I must dissent from the disposition of this case made by the new majority. The original majority opinion was an apt disposition of the case presented by the parties, and I would maintain that decision in effect. I could tolerate identifying the last grantee under a chronology of deed rule rather than a chronology of recording rule, although I still think it is appropriate to invoke the recording statute, § 34-1-120, W.S. 1977. I am prompted to write this dissent, however, because I perceive the approach taken, by the dissenting justices initially and now by the new majority, as an unwarranted departure from the disciplined role of an appellate court. In the process the dissenting justices, and now the new majority, departed from the appropriate role of an appellate court as an arbiter and have become advocates for the Condoses.
In order to proceed rationally in appellate decision making, it always is necessary to identify the case to be decided. In this instance, should we decide the case which the parties presented to the trial court and this court, or, alternatively, is it appropriate to decide the different case which the dissenting justices and the new majority would have presented on behalf of the Condoses? The latter is the case which now is decided, and the rendering of that decision is a departure from appropriate rules with respect to appellate practice. In Rossin v. Ward, Wyo., 363 P.2d 919, at 921 (1961), this court adopted the following language:
"`* * * Parties cannot elect to try their causes on one theory in the lower court, and, when defeated on that line, assume a different position in the appellate court.' 4 C.J. 701."
That concept now is expressed in this way:
"The general rule is that a person cannot try his case on one theory in the trial court and on another theory in a court of review, whether the result in the trial court is in his favor or against him; and this is the rule both in law and in equity. Another statement is that parties cannot elect to try their causes on one theory in the lower court, and, when defeated on that line, assume a different position in the appellate court, and hence a party is estopped to urge, on appeal or error, any error growing out of the trial, submission, or decision of the cause, or of any question therein, upon an incorrect theory, when such theory was of his own selection or when such theory was adopted by the trial court at his request. Under these circumstances, it is immaterial whether the theory on which the case was tried is right or wrong, or is improvident." (Footnotes omitted.) 5 C.J.S. *Page 753 Appeal and Error § 1503, at 863-867 (1958).
It is quite clear that in this case the only issue presented to the district court was whether the last grantee should be identified as the last one to receive a deed or the last one to record that deed. The parties in the case, at the time it was decided, were all of the opinion that it was to be resolved by applying the last grantee rule. Those parties, including the Condoses, orally stipulated that the third-party complaint against the Ballhorns was to be dismissed with prejudice, and the transcript of the record demonstrates that that occurred prior to the decision in the case. The Summary Judgment which was entered was approved as to form by counsel for all parties. Pertinent portions of the Summary Judgment recite:
"The District Court heard arguments of all counsel. During oral argument, all counsel agreed that:
"1. The Grangers had executed warranty deeds to the Ballhorns, the Trapps, the Condoses, and Bert K. Hammond and Carol S. Hammond, hereinafter termed Hammonds.
"2. The Lettzes and Wilsons were successor in interest to the Hammonds.
"3. The warranty deeds executed by the Grangers were without reference to a plot or plan, and there was nothing in the deeds to indicate a purpose to divide the land in some definite proportion.
* * * * * *
"7. There was a deficiency of 28.8 feet between the footage set forth in the warranty deeds and the footage revealed in the survey.
"8. The deficiency of 28.8 feet should be borne by the last grantee."
* * * * * *
Despite the apologies made in the majority opinion, it is clear from the articulation of the issues in the appellants' brief that the appellants recognized that they were circumscribed in presenting their appeal by the way that the case had been presented to the district court. It is to be noted that the Ballhorns were not parties to the agreement alluded to by the trial court in the Summary Judgment. The majority opinion at page 2 quotes the second issue stated by the appellants in their brief, but the contentions presented in the argument of that issue did not involve any resolution of a conflict between the land owned by the Trapps and the land owned by the Ballhorns.
The departure from the parties' lawsuit was first signaled in the dissenting opinion in Condos v. Trapp, Wyo., 717 P.2d 827,832 (1986):
"In this case there are four deeds which are relevant."
That comment then is pursued by the first sentence in the new majority opinion:
"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."
In passing I note that at the most there would be five purchasers, but the fact of the matter is that the determination had to be made, after the Ballhorns had been dismissed from the lawsuit, between the Condoses, the Trapps, and the Lettzes and Wilsons, the successors of the Hammonds. As the litigation was defined at that time, there were only three deeds in issue. Those were the deeds from the Grangers to the Condoses, the Trapps, and the Hammonds.
The new majority opinion quotes from appellants' brief the contention that the Wyoming recording statute has no application in this situation because it applies only in situations in which the same real estate or a portion of the same real estate is conveyed to different grantees. At the time that the common grantor sold the tracts to the Condoses, the Trapps, and the Hammonds, who later sold to the Lettzes and the Wilsons, he believed that he owned a tract 940.5 feet long. In fact, he only owned 911.7 feet. It is so plain that the common grantor, when he conveyed 28.8 more feet than he had, in some way conveyed the same real estate to more than one grantee, in this instance three grantees, that the failure of the new majority to understand that fact is surprising. Perhaps *Page 754 I can illustrate in this way. If I were possessed of five oranges, and I then sold two oranges to A; two oranges to B; and two oranges to C, I must have sold the same orange to more than one person. In this instance the Grangers sold the same land to more than one person, and that is sufficient to invoke the provisions of the Wyoming recording statute, § 34-1-120, W.S. 1977.
It was only after the Condoses had been educated by the original dissenting opinion that they felt free to attempt to expand the theory of this lawsuit in this appeal to include a contention that the dispute really should be resolved on the theory of a conflict in the description between the deed to the Trapps and the deed to the Ballhorns. I can see, for purposes of argument, that such a theory might well have been a good one to present in litigating the case in the district court. My point simply is that it was not presented to the district court; it was not presented to this court; and we have no business expanding the material facts to include that possibility.
It may be true that the theory adopted by the dissenting justices and the new majority is the one upon which the Condoses should have tried their case. They did not, and they knew from the outset that they could not, rely upon that theory in proceeding with this appeal. However deftly they may have attempted to insert it in the brief, the first articulation of the second issue was both apt and accurate and should be the basis for the court's disposition of the controversy. By presenting on behalf of the Condoses the theory from which the Condoses were foreclosed, the court has abandoned its role of impartial arbiter; has assumed the stance of an advocate on behalf of one of the parties to the disadvantage of the other parties; and has structured a jurisprudential aberration.
The opinion of the court first published should be maintained, and I dissent from the approach manifested by the new majority opinion.