Becker v. Lough
| Decision Date | 04 February 1905 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks county; Fisk, J.
Action by Matilda Becker against Sydney C. Lough and others.
From the judgment plaintiff and defendant George E. Becker appeal.
Affirmed.
Charles F. Templeton, for appellants.
An agreement to extend time for redemption, if made before the statutory time expires, is valid and enforceable, although based on no new consideration. Prondzinski v Garbutt, 8 N.D. 191, 77 N.W. 1012; Butt v Butt, 91 Ind. 305; Rector v. Shirk, 92 Ind. 31; Morrow v. Jones, 60 N.W. 369; Fisk v Stewart, 24 Minn. 97; Steele v. Bond, 28 Minn 267; Tice v. Russell, 44 N.W. 886; Schroeder v. Young, 161 U.S. 334, 16 S.Ct. 512, 40 L.Ed. 721; Union Mutual Life Ins. Co. v. White, 106 Ill. 67; Nicolas v. Otto, 132 Ill. 91, 23 N.E. 411; Spencer v. Frendendall, 15 Wis. 666; Dodge v. Brewer, 31 Mich. 227.
Where a party agrees to hold a certificate of sale on foreclosure as security, no title passes to him under sheriff's deed. Yankton Building & Loan Ass'n. v. Dowling, 74 N.W. 436. Smith v. Smith, 21 P. 4; Adair v. Adair, 29 P. 193; Macauley v. Smith, 132 N.Y. 524, 30 N.E. 997; Brinkman v. Jones, 44 Wis. 498; First National Bank v. Ashmead, 2 So. 657; Dodge v. Brewer, 31 Mich. 227.
The Scandinavian-American Bank acquired no rights under the deed executed by Lough superior to plaintiff's rights, as the latter was in open, visible and notorious possession when deed to the bank was executed. O'Toole v. Omlie, 8 N.D. 444, 79 N.W. 849; Dickson v. Dows, 11 N.D. 407, 92 N.W. 798; Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 35 L.Ed. 1063, 12 S.Ct. 239; Hodge's Executors v. Amerman, 2 A. 257; Springfield Homestead Association v. Roll, 137 Ill. 205, 27 N.E. 184, 31 Am. St. Rep. 358.
The rule stated in section 4703, Rev. Codes 1899, which includes constructive as well as actual notice, is controlling in this case. Exon v. Dancke, 32 P. 1045; Petrain v. Kiernan, 32 P. 158; Murphy v. Plankinton Bank, 83 N.W. 575; New v. Wheaton, 24 Minn. 406; Groff v. State Bank of Mnineapolis, 52 N.W. 651; Maupin v. Emmons, 47 Mo. 304; Brinkham v. Jones, 44 Wis. 498; Security Loan & Trust Co. v. Willamette Steam Mills Lbr. & Mfg. Co., 34 P. 321.
Where land is occupied by husband and wife, and the recorded title is in one, the possession will be referred to that title. Kirby v. Tallmadge, 160 U.S. 379, 40 L.Ed. 463, 16 S.Ct. 349; Iowa Loan & Trust Co. v. King, 12 N.W. 595; Hatch v. Munden, 94 N.W. 332; Leopold v. Krause, 95 Ill. 440; Gruhn v. Richardson, 128 Ill. 178; Olson v. O'Connor, 9 N.D. 504, 84 N.W. 359, 81 Am. St. Rep. 595.
The deed to the Scandinavian-American Bank being given to secure a pre-existing debt, the bank cannot claim protection as a bona fide purchaser for value. DeLancey v. Stearns, 66 N.Y. 157; Howells v. Hettrick, 160 N.Y. 308, 54 N.E. 677; Commercial National Bank v. Pirie, 82 F. 799; Schloss v. Feltus, 61 N.W. 797; Lillibridge v. Allen, 69 N.W. 1031; Pride v. Whitfield, 51 S.W. 1100; March v. Ramsey, 35 S.E. 433; Morse v. Godfrey, 3 Story, 389.
The mortgage from Lough to the Farmers & Merchants Savings Bank is void, as the plaintiff was in possession when it was given and is chargeable with notice of her equities. Seymour v. McKinstry, 106 N.Y. 230; Farmers & Traders Bank v. Kimball Milling Co., 47 N.W. 402; Prickett v. Muck, 42 N.W. 256; Nickerson v. Wells-Stone Mercantile Co., 74 N.W. 891; Lawton v. Gordon, 34 Cal. 36; Everdson v. Mayhew, 65 Cal. 163, 3 P. 641; County Bank of San Louis Obispo v. Fox, 51 P. 11; Richards v. Snyder, 6 P. 186; Hyland v. Hyland, 23 P. 811; Lewis v. Lindley, 48 P. 765; Pride v. Whitfield, 50 S.W. 1100; Whitaker Iron Co. v. Preston Nat'l Bank, 59 N.W. 395; Schaible v. Ardner, 56 N.W. 1105; Letson v. Reed, 45 Mich. 27, 7 N.W. 231; Wallace v. Wilson, 30 Mo. 335; Ledbetter v. Walker, 31 Ala. 177; Nickerson v. Meacham, 14 F. 881; Lakin v. Sierra Buttes Gold Mining Co., 25 F. 337; Newman v. Schwerin, 109 F. 942; Boone v. Chiles, 10 Peters, 177, 9 L.Ed. 388; Smith v. Orton, 18 Law Ed. 62.
Either spouse may redeem from foreclosure sale. Armitage v. Davenport, 64 Mich. 412, 31 N.W. 408; Phelan v. Fitzpatrick, 54 N.W. 614; Rev. Codes, section 5854, sub. 1.
Alf. E. Boyesen and H. N. Morphy, for respondent, the Scandinavian-American Bank.
Mere breach of an oral agreement to extend period of redemption is not sufficient in itself to entitle plaintiff to equitable relief, she must in addition show facts and circumstances amounting to an estoppel in pais. Schroeder v. Young, 161 U.S. 334, 16 S.Ct. 512; Prondzinski v. Garbutt, 8 N.D. 191, 77 N.W. 1012; Tice v. Russell, 43 Minn. 67, 44 N.W. 886; Rector v. Shirk, 92 Ind. 31.
If the agreement to allow a redemption was made after the period of redemption had passed, it must, in order to be valid, be supported by a new consideration. Davis v. Dresback, 81 Ill. 303; Smalley v. Hickok, 12 Vt. 153; Fisher v. Shaw, 42 Me. 32; Chase v. McLellan, 49 Me. 375; Stetson v. Everett, 59 Me. 376; Brown v. Lawton, 87 Me. 83.
The Scandinavian-American Bank acquired the Becker notes before maturity, for value, without notice of plaintiff's claim, and became vested with the interest of the State Bank of Northwood in the property free of all equities on the part of the plaintiff. Nashville Trust Co. v. Smythe, 27 L. R. A. 666; Carpenter v. Longman, 16 Wal. 273, 21 L.Ed. 313; Sweat v. Stark, 31 F. 859; Bales v. Neddo, 1 McCreary, U.S. 206; Sawyer v. Prickett, 19 Wal. 146, 22 L.Ed. 105; 20 Am. & Eng. Enc. Law (2d Ed.) 1043; 24 Am. & Eng. Enc. Law (1st Ed.) 240.
Where plaintiff's title had been divested by foreclosure sale and sheriff's deed to Lough, and her husband, the maker of the notes transferred to the bank, was operating the farm in his own name, executing mortgages on the crops grown thereon without the signature of his wife, and applying the crops and their proceeds to his own uses, and in all respects holding himself out to the world as owner of the property, without objection on the part of the plaintiff, her possession jointly with her husband could not constitute any notice to the defendant of any secret claim on her part to the property. Thomas v. Kennedy, 24 Iowa 401; Townsend v. Little, 109 U.S. 504, 27 L.Ed. 1013; Schumacker v. Truman, 66 P. 591; Goodwynne v. Bellerby, 43 S.E. 275; Rankin v. Coar, 11 L. R. A. 661; Harris v. McIntyre, 118 Ill. 275, 8 N.E. 182; Neal v. Pickerson, 61 Ga. 345; 1 Jones on Montgages, section 600; Red River Valley Land & Inv. Co. v. Smith, 7 N.D. 236, 74 N.W. 194; 2 Devlin on Deeds, section 763; Harms v. Coryall, 53 N.E. 87; Root v. Woolworth, 150 U.S. 401, 14 S.Ct. 136.
This is an action to redeem from a mortgage foreclosure sale based upon the following facts: On March 20, 1883, George E. Becker, the plaintiff's husband, was the owner of the land in question, and on that day conveyed the same to the plaintiff. The conveyance to the wife was for the convenience of the parties, and without consideration. The mortgages subsequently placed on this land were for the purpose of raising money for Becker for use in improving the place and carrying on his farming operations for their joint benefit. They have continuously resided on the land since 1883, it being their homestead. In 1888 they gave a mortgage upon this land to the Farmers' Trust Company to secure the payment of the sum of $ 1,300. This mortgage was foreclosed on June 2, 1894, upon default in paying the same, and at the foreclosure sale one Joseph Gsell became the purchaser of the land for $ 1,576.42. On June 22, 1894, Gsell assigned his sheriff's certificate of sale to the defendant Sydney C. Lough, who was cashier of the State Bank of Northwood, whose money Lough used in the purchase of the assignment. Lough purchased this assignment to protect his bank, as it owned a second mortgage, which had been given to it by this plaintiff and her husband upon the land on January 19, 1893, to secure the payment of $ 1,820. On June 11, 1895, a sheriff's deed was issued and delivered to Lough under such foreclosure proceedings. It is from this foreclosure sale that the plaintiff is seeking to redeem. Her contention is that Lough agreed with her, through her husband, acting as her agent, to permit her to redeem from this sale whenever she desired, upon payment of the sum paid by him for the assignment, with 7 per cent interest thereon. Before the trial the Scandinavian-American Bank of St. Paul, one of the defendants, asked to have George E. Becker made a party defendant, and it was stipulated that he be made a defendant in order that there might be made a complete determination of all the issues raised by the answer and counterclaim of said Scandinavian-American Bank. Becker appeared, and by a reply denied all the allegations set forth in said counterclaim except that he was indebted to the Northwood bank as set forth in said counter-claim and answer. The Scandinavian-American Bank loaned the Northwood bank $ 5,000 in January, 1900, and in March, 1901, Lough, as cashier of said bank, executed and delivered to said Scandinavian-American Bank a deed of the land involved in this suit as security for the indebtedness from the Northwood bank to said Scandinavian-American Bank. In 1895 Lough gave mortgages to one Birkholz to secure the payment of two notes for the total sum of $ 1,430. Of these the $ 130 mortgage was released in December, 1895, and the $ 1,300 mortgage in the year 1900. In May,...
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