Boschker v. Beek
| Citation | 122 N.W. 338,19 N.D. 104 |
| Decision Date | 22 June 1909 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Emmons County; Winchester, Judge.
Action by Peter Boschker against Henry Van Beek.
Judgment for plaintiff and defendant appeals. Reversed.
Judgment reversed and action dismissed.
H. A Armstrong and John H. Perry, for Appellant.
Geo. W Lynn and G. N. Williamson, for Respondent.
OPINION
Action to cancel a sheriff's certificate of sale on foreclosure of real estate by advertisement and the sheriff's deed issued thereunder, and to enjoin the defendant from asserting any interest in the premises described, plaintiff had judgment and defendant appeals. It is unnecessary to quote the pleadings.
It appears by uncontradicted evidence that one Hannah K. Loring, a resident of Massachusetts, made a loan of $ 425 to one Homme Boschker, and took as security therefor a mortgage upon the N.E. 1/4 of section 22 in township 129 N. of range 76 W., in Emmons county, N.D. This mortgage was executed and delivered by Boschker to Loring about the 15th day of June, 1889, and recorded in the office of the register of deeds of Emmons county, on the 2d day of August, 1889. The mortgagor is dead, and the plaintiff and respondent is his son. The appellant signed the mortgage note and two others given by other parties to Hannah K. Loring, as guarantor. Little or nothing was ever paid on the interest or taxes by the mortgagor, and no part of the principal has been paid. On the 9th day of September, 1898, the firm of Herreid & Williamson, of South Dakota, having been employed by the mortgagee for that purpose, issued a notice of foreclosure sale by advertisement to foreclose such mortgage, claiming that there was then due thereon the sum of $ 1,092.08. Due publication was made, and the premises were sold on the 5th day of November, 1898, and struck off to Hannah K. Loring, the mortgagee, for the sum of $ 550, and a sheriff's certificate issued in her name and delivered to her attorneys. This certificate was duly recorded in the office of the register of deeds of Emmons county, N.D., on the 14th day of November, 1898. While the notice of sale was running in the newspaper, Hannah K. Loring died. It does not appear from the record whether her attorneys were ignorant of her death at the time of the sale; but we presume they were. She left a will appointing one Batchelder executor, and in due time he qualified as such in the state of Massachusetts, and Herried & Williamson thereafter acted as his attorneys in relation to the mortgage in question and the notes on which appellant was guarantor. They sued appellant in South Dakota to recover the balance due on such notes after foreclosure, and he paid such balance and among other things, took an assignment of the sheriff's certificate of the Boschker mortgage at figures amounting to something over $ 700; the land then being worth from $ 700 to $ 800. This assignment bore date March 29, 1900, and was duly recorded in Emmons county. At the time of the assignment of the certificate to appellant, Williamson represented to him that it was perfectly good. The money received by Williamson from appellant was transmitted to the executor of Loring's will and by him paid to her devisees and heirs, and his account showing such payment was approved by the probate court in Massachusetts. The Loring will was subsequently probated in Emmons county and the sale of the certificate approved by the court.
May 6 1905, the land not having been redeemed, the sheriff of Emmons county executed his deed therefor to appellant as assignee of the certificate of sale, and this deed was duly recorded. February 8, 1904, George W. Lynn, an attorney residing at Linton, N.D., wrote a letter to Batchelder, the executor, as follows: Linton, N.D., Feb. 8, 1904. John M. Batchelder, Holliston, Mass.--Kind Sir: Your favor of the 2d inst. received and contents noted, and your promptness in answering my former letter is appreciated. A client of mine has requested that I pass upon the title of certain tracts of land in this county in which the late Hannah K. Loring had an estate prior to her death. I wish to state at this time that the purpose of my correspondence with you is not adverse in any manner to the interests of yourself or of the heirs and devisees of the said Hannah K. Loring; but is for the purpose of perfecting a good and unquestionable title to the said tracts. To this end I have advised that, in order to obtain such title, he should secure a certified copy of the will which has been probated in your state, together with quit-claims from the heirs and devisees of the late Hannah K. Loring, all of which should be placed of record in this state. Will you undertake to secure the quitclaims and in your opinion what will be the costs of securing them, including your services, providing I prepare all papers according to the laws of our state, and you attend to having the same executed? I have this day written the register of probate to ascertain the cost of securing the certified copy of the will, and when I have heard from you, and if everything is satisfactory to my client, I will send you the papers together with a draft for the amount. An early reply will be appreciated, and...
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