Bausman v. Kelley
| Decision Date | 13 February 1888 |
| Citation | 36 N.W. 333,38 Minn. 197 |
| Parties | Mercy P. Bausman and others v. Austin F. Kelley |
| Court | Minnesota Supreme Court |
Plaintiffs brought this action in the district court for Hennepin county, to remove a cloud from their title to the land described in the complaint. They allege in their complaint that they are the owners of the legal title, having acquired it by inheritance and deeds of conveyance from one Alexander Moore and his grantees, Jacob B. Bausman and Zenas E. Britton, and that on December 31, 1855, Alexander Moore being then the owner of the land, duly mortgaged the same to one Joseph Hall, who died in the year 1865; that thereafter and in 1870, proceedings, regular in form, for the foreclosure of this mortgage by advertisement were conducted in the name of Joseph Hall, as mortgagee, by R. B. Galusha as attorney for such mortgagee, under which foreclosure proceedings a sale in form was made to Galusha; that such foreclosure proceedings were entirely unauthorized, and that the defendant claims title under conveyance from Galusha. The answer admits the ownership of Alexander Moore in 1855, and the making and regular foreclosure of the mortgage to Hall and denies that the foreclosure was unauthorized, or that the plaintiffs or any of them have any interest in the land. The answer further alleges that the defendant is owner and in possession of the land as an innocent purchaser for value, and that at the time of his purchase the title to the lot appeared to be and was perfect of record in his grantor, and he had no notice or knowledge of any claim to the land on the part of the plaintiffs or any of them. The answer further alleges that for more than 25 years prior to the commencement of the action none of the plaintiffs, their grantors or predecessors under whom they claim, had been in possession of or exercised any act of ownership over the land, or paid any taxes thereon, but on the contrary the defendant and his grantors and predecessors in interest had been in peaceable possession thereof under title adverse to the plaintiff, and had been exercising acts of ownership over the land peaceably and uninterruptedly, and had paid all taxes thereon, for a period of more than 20 years prior to the commencement of the action; and that each and every of defendant's grantors and predecessors in interest during that period have been innocent, bona fide purchasers for the full value of the land, and that the title so purchased appeared perfect of record, and that they so purchased without any notice or knowledge of any claim thereto on the part of the plaintiffs, or on the part of any of the persons under and through whom plaintiffs now claim to have derived title; that all of those persons abandoned the land, and had ceased to pay taxes on it more than 25 years ago, and continued such abandonment until the commencement of this suit, during all of which time neither they nor any other person claiming under them ever asserted or made any claim of ownership. As a further and third defence, the answer alleges that this is an action for relief on the ground of fraud, and that the cause of action alleged in the complaint did not accrue within six years prior to the commencement of the action. A demurrer to this third defence was sustained by Lochren, J. The action was tried by Young, J., who found the facts stated in the opinion, and ordered judgment for the plaintiffs. A new trial was denied, judgment was entered, and the defendant appealed.
Upon the trial, the plaintiffs' case was made out by the documentary evidence and by proof of the death of Joseph Hall in 1865. The defendants, having offered in evidence the Hall note and mortgage, offered to show that, at the time of the alleged foreclosure, R. B. Galusha had authority to foreclose the mortgage from one Charles C. Lund, from whom he received it, and that the mortgage was foreclosed either as the property of Galusha or of Lund. The defendant did not offer to show that it was foreclosed as the property of Joseph Hall, and did not offer any evidence to show a transfer from Joseph Hall to Lund, excepting the fact that the mortgage and note were found in the possession of Lund. The evidence so offered was excluded, upon plaintiffs' objection. The defendant then further offered to prove that the reason why the foreclosure proceedings were taken in the name of Joseph Hall was that there was no written assignment of the mortgage and note, and that the assignment was simply an equitable one, by delivery. On plaintiffs' objection, this was excluded. The defendant also offered to prove that the defendant and each of the successive grantees named in the chain of title from R. B. Galusha to the defendant paid the amounts of the considerations named in their respective deeds, were bona fide purchasers for value, had no notice or knowledge, actual or constructive, of the death of Joseph Hall or of any fact invalidating the foreclosure proceedings, and that the defendant and each of the successive grantees from R. B. Galusha have, during all the times since the sale to R. B. Galusha, paid the taxes upon the land in question, and have been in actual possession thereof. This evidence was objected to by plaintiffs, and was excluded. No further evidence was offered on the part of the defendant.
Edward Savage, for appellant.
The plaintiffs are not entitled to come into a court of equity for the relief sought because of their unexplained laches and delay in asserting their rights. 2 Story, Eq. Jur. §§ 15, 20; Smith v. Clay, Ambler, 645; Brown v. County of Buena Vista, 95 U.S. 157, 161; Leavenworth County v. Chicago, R. I. & P. Ry. Co., 18 F. 209; Badger v. Badger, 2 Wall. 87; Marsh v. Whitmore, 21 Wall. 178; Godden v. Kimmel, 99 U.S. 201; Haff v. Jenney, 54 Mich. 511; Terry v. Fontaine, 2 S.E. 743; Murray v. Hudson, 32 N.W. 889; Partridge v. Shepard, 71 Cal. 470, (12 P. 480;) Murphy v. Doyle, 37 Minn. 113, (33 N.W. 220.)
A court of equity will not take cognizance of an action to remove a cloud on a title, in favor of one who claims on the strength of a perfect legal title in himself, unless he is in possession of the property. (The authorities cited to this point are too numerous to be inserted.)
The evidence did not show that the foreclosure proceedings were void. There is no evidence to show that the sheriff had no authority to sell from the real owner of the mortgage. It is not proved that the proceedings were prejudicial or hostile to the rights of the true beneficiary of the power, nor that the plaintiffs themselves have been wronged or their rights affected by the enforcement in this way of the mortgage lien. There was much more plausible ground for arguing a total want of power to sell in the case of Merchant v. Woods, 27 Minn. 396. The mortgage sale cannot be questioned under the provisions of Laws 1883, c. 112.
The action was barred under the provisions of Gen. St. 1878, c. 66, §§ 3, 6, subdiv. 6.
Francis G. Burke and George M. Bennett, for respondents.
The attempted foreclosure of the mortgage in the name of Joseph Hall, who was deceased, was a nullity. Hayes v. Lienlokken, 48 Wis. 509; Niles v. Ransford, 1 Mich. 338; Marlett v. Jackman, 3 Allen, 287; Lee v. Clary, 38 Mich. 223; White v. Secor, 58 Iowa 533, (12 N.W. 586.)
The plaintiffs were not guilty of negligence or laches, and there is no evidence or presumption in this case against them. Even if they were chargeable with constructive knowledge of the foreclosure proceedings because of their being a matter of record, still, as remarked by the learned trial judge "they will not be presumed to have known of Hall's death any more than such knowledge would be imputed to the grantees of Galusha." Hamilton v. Batlin, 8 Minn. 359, (403;) Bunce v. Gallagher, 5 Blatchford, 481; Donnelly v. Simonton, 7 Minn. 110, (167;) Johnson v. Cooper, 2 Yerg. (Tenn.) 523; Miner v. Beekman, 50 N.Y. 337, 343; Remington Paper Co. v. O'Dougherty, 81 N.Y. 474, 483; Peirsoll v. Elliott, 6 Pet. 95; 2 Story, Eq. Jur. 15; Butman v. James, 34 Minn. 547, (27 N.W. 66;) Rundle v. Allison, 34 N.Y. 180; Everitt v. Everitt, 41 Barb. 385; Howell v. Leavitt, 95 N.Y. 617; Requa v. Holmes, 16 N.Y. 193, 26 N.Y. 338; Austin v. Dean, 40 Mich. 386; Johnson v. Knapp, 35 Mich. 307; Prout v. Wiley, 28 Mich. 164; Bigelow on Estoppel, 568; Schall v. Williams Valley R. Co., 35 Pa. St. 191; Meley v. Collins, 41 Cal. 663; Chandler v. White, 84 Ill. 435; Knouff v. Thompson, 16 Pa. St. 357, 362; Gordon v. Hobart, 2 Sumner, 401; D'Wolf v. Haydn, 24 Ill. 525; Camp v. Carpenter, 52 Mich. 375, (18 N.W. 113;) Watson v. Spence, 20 Wend. 260; Crawford v. Hoeft, 58 Mich. 1, (24 N.W. 645;) Dodge v. Briggs, 27 F. 160; Hodgen v. Guttery, 58 Ill. 431; Griffiths v. Kellogg, 39 Wis. 290; Walker v. Ebert, 29 Wis. 194; Everts v. Agnes, 4 Wis. 343; 6 Wis. 453; Tischer v. Beckmith, 30 Wis. 55; Saltmarsh v. Smith, 32 Ala. 404; Thompson v. Lynch, 29 Cal. 189; De Court v. Sproul, 66 Tex. 368, (1 S.W. 337;) Arrison v. Harmstead, 2 Barr, (Pa.) 191; Berry v. Anderson, 22 Ind. 37; Smith v. South Royalton Bank, 32 Vt. 341, 353; Van Amruge v. Morton, 4 Wharton, (Pa.) 382; Napton v. Leaton, 71 Mo. 358; Sherrid v. Southwick, 43 Mich. 515, (5 N.W. 1027;) Watertown Ins. Co. v. Sewing Mch. Co., 41 Mich. 131; Eldridge v. Pierce, 90 Ill. 474; Comstock v. Comstock, 27 Mich. 97; Slate v. Geddis, 44 Iowa 537; Edgerton v. Jones, 10 Minn. 341, (427;) Keller v. Hannah, 52 Mich. 535; First Nat. Bank of Nevada v. Bryan, (17 N.W. 165;) Tabor v. Foy, 56 Iowa 539, (9 N.W. 897;) Hait v. Ensign, 61 Iowa 724, (17 N.W. 163;) Miller v. Clark, 56 Mich. 337, (23 N.W. 35;) Gaines v. New Orleans, 6 Wall. 642, 716; Coles v. Yorks, 28 Minn. 464; Yager v. Merkle, 26 Minn. 429; Hayes v. Lienlokken, 48 Wis. 509; Niles v. Ransford, 1 Mich. 338;...
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