Brown v. Comonow

• Decision Date: 09 January 1908
• Citation: 114 N.W. 728,17 N.D. 84
• Parties: BROWN v. COMONOW et al.
• Court: North Dakota Supreme Court

17 N.D. 84

114 N.W. 728

BROWN

v.COMONOW et al.

Supreme Court of North Dakota.

Jan. 9, 1908.

Syllabus by the Court.

Whether under section 4348, Comp. Laws 1887, being section 6151, Rev. Codes 1905, a person may give a trust deed as well as a mortgage upon real property as security for the payment of indebtedness, and whether the instrument referred to in the opinion is or was intended by the parties thereto to be a trust deed as distinguished from a mortgage, is not determined.

Such instrument, whether a trust deed or a mortgage, contains no power of sale authorizing any one, except the trustee therein designated, or his successor in trust, to sell the property in case of default; hence the attempted foreclosure by advertisement by the plaintiff, who was merely the assignee of the beneficiary under said instrument, was a nullity, and plaintiff acquired no title thereunder.

Express statutory authority is conferred by section 6159, Rev. Codes 1905, upon a mortgagor to designate the mortgagee or any other person to execute the power of sale upon default in the payment of the mortgage indebtedness.

In an action to determine adverse claims to real property, the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of his adversary's title.

Even if plaintiff had acquired title under such foreclosure proceedings, the proof shows that he conveyed the same to another prior to the commencement of this action, and having failed to show any title to the property, the judgment of the district court in defendant's favor was proper in so far as it denied any relief to plaintiff. The judgment, however, in so far as it quieted title in defendants, is erroneous, and the same is accordingly modified.

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

Action by William H. Brown against Sarah Comonow and others. Judgment for defendants, and plaintiff appeal. Modified and affirmed.Burke & Middaugh and Engerud, Holt & Frame, for appellant. Godfrey & Molander, McClory & Barnett, and Guy C. H. Corliss, for respondents.

FISK, J.

This action was brought to determine adverse claims to certain real property in Ramsey county, the plaintiff alleging ownership in fee of the property in controversy. The complaint is in the statutory form, and the answer consists of a general denial, and also alleges title in fee in the defendants, and prays that title be quieted in them.

The facts are undisputed, and are as follows: On November 10, 1886, one Lewis Comonow was the owner in fee of the property in controversy, and on said date he and his wife Sarah, one of the defendants, executed and delivered an instrument in form a trust deed of said property to secure the payment of $557 according to the terms of a promissory note executed on that day by the said Lewis Comonow and payable to one William F. Baird. By the terms of the instrument the grantors in form sold and conveyed the premises in question to one William G. Nixon in trust, he being designated in the deed as trustee and party of the second part; and said instrument provides that in case of death, absence, or inability to act of the said second party, then one Frank R. Davis is appointed as his successor in trust, and William F. Baird is designated as party of the third part. The instrument provides that in case the grantors shall pay such indebtedness and all taxes, insurance, etc., when due, the same shall be void, otherwise to be of full force and effect. It further provides that upon default in such payment the party of the second part shall be at once clothed with the legal ownership of the property, and become at once entitled to the possession thereof, and to the rents, issues, and profits, and upon application of the party of the third part, or the legal holder of said note, shall at once proceed to sell the property at public auction at the front door of the courthouse in said county, first giving public notice stating the time and place of sale, and of the property to be sold, by publishing such notice in a newspaper published in the county. It was also provided by said instrument that the person making said sale shall receive the proceeds thereof, and shall execute a deed of conveyance, which shall be effectual to pass the fee-simple title of said premises to the purchaser, and out of the moneys arising from the sale he shall pay the expenses of such trust and of such sale, including a stipulated attorney's fee, and the amount due on said promissory note, rendering the overplus, if any, to the first party. Other provisions are contained in said instrument, which, however, are not material to the questions here involved. On January 4, 1892, the said Baird, party of the third part, assigned to the plaintiff herein all his interest in the so-called trust deed, together with the note secured thereby, which assignment was, on May 11, 1899, recorded in the office of the register of deeds of Ramsey county. On said date, and once each week for six successive weeks thereafter, plaintiff caused notice of sale to be published in a newspaper in said county, signing his name thereto as assignee, which notice recited that the premises therein mentioned would be sold at the front door of the courthouse at the city of Devils Lake at 2 o'clock p. m. on June 30, 1899, to satisfy the indebtedness secured thereby. On the latter date the premises were sold pursuant to such notice, the sheriff of Ramsey county making the sale, and the plaintiff becoming the purchaser. Thereafter, and on July 29, 1901, the sheriff of Ramsey county executed and delivered to plaintiff a sheriff's deed pursuant to such sale, under which plaintiff claims title in this action. Defendant Sarah Comonow is the widow of Lewis Comonow, deceased, and the other defendants are his heirs at law, and they claim title as such heirs.

The plaintiff evidently proceeded in such foreclosure proceedings upon the theory that said instrument was a mortgage containing a power of sale running to the mortgagee or his assigns, to be exercised in the usual manner in case of default in the payment of the indebtedness secured thereby; and the chief controversy between the parties is whether the instrument aforesaid is a mortgage or a trust deed, and if a mortgage, whether it contains a power of sale which authorized plaintiff as assignee to foreclose by advertisement. Respondents contend that it is not a mortgage, and they assert that, even if it is, it contains no power of sale authorizing plaintiff as assignee to foreclose by advertisement, and this was the view taken by the trial court. Whether the instrument is a trust deed or a mortgage it is unnecessary for us to determine. It is argued by appellant's counsel that because it is an instrument transferring an interest in real property made only as security for the payment of money it is a mortgage. Such is not the test, as the law in force at the time the instrument was executed clearly demonstrates. Section 4348, Comp. Laws 1887, being section 6151, Rev. Codes 1905, reads: “Every transfer of an interest in real property other than in trust, made only as security for the performance of another act, is to be deemed a mortgage,” etc. From the language employed by the parties it would seem that the instrument was intended as a transfer of an interest in real property in trust as...