Burke v. Scharf

• Decision Date: 19 November 1909
• Court: North Dakota Supreme Court

124 N.W. 79

19 N.D. 227

CHARLES H. BURKE v. ADAM SCHARF

Supreme Court of North Dakota

November 19, 1909

Rehearing denied January 5, 1910.

Appeal from District Court, Ramsey county; Cowan, J.

Action by Charles H. Burke against Adam Scharf to determine adverse claims to real property, and to quiet title. Judgment for plaintiff, and defendant appeals.

Affirmed.

Anderson & Traynor and Guy C. H. Corliss, for appellant.

Burke Middaugh & Cuthbert, for respondent.

MORGAN C. J. ELLSWORTH and SPALDING, JJ., concur. FISK, J (dissenting), CARMODY, J., dissenting in part.

OPINION

MORGAN, C. J.

The complaint of the plaintiff states the following facts: On the 26th day of April, 1901, the defendant and one Brown entered into a contract in writing whereby the defendant purchased from said Brown 160 acres of land in Ramsey county, N.D., for the agreed price of $ 1,600, payable by delivering to said Brown one-half of the crops grown upon said land each year. The defendant has paid upon said contract the sum of $ 516.88, in two payments, the last payment having been made in January, 1903, and no payments have been made after that date, although the defendant has raised crops upon said land during other years, but has not turned over the proceeds thereof; that said Brown has sold and transferred, by a quitclaim deed, all his right, title and interest in the land and in the contract, to plaintiff herein; that on the 3d day of January, 1905, the plaintiff served a notice upon the defendant wherein his defaults in making payments upon said contract were recited, and he was required by said notice to comply with the terms of the contract within thirty days from the date of service of said notice upon him; that the said notice was personally served upon said defendant, and on the 19th day of September, 1905, the plaintiff caused to be served upon said defendant a further notice in writing wherein and whereby he was notified that the contract entered into by him and said Brown, which had been duly assigned by said Brown to the plaintiff, was canceled, terminated, and ended, and the defendant was further required to relinquish possession of said premises. In said notice, the note which said defendant had given to said Brown for the purchase price of said land, dated April 26, 1901, for the sum of $ 1,600, was offered to be returned to the defendant; that the defendant refused to accept said promissory note, and the plaintiff thereafter caused the same to be deposited in the Ramsey County National Bank of Devils Lake, with instructions to said bank to deliver it to said defendant without conditions upon his demand therefor.

The complaint also contains the following allegations: "That, by reason of the premises, defendant's right to said premises and the possession thereof have ended, and the plaintiff is the owner in fee simple and entitled to the immediate possession of said premises and the whole thereof, and on information and belief that the said defendant claims certain estates or interests in, or lien, or incumbrances upon said premises adverse to the plaintiff." The prayer for relief is in the following language: "Wherefore, plaintiff prays judgment that it be adjudged and decreed that the said defendants be required to set forth all their adverse claims to the property above described, and that the validity, superiority, and priority thereof be determined; (2) that the same be adjudged null and void, and that they be decreed to have no estate or interest in, or lien, or incumbrances upon said property; (3) that this title be quieted as to such claim, and that defendants be forever debarred and enjoined from further asserting same; (4) that he recover possession of the premises described (if possession be desired); (5) that he have such other general relief as may be just, together with costs and disbursements."

The defendant appeared and answered, setting forth the following facts: After admitting the making of the contract, and that crops were grown on said land during the years 1903 and 1904, and that no payments were made upon said contract except those set forth in the complaint, and that the defendant did not accept the return of the promissory note, and that the notices set forth in the complaint were duly served upon the defendant, the answer alleges that all defaults were waived by the plaintiff by reason of his delay in forfeiting said contract. The answer further contains a denial that the plaintiff or said Brown is, or ever was, the owner of said premises or in possession thereof. The answer further alleges that the defendant is now the owner in fee simple of said land, by virtue of a conveyance thereof to him from one Verone Deutz, who was the owner thereof on the 19th day of December, 1903, on which day she conveyed the same to this defendant; that said Verone Deutz was the absolute owner of said premises by virtue of having title thereto through regular conveyances in regular chain from Howard, the original owner and patentee of said land. The answer demands the following relief: "Wherefore, the defendant asks that he be decreed to be the owner in fee simple of the above described land; that the plaintiff be decreed to have no interest in said property; that the title to said property be quieted in said defendant; that the defendant have possession of the promissory note, for his costs and disbursements herein, and for such other and further relief as the court deems equitable."

The complaint sets forth a cause of action to determine adverse claims. The facts show that the plaintiff claims to be the absolute owner of this land, through a sheriff's deed under a foreclosure of the Howard mortgage, and alleges cancellation and forfeiture of the contract between Brown and the defendant. The complaint is drawn under chapter 5, p. 9, laws 1901, prescribing when an action to quiet title and determine adverse claims may be brought by one in possession, or by one out of possession. This was intended, and does serve the same purpose as the action of ejectment under the old practice. Under this act, title to land may be determined and possession of land decreed to the party having the title thereto, after proper proceedings. In other words, the title to land and restitution of the possession may be decreed in an equitable action brought to determine adverse claims and to quiet title under said chapter.

The defendant answers by setting forth absolute ownership in himself, and asks for affirmative relief; that the title be quieted in him by virtue of such ownership under the Deutz deed. The district court made findings of fact and conclusions of law in favor of the plaintiff and against the defendant, and ordered judgment in favor of plaintiff quieting the title in him, and ordered that the plaintiff have possession of said premises. The judgment or decree did not adjudge that the plaintiff have possession of the premises. The defendant has appealed from the judgment entered pursuant to such findings of fact and conclusions of law, and demands a review of all the evidence under the provisions of section 7229, Revised Codes 1905.

The following facts are conceded: Both parties claim title through Howard as their source of title, and he was the patentee of the land from the United States government. Plaintiff claims through a sheriff's deed under foreclosure of a mortgage given by said Howard. This foreclosure is conceded to have been invalid. It is not disputed that Brown was in possession of the premises under the sheriff's deed, or that he placed the defendant, Scharf, in possession of said land under the executory contract for the purchase of said land, set forth in the plaintiff's complaint. It is also now conceded that Scharf has never been out of such possession under said contract since April 26, 1901, when said contract was entered into. No person has ever been in actual possession of said land except the plaintiff, or Brown, or the defendant, since the year 1886, when Howard left said premises. On June 1, 1901, one, Joseph Blass, who continued to be the owner of the fee to this land on account of said invalid foreclosure, conveyed the same to one Walters, for a nominal consideration of $ 5.50, and, on the same day, said Blass conveyed the same to said Brown for a consideration of $ 5.50. The Walters deed was delivered first, although both deeds were mailed to the respective grantees at the same time, but the Brown deed was sent to a bank at Devils Lake with instructions to deliver to him when said consideration was paid, which caused the delay in the delivery of this deed. The plaintiff contends that the Walters deed was void under the provisions of section 8733, Rev. Codes 1905, making it a misdemeanor to convey a pretended title unless the grantor has been in possession of the land, or received the rents thereof for a space of one year before the giving of the deed. It is beyond dispute that the land was then adversely held as against Blass, by Brown or Scharf, and that Blass had not been in possession thereof, nor had he received the rents thereof for more than one year prior to giving such deed. The defendant claims that Blass' deed could not convey and did not convey any title to Brown for the reason that there was no title that Blass could convey to Brown after the Walters deed. In other words, the contention is that the Brown deed was a nullity because Blass had conveyed all of his title to Walters, and, because that deed was first delivered, the Brown deed never became effective for any purpose.

Conceding, for the purpose of this case only, that the Brown deed was subsequent to the Walters deed because held by the bank until the consideration was paid and until after the Walters deed was...