Bateman v. Backus

• Decision Date: 26 May 1887
• Citation: 34 N.W. 66,4 Dakota 433
• Parties: Bateman v. Backus and another.
• Court: North Dakota Supreme Court

34 N.W. 66

4 Dakota 433

Bateman v. Backus and another.

Supreme Court of Territory of Dakota

May 26, 1887

On appeal from district court, Morton county; S. A. HUDSON Judge.

Ezekiel C. Rice, for appellants. John E. Carland and Matthew J Edgerley, for respondent.

FRANCIS J.

This case comes up on appeal from the Sixth judicial district, and was tried to the court without a jury, the court making findings of fact and conclusions of law. Marcus Bateman, the respondent, October 22, 1881, duly commenced an action for the recovery of money against Dewitt C. Clark, in the district court for the county of Morton, Dakota territory then in the Third judicial district. The property in dispute in this action was on that day attached, and also on that day a notice of lis pendens was filed. May 27, 1882, a judgment was rendered in said action in favor of the plaintiff therein, upon which judgment an execution issued, and levy was made upon the property in dispute, and said property was sold thereunder at sheriff's sale to Marcus Bateman, the plaintiff and respondent in the present action. After the year for redemption had expired, said Bateman procured the usual sheriff's deed, and commenced this action to test the conflicting claim of said Anson Backus to said real estate; the plaintiff in his complaint alleging that said Backus was a subsequent purchaser, after the filing of the notice of lis pendens, with notice, and further alleging that, if said Anson Backus was not a subsequent purchaser the deed of conveyance from one Dewitt C. Clark to him, under which he claimed title to said property, was fraudulent and void, and without any consideration whatever, and was given with intent to defraud his (Clark's) creditors; said Backus claiming in his answer that he purchased the property in question from said Dewitt C. Clark, October 20, 1881, receiving from said Clark, and his wife, a good and sufficient warranty deed for the same; that said deed was recorded October 24, 1881, in the office of the register of deeds in Morton county, Dakota territory; that he at once took possession of said property, and is still the owner, and entitled to the possession thereof; that at the time said property was attached in the suit of said Marcus Bateman against said Dewitt C. Clark, said Clark had no interest whatever therein, and that he, said Backus, purchased said property in good faith, with no intention to aid said Clark in swindling, cheating, or defrauding said plaintiff, or any other of the creditors of said Clark. No evidence of fraud was presented to the court, and that branch of the case was abandoned. The judge of the district court, before whom the case was tried, in view of the fact that the proceedings brought in issue were the proceedings in a court of equal jurisdiction, and were attacked collaterally, held said proceedings as valid for the purpose of the action before him, and, September 25, 1886, rendered judgment in favor of said Marcus Bateman and against the defendants Anson Backus and Frank P. Roby, leaving the final adjudication of the validity of the original action and proceedings, in the Third judicial district, for this court on appeal.

The case now before us turns upon the application and effect of the following provisions of section 101 of the Code of Civil Procedure: "In an action affecting the title to real property, the plaintiff at the time of filing the complaint or at any other time afterwards, or whenever a warrant of attachment of property shall be issued, or at any time afterwards, the plaintiff, or a defendant when he sets up an affirmative cause of action in his answer, and demands substantive relief, at the time of the filing of his answer, or at any time afterwards, if...