Blessett v. Turcotte

• Citation: 127 N.W. 505,20 N.D. 151
• Parties: BLESSETT et al. v. TURCOTTE et al.
• Decision Date: 20 July 1910
• Court: North Dakota Supreme Court

20 N.D. 151

127 N.W. 505

BLESSETT et al.

v.TURCOTTE et al.

Supreme Court of North Dakota.

July 20, 1910.

Syllabus by the Court.

In this case, which was tried under section 7229, Rev. Codes 1905, counsel for appellants, after the entry of judgment, caused to be served upon counsel for respondents a proposed statement of the case, consisting of 6 typewritten pages relating to 87 exceptions, also containing a specification that appellants desire a review of the entire case in the Supreme Court. No proposed amendments were ever served. In due time and without notice to respondents, the trial court made an order settling a statement of the case, which statement contains a complete and literal transcript of the stenographer's minutes, including all objections, motions, rulings, and exceptions appearing therein, and all of the evidence offered, including exhibits and proceedings had upon the trial. A motion by respondents to strike the proposed statement of the case, excepting only the 6 typewritten pages relating to the 87 exceptions and also to strike from the printed abstract so much of the same as relates to the statement of the case and the stenographer's minutes and the exhibits and all of the abstract, excepting the judgment roll, is denied.

By virtue of his purchase of the premises in controversy from Galloway in the summer of 1896, appellant E. L. Turcotte succeeded to whatever rights Galloway had in said premises, and became the equitable assignee of the mortgage executed by plaintiff Blessett to Galloway January 25, 1890.

In an action by parties out of possession against a party in possession to determine adverse claims to real estate, which adverse claims are based upon a mortgage owned by defendant and a tax deed, which mortgage authorized the owner thereof to pay the delinquent taxes upon the premises covered by the mortgage and add the amount to his mortgage debt, before the plaintiffs are entitled to the relief prayed for, they must do equity and reimburse the defendant for all taxes paid by him, and also pay him the amount due upon his mortgage.

Appeal from District Court, Towner County; John F. Cowan, Judge.

Action by Robert Blessett and R. Percy Abbey against E. L. Turcotte and M. Turcotte. Judgment for plaintiffs, and defendants appeal. Reversed, and new trial ordered.

Spalding and Ellsworth, JJ., dissenting.Fred E. Harris (Engerud, Holt & Frame, of counsel), for appellants. Robinson & Lemke, for respondents.

CARMODY, J.

This action was commenced on the 17th day of February, 1907. The amended complaint alleges, in substance, as follows: That the plaintiffs have an estate and interest in certain land in Towner county, N. D., to wit, the N. E. 1/4 of section 20, township 162, of range 68. That in 1891 the land was patented to plaintiff Blessett, and that by deed he conveyed some title or interest therein to plaintiff Abbey. That plaintiffs are entitled to the immediate possession of said land. That the defendants claim certain estates or interest in said land adverse to plaintiffs. That in the spring of 1897, the said land being vacant and unoccupied, the defendants entered upon and took possession of the same, and that since said entry have remained in possession of and cultivated the same. That in the summer of 1896, the land being vacant and unoccupied, the defendants entered upon the same, plowed back 40 acres that had been previously broken and cultivated, and did not fence the land or live on it or put any buildings on it. That the use and occupation of said land was worth $400 per year. That the adverse claim of defendants is based on a mortgage dated January 25, 1890, made by plaintiff Blessett to W. F. Galloway to secure $700 and on an assignment of the mortgage to defendants, also on a pretended tax deed dated March 11, 1897, made by the county auditor to W. F. Galloway, and on a deed from Galloway to defendants dated May 20, 1897. That said tax deed is void, and defendants have never had any title or interest in or lien upon said land, except under said mortgage, and they have wrongfully failed to pay or account for the yearly rents and profits of said land; that during the first five years the rental value of said land was enough, and more than enough, to fully pay and discharge said mortgage debt, which did not exceed the sum of $300, when the mortgage was assigned to defendants. Plaintiffs ask that the defendantsset forth all their adverse claims to said property, and that the validity thereof be determined and that the same be adjudged null and void; that plaintiffs do have and recover the immediate possession of said land with $400 a year for the rental value thereof, and that so much of the yearly rental value as may be necessary be first applied to the satisfaction and discharge of the mortgage in the same manner as if it had been indorsed thereon on the 1st day of December each year, and that plaintiffs have such other and further relief as may be just and the costs and disbursements of this action.

Defendants deny that plaintiffs have any estate or interest in said land; deny that plaintiff Blessett holds the legal title in trust for said other plaintiff, and allege that by virtue of a quitclaim deed dated February 13, 1907, plaintiff Blessett conveyed all his interest in said land to plaintiff Abbey, and allege that defendants are the owners and entitled to the possession of said land by virtue of a tax deed dated March 11, 1897, issued by the county auditor of Towner county to W. F. Galloway and by a warranty deed from Galloway to said defendants executed May 20, 1897; deny that the deeds and mortgages and papers mentioned in plaintiffs' complaint are void, and allege that said deeds and papers are valid and legal; that said mortgage was given for a good and valuable consideration. Defendants allege that more than three years have expired since the execution and delivery of the tax deed mentioned in plaintiffs' complaint and set forth in defendants' answer; as a further defense, that defendants are the owners of the said land and have been in actual, open, adverse, and undisputed possession of such land for more than ten years prior to the commencement of this action, that they have paid the taxes and assessments legally levied thereon during said time, and that plaintiffs' alleged cause of action accrued more than 10 years prior to the commencement of this action, and that the same is barred by the statute of limitations.

The facts established on the trial, as far as material here, are as follows: The land was patented to Robert Blessett. Blessett mortgaged the land to W. F. Galloway, defendant's grantor, January 25, 1890, to secure payment of a note for $700 of even date due January 25, 1891. On the 1st day of December, 1891, the land was sold for the delinquent taxes of 1890 to the state of North Dakota, and a certificate of sale issued thereon to the said state of North Dakota. On the 8th day of February, 1894, the said certificate of sale was assigned by George L. Main, county auditor of Towner county, to W. F. Galloway, in which assignment the land was described as the N. E. 1/4 of section 2. On the 25th day of November, 1896, notice when time for redemption from the said tax sale, hereinbefore mentioned, would expire, was published, in which notice the land was described as the N. E. 1/4 of section 2. On the 11th day of March, 1897, a tax deed on the tax sale hereinbefore mentioned was made by the county auditor of said Towner county to said W. F. Galloway. In the fore part of June, 1896, the defendant E. L. Turcotte by an oral contract made with W. F. Galloway, through his agent Geo. Galloway purchased said land for the sum of $300 and took possession of it, broke 40 acres, farmed and cultivated the land ever since, until the trial of the action, and paid all taxes levied and assessed against said land beginning with the year 1896. At the time defendant Turcotte made the agreement with said Galloway for the purchase of said land, Turcotte took possession and went to breaking on the land. No person laid any claim to said land until the spring of 1907, when plaintiff Blessett wrote defendant Turcotte a letter stating that he had sold the land. As a payment for the purchase price of said premises on August 10, 1896, defendant E. L. Turcotte executed three promissory notes for $100 each, payable to W. F. Galloway, due, respectively, November 1, 1896, November 1, 1897, and November 1, 1898, which said notes were secured by a real estate mortgage executed on said premises to said W. F. Galloway by defendants Turcotte, who are husband and wife; that said notes were paid; that on the 20th day of May, 1897, said W. F. Galloway and wife executed and delivered to defendants Turcotte a warranty deed of said premises, consideration $300. On December 30, 1901, the said W. F. Galloway assigned to defendant E. L. Turcotte the real estate mortgage hereinbefore mentioned, given by plaintiff Blessett to said Galloway. On February 13, 1907, plaintiff Blessett conveyed to plaintiff Abbey by deed of quitclaim all his interest in said premises, and in the same instrument assigned to said Abbey all of Blessett's interest in the rents and profits, and authorized him to commence and maintain such action as may be necessary to recover the possession of such land and the rents and profits, and also appointed said Abbey his (Blessett's) attorney in fact to commence such action. The said quitclaim deed was executed in the city of Winnipeg, in the province of Manitoba, Canada. Plaintiff Blessett never paid any part of the indebtedness secured by the mortgage given by him to W. F. Galloway.

The case was tried by the court without a jury, and on the 21st day of December, 1907, the court made findings of fact and conclusions of law in favor of plaintiffs and against the defendants. The court found, among other things, that the defendants claim some interest or title to said...