Goss v. Herman

• Decision Date: 06 May 1910
• Citation: 127 N.W. 78,20 N.D. 295
• Court: North Dakota Supreme Court

127 N.W. 78

20 N.D. 295

C. B. S. GOSS v. HENRY HERMAN, Leopold Jochem, James F. Trottman, S. N. Putman, E. S. Severtson, Frederick T. Day, Melvin Grigsby, and All Other Persons Unknown, Claiming Any Right, Estate or Interest in, or Lien or Encumbrance upon the Property Described in the Complaint, and All Unknown Heirs, Defendants. Melvin Grigsby and Frederick T. Day, Appellants

Supreme Court of North Dakota

May 6, 1910

On Petition for Rehearing June 25, 1910.

Appeal from District Court of Eddy county; Burke, J.

Action to determine adverse claims to real property. From a judgment quieting title in plaintiffs, defendants Grigsby and Day appeal.

Judgment of district court vacated and the action remanded for a new trial.

Judgment vacated and case remanded.

Maddux & Rinker and Grigsby & Grigsby, for appellant.

There must be statutory authority to make the record of a certified copy of an instrument notice or evidence. Devlin, Deeds § 665; Lund v. Rice, 9 Minn. 230, Gil. 215; Central Trust Co. v. Georgia P. R. Co. 83 F. 397; Porter v. Dement, 35 Ill. 478.

The law of a foreign state is presumed to be the same as that of the forum; Hickman v. Alpaugh, 21 Cal. 225; Brown v Wright, 21 L. R. A. 467 and notes, 58 Ark. 20, 22 S.W 1022.

Where the statute requires a schedule of property to accompany an assignment for the benefit of creditors, its absence is fatal to the assignment. Farmer v. Cobban, 4 Dak. 425, 29 N.W. 12; Landauer v. Conklin, 3 S.D. 462, 54 N.W. 322; Cannon v. Deming, 3 S.D. 421, 53 N.W. 863; Juliand v. Rathbone, 39 N.Y. 369.

Judicial proceedings of a foreign state have no extraterritorial force. Robertson v. Pickrell, 109 U.S. 608, 27 L. ed. 1049, 3 S.Ct. 407; Wells, F. & Co. v. Walsh, 87 Wis. 67, 57 N.W. 969; Segnitz v. Garden City Bkg. & T. Co. 107 Wis. 171, 50 L. R. A. 327, 81 Am. St. Rep. 830, 83 N.W. 327; Security Trust Co. v. Dodd, 173 U.S. 624, 43 L. ed. 835, 19 S.Ct. 545; Hutcheson v. Peshine, 16 N.J.Eq. 170; Osborn v. Adams, 18 Pick. 247; Bock v. Perkins, 139 U.S. 628, 35 L. ed. 314, 11 S.Ct. 677.

Sale of land in this state under assignment proceedings of a foreign jurisdiction is void. Story, Confl. L. §§ 428, 448, 551 & 555; Burrill, Assignm. § 204; Williams v. Maus, 6 Watts, 278, 31 Am. Dec. 465; Osborn v. Adams, 18 Pick. 247; City Ins. Co. v. Commercial Bank, 68 Ill. 348; Rhawn v. Pearce, 110 Ill. 350, 51 Am. Rep. 691; 3 Am. & Eng. Enc. Law, 2d ed. p. 53; Hutcheson v. Peshine, 16 N.J.Eq. 170; Loving v. Pairo, 10 Iowa 282, 77 Am. Dec. 108; Munson v. Frazer, 73 Iowa 177, 34 N.W. 804; Rogers v. Allen, 3 Ohio 489; Rockwell v. Brown, 42 How. Pr. 226; Heyer v. Alexander, 108 Ill. 385; Gardner v. Commercial Nat. Bank, 95 Ill. 298; McCormick v. Sullivant, 10 Wheat. 194, 6 L. ed. 301; United States v. Crosby, 7 Cranch, 115, 3 L. ed. 287; Kerr v. Moon, 9 Wheat. 565, 6 L. ed. 161.

Estoppels must be pleaded. Sutton v. Consolidated Apex Min. Co. 15 S.D. 410, 89 N.W. 1020; McQueen v. Bank of Edgemont, 20 S.D. 378, 107 N.W. 209; State v. Mellette, 16 S.D. 297, 92 N.W. 395; Bigelow, Estoppel, 5th ed. 507, 16 Cyc. Law & Proc. pp. 811, 812; Hall v. Henderson, 126 Ala. 449, 61 L. R. A. 621, 85 Am. St. Rep. 62, 28 So. 531; Beals v. Cohen, 27 Colo. 473, 83 Am. St. Rep. 96, 62 P. 948, 20 Mor. Min. Rep. 591; Martin v. Zelerbach, 38 Cal. 300, 99 Am. Dec. 365.

George W. Thorpe and Edward H. Wright, for respondents.

The law of a foreign state is presumed to be the same as the common law. Rev. Codes 1905, § 7317, subdiv. 41; Leonard v. Fleming, 13 N.D. 629, 102 N.W. 309.

A voluntary assignment by a citizen of a foreign state passes title to property in this state. Sexton v. Wheaton, 8 Wheat. 229, 242, 5 L. ed. 603, 607; Burrill, Assignm. § 9.

An assignment for the benefit of creditors is good whether an inventory is made or not. Ely v. Hair, 16 B. Mon. 239; Clark v. Mix, 15 Conn. 177; Woodward v. Marshall, 22 Pick. 473; Keyes v. Brush, 2 Paige, 311; Hollister v. Loud, 2 Mich. 310; Nye v. Van Husan, 6 Mich. 329, 74 Am. Dec. 690.

SPALDING, J. ELLSWORTH, J., being disqualified, W. C. CRAWFORD, Judge of the Tenth Judicial District, sat in his place by request.

OPINION

SPALDING, J.

This action was brought by C. B. S. Goss against Henry Herman, Leopold Jochem, James F. Trottman, S. N. Putman, E. S. Severtson, Frederick T. Day, Melvin Grigsby, and other persons unknown claiming any estate or interest in the Northwest 1/4 of section 32, Township 148 north, of range 66 west, in Eddy county, North Dakota. The complaint, in general, is for the determination of adverse claims, although it contains some allegations not included in the statutory form. It is unnecessary to set it out in full, or the answers, as the usual allegations will be sufficiently stated wherever necessary when considering the legal questions.

The defendant Grigsby answered, claiming title in himself and generally denying the allegations of the complaint, though admitting some, and he sets forth a counterclaim in the usual form and asks that the title be quieted in him. The defendant Day answers individually and in behalf of and as trustee for his grantee, the defendant Grigsby. Plaintiff had judgment, and the defendant Grigsby and Day appeal. The record discloses that on the 24th day of May, 1893, appellant Day was the owner in fee simple of the land described, and that on the 18th day of November, 1904, he executed and delivered to the appellant Grigsby, for a valuable consideration, consisting largely in the settlement or partial payment and settlement of indebtedness of said Day to Grigsby owing at that time in a large amount, a deed whereby he granted to Grigsby such land. This deed was filed for record in the office of the register of deeds in Eddy county on the 26th day of November, 1904.

The question in this case is whether, as against the respondent appellants have any title or interest in the described premises. The chain of title through which respondent claims, in brief, is as follows: A quitclaim deed from Day and wife delivered to the Plankington Bank May 24, 1893, which is shown, without conflict in the evidence, to have been delivered with deeds of a large amount of other property as security for indebtedness owning by Day to the bank, amounting to approximately, $ 200,000. This deed was recorded in the office of the register of deeds of Eddy county on the 3d day of July, 1893. A deed of assignment by the Plankington Bank, executed on the 1st day of June, 1893, to William Plankington, as assignee, in trust for the benefit of its creditors, which deed recites that it was made as provided by chapter 80 of the Revised Statutes of the state of Wisconsin and the acts amendatory thereto, and that it conveys, among other things, all and singular, the lands, tenements, and hereditaments and appurtenances, property, and effects of every kind and description, real and personal and mixed, belonging to said bank, or in which it has any right or interest, the same being more fully described in an inventory, under oath, of the officers of said bank, to be filed by it in the office of the clerk of the circuit court of the county of Milwaukee, in the state of Wisconsin, within twenty days after the execution thereof. A copy certified by a commissioner of the circuit court of Milwaukee county, Wisconsin, is the only record of this deed shown by the record, and this was recorded in the office of the register of deeds of Eddy county June 22, 1900. A quitclaim deed from Plankington, as assignee, to Irving M. Bean, as assignee of the Plankington Bank and successor to the said Plankington, dated August 28, 1899, recorded June 23, 1900. An order of the circuit court of Milwaukee county, Wisconsin, certified to by the clerk of that court as a correct copy, and dated June 18, 1899, wherein it is recited that proceedings were had on the 10th day of May, 1899, accepting the resignation of Plankington as assignee and, among other things, appointing Irving M. Bean as his successor in trust. A copy of an order of said circuit court, certified by the clerk thereof on the 2d of June, 1900, and bearing date December 20, 1899, and filed for record in Eddy county, June 22, 1900, wherein the court vacates and sets aside the order of June 18, 1899, appointing Bean as assignee, and appoints Henry Herman as assignee to succeed Plankington and Bean. A quitclaim deed from Bean as assignee to Herman as assignee, dated December 29, 1899, and recorded June 23, 1900. A copy certified by the clerk of the circuit court of Milwaukee county, Wisconsin, of a decree of that court bearing date May 28, 1900, and recorded in the office of the register of deeds of Eddy county June 23, 1900, wherein it is recited that Herman, as assignee, had on April 14, 1900, and April 25, 1900, petitioned that court for instructions and a decree relative to the land in question among other tracts, and that proof of service on the Plankington Bank had been made, and finding that on May 23, 1893, Day was the owner in fee and in possession of the land in question, and on that date conveyed the same to the Plankington Bank, and that the offer of Leopold E. Jochem for the land in question was a fair price therefor, and that it would be to the best interest of the assigned estate that his offer be accepted, and ordering, adjudging, and decreeing that the sale thereof to Jochem be confirmed, and Herman, as assignee, authorized and instructed to execute and deliver, as assignee, to Jochem a deed thereof, and that a certified copy of the findings and decree be annexed to such assignee's deed. This decree does not show service of the application or notice, or of any of the proceedings upon Day, or upon any person claiming under him except the Plankington Bank. A deed from Herman, as assignee, dated June...