Fendrich v. Buffalo Pitts Co.
| Decision Date | 16 December 1920 |
| Court | North Dakota Supreme Court |
Action in district court, Dunn county, Crawford, J.
From a judgment in favor of the answering defendant, the plaintiff has appealed.
Affirmed.
Judgment affirmed with costs to the respondent.
J. P Cain, for respondents.
A mortgage properly acknowledge may be introduced in evidence and read without further proof, and, when so introduced and read, it makes a prima facie case, although its execution is denied by a verified answer. Mortgage Co. v. Hegwer (Kan.) 51 P. 915; Murray v. Foskett (Minn.) 130 N.W. 14; Tucker v. Helgren, 102 Minn. 382, 113 N.W 912; Brockman v. Rees, 173 P. 525; Bliss v Waterburg (S.D.) 131 N.W. 721; Akins v. Adams, 256 Mo. 2, 164 S.W. 603.
Appellants cannot abandon the theory upon which they tried the case below and adopt a new and different theory on appeal. Ugland v. Bank, 23 N.D. 536; R. v. R. Com. 31 N.D. 597; Crisp v. Bank, 32 N.D. 263; Hocksprung v. Young, 27 N.D. 322, supra.
M. L. McBride and T. F. Murtha, for respondents.
This is an action to determine adverse claims concerning 160 acres of land. The answering defendant asserts the lien of a mortgage, and prays for its foreclosure. At the trial the defendant offered in evidence certain notes secured by the mortgage, bearing the signature of Beartes Fendrich, one of the plaintiffs, and the abstract of title covering the land. It was stipulated between the parties that such abstract might be considered as evidence in lieu of the record excepting a certain deed mentioned therein. A witness for one of the defendants also identified the signature of Beartes Fendrich, as her signature upon the notes. The trial court, upon findings, rendered judgment decreeing a foreclosure of the mortgage.
From the record it appears that subsequent to this judgment, dated May 13, 1920, the plaintiffs filed their reply which was acknowledged on August 12, 1920.
The plaintiff complains, upon this appeal, that the mortgagee failed to prove in the record the due execution of the notes and mortgage and failed to allege and prove the possession of a power of attorney by the attorney for the mortgagee. These contentions are wholly without merit.
Under the stipulations made, the statutory presumption of the due execution of the mortgage obtains. Comp. Laws 1913, § 5597. Concerning the execution of the notes, proof was produced. No objection was made by demurrer or otherwise concerning the failure of the mortgagee ...
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