Finlayson v. Peterson

• Decision Date: 03 January 1902
• Citation: 11 N.D. 45,89 N.W. 855
• Parties: FINLAYSON v. PETERSON.
• Court: North Dakota Supreme Court

11 N.D. 45

89 N.W. 855

FINLAYSON

v.PETERSON.¹

Supreme Court of North Dakota.

Jan. 3, 1902.

Syllabus by the Court.

1. This action involves the title and right of possession of a quarter section of land. The original complaint alleged title in the plaintiff, and that the defendant entered upon the land unlawfully, and unlawfully withheld the possession from the plaintiff. Said complaint further alleged that an attempt had been made to foreclose a certain mortgage upon the land, and that a pretended sale and pretended sheriff's deed had been made and executed pursuant to such foreclosure proceeding, and that said sheriff's deed had been recorded, and, further, that the purchaser at such foreclosure sale had attempted to convey said land to the defendant by a deed of warranty, which deed had been recorded. Said complaint also set out facts showing that said attempted foreclosure proceeding was illegal and wholly void. By said complaint the following relief was asked: First, that title be quieted in the plaintiff; second, that plaintiff recover possession of the land, with damages for the value of the use; third, that said foreclosure proceeding, including the sheriff's deed, be adjudged illegal and void, and that said deed and the purchaser's deed to the defendant be annulled and canceled of record. Subsequently, and after, on appeal to this court, it was adjudged that said foreclosure proceeding was illegal and wholly abortive, the plaintiff filed an amended complaint in the district court, in which the allegation in the original complaint to the effect that the defendant took possession and held possession of the land unlawfully was omitted and in lieu thereof it was alleged that defendant took possession under his mortgage, and had continued to farm the land as a mortgagee for 11 years; and upon this allegation the plaintiff demanded as relief an accounting in lieu of the value of the use previously asked for, and the plaintiff further asked for the possession of the land, and that said before-mentioned clouds upon his title should be removed, and that the title be quieted in plaintiff, and for several relief in equity. Defendant moved in the district court to strike out the amended complaint upon the ground that the same set out a different claim and cause of action from that pleaded in the first complaint. This motion was denied. Held, for reasons stated in the opinion, that such ruling was proper. The claim and cause of action alleged in the amended complaint, as well as the relief sought, was in its general scope the same as in the first complaint, and the relief sought in both was equitable relief; and none the less so because the plaintiff, with other relief, asks the possession of the land, and compensation in money for its use.

2. The mortgage, in terms, permitted the mortgagee to pay the taxes assessed against the land, and add the amount so paid to his claim. This was not done, but before the attempted foreclosure the mortgagee obtained two tax deeds of the land, and the alleged title obtained by the tax deeds was conveyed to the defendant. A third tax deed was obtained by the defendant while he occupied the land as grantee of the purchaser at the foreclosure sale. Held, for reasons stated in the opinion, said two first mentioned tax deeds were void and conveyed no title; and held, further, that all of said tax deeds were obtained by a trustee of the land, and that for this reason the deeds cannot be set up as a title hostile to the plaintiff's title.

3. Held that, inasmuch as the foreclosure was illegal, the defendant acquired no title to the land, either by said tax deeds, or by the deed of warranty given him by the purchaser at the foreclosure sale.

4. Defendant took possession of the land in 1888, and continuously cultivated the same until the trial of the action in the fall of 1900. Defendant took possession in good faith and peaceably, believing that he was the owner under said deeds of conveyance, and did not, in taking possession, intend to assume the relation of a mortgagee in possession. The mortgage, in terms, authorized the mortgagee or his assigns to take possession upon default, and thereafter account to the mortgagor for the rents. It appeared further by defendant's answer that the defendant took possession of the land with the knowledge and acquiescence of the mortgagor. Held, upon this state of facts, that the mortgagee's possession, under the law, was that of a trustee, and that he could be required to account and to surrender possession to plaintiff after the net rents, issues, and profits of the premises had discharged the debt and all lawful taxes paid by the defendant, with interest.

5. The defendant acquired title to the note and mortgage, and the same were transferred to him, and in his possession at the trial. Held, that the defendant had all the rights of the mortgagee, both by said transfer, and by reason of being subrogated to the rights of the mortgagee, which rights were acquired by the purchaser at the abortive foreclosure sale.

6. Held, further, that said defendant, having taken possession peaceably and by the express consent of the mortgagor, and by her knowledge and acquiescence, could not be ejected from the land in any form of action until his debt and other just claims for taxes were paid.

7. The accounting and the judgment of the district court having been examined and found to be just and equitable, the same are in all things affirmed.

Appeal from district court, Grand Forks county; D. E. Morgan, Judge.

Action by Alexandrina Finlayson against Peter C. Peterson. Judgment for plaintiff, and defendant appeals. Affirmed.

Bosard & Bosard, for appellant. W. H. Standish and George A. Bangs, for respondent.

WALLIN, C. J.

This action was commenced in October, 1893. In the original complaint it was alleged, in substance, that the plaintiff is the owner in fee of the quarter section of land described in the complaint; that the defendant on the 13th day of November, 1888, unlawfully took possession of the land, and unlawfully withholds the possession from the plaintiff; that the rents, issues, and profits of the land during the period of defendant's unlawful occupancy thereof were of the value of $2,000. Said complaint further alleged that the defendant claimed to be the owner of the land under a certain deed of warranty executed and delivered to him by one James Milne on the 30th day of October, 1888, which deed was properly recorded, but it is alleged that said James Milne, when said deed was made and delivered to defendant, had no legal right to convey the land, and had no title thereto; that the pretended right to convey of said James Milne was based upon an attempted mortgage foreclosure sale of the land made on the 25th day of January, 1886, and pursuant to which sale a sheriff's deed, dated November 22, 1888, was executed and delivered to Milne, and subsequently recorded; and that said attempted foreclosure sale was made by advertisement under a mortgage covering said land, which was executed and delivered on November 27, 1882, by the plaintiff and her husband, one Donald Finlayson, and which was given to secure the payment of a promissory note for $1,000, becoming due November 1, 1887, with interest payable annually, which note and mortgage were given to one Robert S. Gurd to secure a debt due to the said Gurd. The complaint further stated, in effect, that said foreclosure proceedings, including the sheriff's deed, were illegal and wholly void because the notice of the sale was not published a period of 42 days prior to the date of sale, but that said proceedings, including the deed, being of record, were a cloud upon the plaintiff's title to the land in suit. By said complaint the plaintiff prayed for relief as follows: For the recovery of the possession of the land, together with $2,000 as and for the value of the use thereof; that the court should by its judgment declare that the defendant had no right or title to the land, and that the plaintiff is the absolute owner thereof; that the said sheriff's deed to James Milne, and said deed of warranty from Milne to the defendant, be adjudged to be illegal and void; and that the same be canceled of record. To these specific prayers for relief there was added a general prayer for relief in equity, and for plaintiff's costs and disbursements. To this complaint a general demurrer was interposed for insufficiency, and the district court sustained the demurrer. On appeal to this court the order sustaining the demurrer was overruled, and the case was in June, 1896, remanded for further proceedings. See Finlayson v. Peterson, 5 N. D. 587, 67 N. W. 953, 33 L. R. A. 532, 57 Am. St. Rep. 584. On September 28, 1897, an amended complaint was filed in the district court, which, in substance, embraced all the allegations of the first complaint, but omitted the allegation that the defendant unlawfully entered upon the land and ousted the plaintiff thereof. In the amended complaint the following facts not contained in the first complaint were, in substance, set out, viz.: That the supreme court had decided that the attempted foreclosure was abortive, and that it would follow from such adjudication that the two deeds based on the foreclosure conveyed no title to the defendant, save and except as, in equity, they operated as an equitable transfer of the mortgage and mortgage debt and taxes paid by the defendant. This new complaint further alleged that the defendant, since taking possession of the land, had leased the same to one Allison for a period of five years, viz., from 1890 to 1894, inclusive, and as and for a rental the defendant had received one-half share of the crops produced on the land during said rental period; that the plaintiff was unable to ascertain the precise aggregate value of said rental received by the defendant; that during the rest of said period of defendant's occupancy of the land, which...