Buxton v. Sargent
| Decision Date | 14 May 1898 |
| Citation | 75 N.W. 811,7 N.D. 503 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes County; Glaspell, J.
Action by Thomas J. Buxton against Homer E. Sargent to quiet title to certain lands. Plaintiff had judgment, and defendant appeals.
Affirmed.
Ball Watson & Maclay, for appellant.
A vendor's lien by statute is subject to the rights of those purchasers only who have bought in good faith and for value. Sections 4830, 4832, Rev. Codes. The action to determine adverse claims to land is equitable in its nature. 3 Pom. Eq. Jr. 1396; Book v. Mining Co., 58 F. 827. The burden was on plaintiff to show that he or some one of his predecessors in title purchased the property in good faith for value. Simpson v. Del Hoyo, 94 N.Y. 189; Seymour v. McKinstry, 12 N.E. 348; Seymour v McKinstry, 14 N.E. 94; Weaver v. Borden, 49 N.Y. 286-298; Bowman v. Griffith, 53 N.W. 140; Shotwell v. Harrison, 22 Mich. 410. The reason of the rule as to the burden of proof in the case of negotiable paper where the paper has its inception in fraud applies equally to such cases as the one at bar. Seymour v McKinstry, 12 N.E. 348; Morris v. Daniels, 35 Ohio St. 406; Rush v. Mitchell, 32 N.W. 367; Vosburgh v. Diefendorf, 23 N.E. 801. The recital in the deed is not evidence of payment of consideration. 2 Devon Deeds, 821; Lake v. Hancock, 20 So. Rep. 811; Shotwell v. Harrison, 22 Mich. 410; Morris v Daniels, 35 O. St. 406; Houston v. Blackman, 66 Ala. 559; Halland v. Allen, 59 Ala. 283; Sillyman v. King, 36 Ia. 207; Galland v. Jackman, 26 Cal. 79; Bolton v. Johns, 47 Am. Dec. 404.
John W. Gilger, and Winterer & Winterer, for respondent.
Plaintiffs title came through Sarah E. Kindred and she was not a party to the action of Paine v. C. F. Kindred, and H. E. Sargent, neither was she mentioned in the notice of lis pendens. When the lis pendens was filed, Sarah E. Kindred owned legal title to the lands. Jorgenson v. M. & St. L. R. Co., 25 Minn. 209; Leitch v. Wells, 48 N.Y. 609; Bennett on Lis Pendens, 371-2; § 5251, Rev. Codes. To affect a purchaser who comes in pendente lite under the holder of the legal title, with constructive notice of the equity claimed against it, the holder of the legal title must have been impleaded at the time of the purchase. Should he be brought in subsequent to the purchase the lis pendens would not take effect by relation so as to charge the purchaser with notice. Parsons v. Hoyt, 25 Ia. 157; Bailey v. McGregor, 46 Ia. 669; Carr v. Callaghan, 3 Littell, 371; Marcey v. Fenwick, 9 Dana, 199; Fenwick v. Marcey, 2 B. Mon. 470; Wade on Notice, 355; Bennett on Lis Pendens, 162-446; 13 Am. and Eng. Enc. L. 882 and n. Only those are charged with notice whose purchase might render ineffective the decrees of the court. French v. The Loyal Co., 5 Leigh, 627; Miller v. Sherry, 2 Wall. 250; Hunt v. Haven, 52 N.H. 162. Recitals in a deed may in a proper case be and become prima facie evidence of the payment of a consideration. Hoyte v. Jones, 31 Wis. 404. Opinion of Campbell, J., in Shotwell v. Harrison, 22 Mich. 423; Lacustrine Fer. Co. v. L. G. & Fer. Co., 82 N.Y. 483; Wood v. Chapin, 3 Keyes, 509; Jackson v. McClusky, 2 Cow. 360; § § 3880, 3881, Rev. Codes.
The ownership of certain real estate is involved in this cause. The action was brought to quiet the plaintiff's title to the property. Defendant denied that plaintiff was the owner of the fee, and set up that he was himself the owner thereof. The prayer of his answer was that his own title might be quieted as against plaintiff's claim. To this counterclaim plaintiff interposed a reply, alleging anew the fact that he was the fee owner, and denying that defendant had any interest in the land. Plaintiff was successful below. Defendant brings the case here for trial anew.
It is undisputed that Charles F. Kindred was the owner of the premises in question in fee simple on the 10th day of July 1885, when he conveyed the same to Frank B. Thompson, who in turn transferred them to Sarah E. Kindred on July 15, 1885. Both of these deeds were recorded, the former July 13, 1885, and the latter February 19, 1886. On the 13th of August 1888, Sarah E. Kindred conveyed a portion of the property to the plaintiff, and the remainder thereof to the plaintiff and Charles McReeve. McReeve, on the 2d of July, 1890, deeded his one-half interest to the plaintiff, who thus became the owner of the entire property. All of these deeds were recorded prior to February 12, 1890. This brief recital of facts makes it evident that plaintiff is the owner of the property in fee simple unless his rights have been destroyed by the judicial proceedings under which the defendant claims, and to which reference will now be made. Charles F. Kindred, who it is conceded is the common source of title, purchased the land from Mark Paine, and on the 7th day of July, 1889, Paine commenced an action to enforce a vendor's lien on the land by the issuance of a summons, and the filing of a complaint and a notice of lis pendens. The parties defendant to this action were Charles F. Kindred and Homer E. Sargent, although at this time the title to the land had been transferred to Sarah E. Kindred by deeds which were then on record. Nothing appears to have been done with this action except to procure the return of the sheriff that the defendants could not be found for service, until the 12th of February, 1890, when an alleged amended summons and complaint were filed in the clerk's office. In these papers the two original defendants were named as defendants, and also Frank B. Thompson, Sarah E. Kindred, and Edgar W. Wylien. At the time the amended summons and complaint were filed the title to the land had, as appeared by the public records, been transferred to the plaintiff herein, and yet he was not made a party defendant. Nor was any new notice of lis pendens filed, or attempt made to amend the old notice. It is impossible to discover any sound principle which will justify a decision that plaintiff is bound by the final judgment in the action to establish and foreclose the vendor's lien. Judgment having been rendered in such action adjudging that the plaintiff therein was entitled to a lien on the land, and directing a sale thereof to satisfy such lien, the defendant's grantor purchased the property on the sale under such judgment, and thereafter conveyed the land to defendant. It is obvious that defendant cannot successfully contest the plaintiff's title to the property except on the ground that the judgment in the action to enforce the vendor's lien is binding on plaintiff, although he was not a party to the action. The basis of the defendant's claim that the plaintiff is bound by this judgment is that he is a purchaser of the subject of the litigation pendente lite. But this is not enough to make the judgment conclusive against him. The plaintiff must have bought from a party, or from some one who had himself purchased from a party. The common law did not declare that, after bill filed and subpoena served, all persons who might deal with the property in litigation should be concluded by the judgment, but only those who succeeded to the interest of a party to the suit. So far as that particular interest was concerned, the law, for obvious reasons, would not suffer any interference therewith pendente lite to affect the binding force of the final decree. It charged all persons with knowledge of the proceeding, and announced to them that they became interlopers at their peril. But those who purchased of strangers to the litigation were not affected by the final judgment, but could, despite such judgment, assert all rights which they had by such purchase secured. A purchaser pendente lite must know whether his grantor's rights are involved in litigation, but he need not inquire whether strangers are struggling among themselves about the same property. 13 Am. and Eng. Enc. Law, 882, and cases cited; Benn. Lis Pend. 162. In this state the filing of the bill or complaint is no longer sufficient to give subsequent purchasers constructive notice of the pendency of the action. The plaintiff, if he would secure a judgment which will bind such purchasers, must file in the proper office a notice of lis pendens containing the statements specified in the statute. Revised Codes, section 5251. It is true that the plaintiff in the action to enforce the vendor's lien did, in fact, file a notice of lis pendens. But this notice was not sufficient to affect the plaintiff, because it did not contain as a party defendant the name of the person from whom plaintiff purchased, and who was, when the notice was filed, the owner of the property according to the public records and in fact. Moreover, there was no action pending at that time against Sarah E. Kindred, from whom plaintiff bought. Both the complaint on file in the action which was then pending, and the notice of lis pendens filed therein, informed the plaintiff that no effort was being made to affect the interest of Sarah E. Kindred, who apparently and in fact was the only person who had any interest in the land, but that the plaintiff was proceeding against a third person, who was a stranger to the title, to obtain a decree. Should we regard the new summons and complaint which were filed three years later without any order of the court authorizing an amendment of the original summons and complaint as a legal amendment thereof, still the defendant can claim nothing from this concession, as the plaintiff was already the owner of the land when the new summons and complaint were filed. His deeds were then on record. And, even if these papers had been filed anterior to his purchase, still he would not be affected by the judgment rendered...
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