for the undetermined balance in her favor or for any attorney's fee. She has been homeless since the marshal took possession on September 20, 1927.
With this understanding of the case, I wish to express my dissent to the opinion of the court directing a new trial.
I first analyze the pleadings to determine the issues. The plaintiff alleges possession of a certain tract of land and unlawful removal by defendants. The defendants admit removal but deny that it was unlawful, and allege that the removal was made under an alias writ of assistance issued out of the federal bankruptcy court in the matter of the bankruptcy of Frank *Page 189 Bingham. This plaintiff was not named as a party in that proceeding. The answer very definitely in several places alleges that the eviction was made under such writ "and not otherwise." The defendant bank is alleged to have been one of the parties directing and encouraging the eviction. Damages are demanded. The answer alleges, in addition to the above, a mortgage by Frank Bingham and Minnie Bingham, his wife, the plaintiff herein, but no foreclosure is alleged. Therefore no title may be claimed under the mortgage. The issues then are confined to three questions: First, the right of plaintiff to remain in possession and the validity of the alias writ; second, the identity of the parties liable for the alleged trespass, and third, the amount of the damages. As the verdict of the jury fixed the damages, that question need not be further considered. I believe this analysis of the pleadings will simplify the consideration of the case.
Section 6817, Revised Codes, provides: "Occupancy for any period confers title sufficient against all except the state and those who have title by prescription, accession, transfer, will or succession." Under this section occupancy or possession is equivalent to title and effectually shifts the burden of proof. Therefore, unless title is proven by defendant in a trespass case, the title of the possessor is established.
The defendant bank limited its defense of a right to eject Mrs. Bingham to the alias writ of assistance. No proof of any other right of entry was offered. A sale under the bankruptcy of Frank Bingham was alleged but it was apparent no sale of his property could affect Mrs. Bingham's property or her right of possession unless it be shown that she was claiming right of possession as the wife of Frank Bingham and not as an independent owner. The burden of overcoming her possessory right was upon defendant. The purchaser at the bankruptcy sale stands in no better position than Frank Bingham himself; she claimed she owned a half interest in the land which would give her a right of possession, but the right to acquire possession was, as said before, limited by defendant bank's answer to the alias writ. This writ was void on its face, as it appears from the *Page 190 pleadings that the original writ had been served and by the allegations of the answer returned as fully executed. Therefore, if an alias writ is ever authorized, no legal reason existed for the issuance of this alias writ. Judge Bourquin, in a proceeding in the federal court to test the validity of this writ of assistance in which the defendant bank was a party, held that the writ was void ab initio. Thus, the facts stated by defendant made it void and the judgment of Judge Bourquin, binding on the bank, also made it void and therefore functus officio. No citations are necessary to show that no person, officer or other person can defend or claim any right under a void writ. No proof or argument in this case claims otherwise.
There is also another reason why the writ was ineffectual as a defense. Mrs. Bingham was not a party to the bankruptcy proceedings, and any right claimed by her to the property independent of her husband could not be foreclosed and she could not be dispossessed by the writ even if valid. The alias writ was, then, no defense to the eviction of Mrs. Bingham, and since the right of entry of defendant bank rested solely upon that defense, the trespass is established.
The plaintiff did not go further in her complaint than to allege possession in herself. If she attempted to go further and prove the good faith of her claimed possession, such unnecessary additional proof could not prejudice her already admitted possession. This court said in the majority opinion that title was not an issue in the case. The additional proof of the trust title could not be prejudicial to defendant. How could the jury or the defendant bank have been misled to its disadvantage? Defendant limited its proof of its right of possession to the void alias writ of assistance. There being no prejudicial error in admitting the proof of additional title and Instruction D-5 being an erroneous statement of the law, no error arose and the verdict and judgment should be sustained.
The argument over the question as to whether the payment of the purchase price of the home place, the title having been taken in the name of the husband, constituted a trust or a gift, is deemed as a controlling feature by my associates. The failure *Page 191 to give the Instruction D-5 is held to be the principal reason for granting the new trial. My view of the pleadings and the issues presented at the trial, as stated before, renders this issue wholly immaterial. It was surplusage. If Mrs. Bingham offered to prove that she held possession in good faith, it was proper but unnecessary proof. No prejudicial error arose therefrom. The rejected instruction did not correctly state the law as clearly explained in the dissenting opinion of Mr. Justice Angstman. The original majority opinion held that other states upheld the contention that the title in the husband, where the purchase price was furnished by the wife, constituted a gift. The decision now holds that the weight of opinion is the other way, but the decisions of this court are with the minority, citing three cases in support of that contention. A careful reading of these three Montana decisions should convince any lawyer that the claimed holdings are merely dicta, mere random, careless statements of a general principle in no way applicable to the issues or facts in the instant case, and by no stretch of imagination can they be held to establish the alleged gift, in principle, in any one of the cases. They are cited in the majority and minority opinions and should be read by every lawyer interested in the justice of this case. It is a feigned technicality urged by the four attorneys for a million-dollar corporation to bolster a case that reeks with injustice from its inception. The statute on the subject of trusts (sec. 6785, Rev. Codes) is so plain that no one can misunderstand, and no court has any authority to add exceptions to a plain statute, at least not where such exceptions are not warranted by reason or necessity. I say, therefore, that rejected Instruction D-5 could not afford a ground for reversal. No testimony was suggested or offered by defendant to counteract the effect of the testimony of the good faith of the possession of Mrs. Bingham.
The court holds in its decision that the means used to dispossess Mrs. Bingham were excessive and not justified by the exigencies of the case, and for that reason the defendants were further liable as trespassers. I heartily concur with that conclusion. *Page 192
The next question and, perhaps, the most important is: Who is liable for the proven trespass? The undisputed proof is that the bank, through its president, Thomas Marlow, sold the property to Richard and Clara Manger, and gave a bargain and sale deed for it. The deed provided that the bank "granted" to the Mangers the property described, including the particular property involved in this controversy. The statute, section 6874, Revised Codes, defines the word "grant" as used in deeds, as follows: "From the use of the word `grant' in any conveyance by which an estate of inheritance or fee simple or possessory title is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs and assigns, are implied, unless restrained by express terms contained in such conveyance: 1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee. 2. That such estate is at the time of the execution of such conveyance free from encumbrances done, made or suffered by the grantor, or any person claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance."
It was provided that the grantee should "have and hold" the said premises. The bank had the unquestioned right to sell the interest of Frank Bingham in this property and deliver such a deed to the purchaser, executed as it was by its president, Marlow. It would be the duty of the bank in selling the property to deliver possession to the purchaser. When the Mangers found that Mrs. Bingham refused to give possession they complained to the bank. As the present title owners, the Mangers were the only persons that could apply to the federal court for a writ of assistance. The bank was the real party in interest. The Mangers were only the nominal parties.
The officer who attempted to enforce the original writ testified that the "bank sent him out." This alone was sufficient to connect the bank with the trespass, but the cashier of the bank also testified that the bank was interested because it felt it *Page 193 its duty to furnish possession to the Mangers. Further testimony showed that the bank paid at least some of the expenses of acquiring the possession, and Marlow paid Mrs. Bingham's doctor bill; he solicited the doctor to go and see her.
This court found that the admission of the testimony wherein Marlow was alleged to have directed Angell, the alleged attorney for the Mangers, to get Mrs. Bingham off the land "dead or alive," (to which testimony no proper objection was made by the bank) was error in that Marlow was not shown to have authority to give any such direction. Marlow, as president of the bank, executed the deed. Surely he was acting within his authority in selling the property. As said before, it was the bank's duty, after selling the property, to place the Mangers in possession, and Marlow having properly and within his authority negotiated the transaction, was most certainly justified in attempting, for the bank, to fulfill the duty of the bank in placing the Mangers in possession.
An officer charged with the duty of starting a proper proceeding for the bank would certainly be presumed to have authority to finish the transaction, and, having started on the road, if he deviated from the exact direction expected by the bank and damages arose therefrom, the bank would not be excused by asserting that he did not fulfill its direction as expected. Certainly it would be unjust to place the burden of showing that he did not exceed his authority upon the Mangers. And most certainly it was not the duty of Mrs. Bingham to define the authority of Marlow, the managing agent of the bank. It is very questionable whether the bank could show that Marlow deviated from the course expected, but certainly Mrs. Bingham would not be required to show what his authority in the matter was, after it appeared that he properly executed the deed.
The defendant claims that fifty errors were made in the trial of the case. It surely appears that several errors, as, for instance, the dismissal of the case against Marlow, were made against the plaintiff, but I fail to see from a careful reading of the transcript or the errors pointed out by the court, wherein any prejudicial errors were made against the bank. Therefore *Page 194 the decision requiring a new trial is a serious hardship upon the plaintiff. The hardship is emphasized when we note that this case has been in court for more than nine years; that this woman was driven from her home by persons directed by the bank, without any showing whatever on the part of the bank as to a right to the property. To put the plaintiff back to the same place where she was nine years ago would certainly be an injustice against which I protest.
In conclusion I venture the following observations as pertinent to this case: As stated heretofore, the case was in the district court over seven years and in this court a little less than two years. Section 6, Article III of the Constitution of Montana provides: "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shall be administered without sale, denial, or delay." Section 2 of Article VIII provides that the supreme court shall have "appellate jurisdiction" and "a general supervisory control over all inferior courts." The fact that it has taken nine years and more for Mrs. Bingham to get back to where she started nine years ago does not encourage other would-be litigants to seek redress in the courts of Montana. It will be urged that the attorneys in the case were chiefly to blame for the delays. As this court is the general supervisory authority over all inferior courts — and that would include the attorneys as well — this court is in a position where it cannot shift the entire responsibility for the long delay to the attorneys and the district judge or judges, as the case may be.
As Chief Justice, I take this opportunity to give notice that some means of supervision will be found, if I can have my way, to prevent the repetition of such delays. It may reach out to the courts or to the attorneys. I will not leave such a record of delay behind me if I can help it. This threat will not be popular with the attorneys but it will please their clients, particularly the private litigants who want their rights preserved while they still live. The corporations do not generally want speed. They do not die except voluntarily. May I inquire *Page 195 what delays would have ensued if the parties had been reversed in this case? Did not the bank corporation have an influence in delaying this case? Will it take nine years to get another trial? Mrs. Bingham surely has cause to complain of Montana courts, and I accept my part of her condemnation with my humble apology, if that will do her any good.