D.S.B. Johnston Land Co. v. Mitchell

• Citation: 151 N.W. 23,29 N.D. 510
• Parties: D. S. B. JOHNSTON LAND CO. v. MITCHELL et al.
• Decision Date: 11 February 1915
• Court: North Dakota Supreme Court

29 N.D. 510

151 N.W. 23

D. S. B. JOHNSTON LAND CO.

v.MITCHELL et al.

Supreme Court of North Dakota.

Jan. 27, 1915.

Rehearing Denied Feb. 11, 1915.

Syllabus by the Court.

In the statutory action to determine adverse claims to real property, the plaintiff alleges that it has an interest in such property, and that defendants claim certain estates or interests in or liens upon the same, adverse to plaintiff. The usual prayer for judgment quieting the title is made, and plaintiff also prays for the recovery of the possession of the property from defendants with a money judgment for the use and occupation thereof. By their answer defendants put in issue plaintiff's alleged interestin such property, but admit that it has certain equities therein. They also by way of counterclaim allege title in fee, and pray that such title be quieted in them as against all claims asserted by plaintiff.

The trial court found in defendants' favor as to the ownership of the land, but denied them any affirmative relief under their counterclaim except upon condition that they first do equity by satisfying or tendering the amount of all claims held by plaintiff against such real property, consisting of two old mortgages long since barred by the statute of limitations and numerous taxes paid by them, aggregating, with interest to November 1, 1912, the sum of $2,543.27.

On a trial de novo in the Supreme Court, the findings and conclusions of the trial court are in all things affirmed, except as to one question of fact mentioned in the opinion, regarding which counsel inadvertently failed to furnish any competent proof. A new trial is granted for the purpose of permitting proper proof thereof to be supplied.

In the statutory 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.

Plaintiff's only source of title is through an alleged foreclosure in 1887 of a commission mortgage on the premises upon which there was only a small sum due. Such mortgage was given in 1884 and ran to a copartnership under the firm name of D. S. B. Johnston, Son & Hance. In 1885 a corporation was organized under the name of D. S. B. Johnston Land Mortgage Company, which purchased and took over the assets of such copartnership, including such mortgage. At the date of such attempted foreclosure proceedings, there was nothing of record to show ownership of this mortgage in such corporation. Held, following Hebden v. Bina, 17 N. D. 235, 116 N. W. 85, 138 Am. St. Rep. 700, that the exercise of the power of sale in said mortgage by such corporation was not authorized under the provisions of section 5412, Comp. Laws 1887, and consequently the foreclosure was void and the purchaser at the sale, the D. S. B. Johnston Land Mortgage Company, acquired no title thereunder, but merely became an equitable assignee of such mortgage.

A purchaser at a void foreclosure sale does not become a mortgagee in possession unless he acquires the actual possession of the premises through the express or implied consent of the mortgagor or owner of the land. The premises being at the time unoccupied, wild prairie land, the fee owner will be deemed to be in the possession thereof.

A recital, in the sheriff's deed under foreclosure proceedings by advertisement, that the D. S. B. Johnston Land Mortgage Company has been renamed D. S. B. Johnston Land Company is no evidence of the fact of such change in name.

The plaintiff having failed to establish its alleged title, or even that it is a mortgagee in possession, is not in a position to assail the validity of defendants' title and right of possession.

For reasons stated in the opinion, the statute against champerty and maintenance cannot be urged by plaintiff to destroy defendants' title.

To entitle defendants to affirmative equitable relief, they must do equity by paying or tendering to the plaintiff all sums equitably due it, and the fact that plaintiff purchased one of its mortgages upon the land long after it became barred by the statute of limitations does not exonerate defendants from paying such sum as may be due thereon as a condition to their obtaining affirmative relief.

Appeal from District Court, Sargent County; Allen, Judge.

Action by the D. S. B. Johnston Land Company against F. H. Mitchell and others. From judgment for defendants, plaintiff appeals. Affirmed except as to one question, as to which a new trial is granted, that proof thereon may be supplied.

Watson & Young and E. T. Conmy, all of Fargo, for appellant. Purcell & Divit, of Wahpeton, and W. V. Hoagland, of North Platte, Neb., for respondents.

FISK, C. J.

This cause is here for trial de novo of the entire case. It is the statutory action to determine adverse claims to real property, and comes here on appeal from the judgment of the district court of Sargent county.

The complaint is in the usual form, alleging that the plaintiff has an interest in the real property therein described; that the defendants claim certain estates or interest in or liens or incumbrances upon the same adverse to the plaintiff; the prayer for judgment being:

“(1) That the 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 incumbrance upon, said property. (3) That the title be quieted as to such claim, and that defendants be forever debarred and enjoined from further asserting the same. (4) That it recover possession of the premises described. (5) That it recover $500 as the value of the use and occupation and the value of property wasted and removed therefrom. (6) That plaintiff have such other general relief as may be just, with its costs and disbursements.”

The answer consists of a general denial, with the exception that it admits that the defendants Olivia Scoville and Louise M. Mitchell claim an estate or interest in the lands described adverse to the plaintiffs. Such answer then contains paragraphs 3 and 4, as follows:

“Further answering, the defendants deny that the plaintiff has any estate or interest in the said lands, but in that behalf they admit that the said plaintiffs have in equity a lien or incumbrance upon the same, in that on the 15th day of July, 1884, one Frank Harrington, the then owner of said lands, did make, execute, and deliver a mortgage thereon in the sum of $52.50, which mortgage was, on July 22, 1884, filed for record, and recorded in Book G, page 133, of the Mortgage Records of Sargent County, North Dakota, which mortgage is now in equity owned by the plaintiff, the exact amount due thereon at this time is unknown to defendants, they having no means of knowledge of the rate of interest borne by the indebtedness secured by said mortgage, or of the payments, if any, that have been made thereon; and the defendants hereby tender to the plaintiff, and offer to pay into court for its benefit, the amount now due upon said mortgage.

IV. Further answering, the defendants allege that the defendants Olivia Scoville and Louise M. Mitchell are the owners in fee simple of the lands described in the complaint, and the origin, nature, and extent of their title is as follows, to wit: On the 30th day of July, 1888, one Frank Harrington became, by patent from the United States, vested with the title thereto, and on the 6th day of June, 1901, the said Frank Harrington did, by warranty deed, duly made, executed, and delivered, convey the said lands to the said defendants, which deed was, on the 18th day of June, 1901, duly filed for record, and recorded in the office of the register of deeds of Sargent county, N. D., in Book V on page 592. Further answering, and by way of counterclaim, the defendants allege: That the defendants Olivia Scoville and Louise M. Mitchell are the owners of the lands described in the complaint deraigning their title thereto from one Frank Harrington by deed of date June 6, 1901; he, the said Harrington, having acquired the title thereto by patent from the government of the United States on October 30, 1888. That, under the deed aforesaid from the said Harrington, the said defendants went into the actual and adverse possession of the said lands, in good faith believing they were the owners thereof, and permanently improved the same by building a permanent and substantial fence thereon, the value of which improvement was and is the sum of $200. That the value of the said land, exclusive of the said improvements, is $3,200.

Wherefore, the defendants pray that the plaintiff take nothing by this action, but that the defendants Olivia Scoville and Louise M. Mitchell be adjudged to be the owners in fee simple of the lands described, and that their title thereto, and all of the pretended claims of the plaintiff, except their mortgage right therein, as set forth in this answer, be adjudged null and void, and that the court determine the amount due upon said mortgage, and, upon the payment of such amount into court for the benefit of the plaintiff, that it be decreed that they have no right or interest of any kind in and to the said lands, and, in case it be determined that the said defendants have no right in and to the said lands superior to the rights asserted by the plaintiff, then that they recover of the plaintiff $200, the value of the permanent improvements aforesaid, and that the judgment therefor be declared a lien upon the said land, and that the defendants have any other and further relief that may be equitable, together with their costs and disbursements.”

A reply to the counterclaim contained in the answer was served as follows:

“I. Denies each and every allegation therein contained.

II. Further replying, plaintiff alleges that at the time that certain deed, dated June 6, 1911, in which Frank...