Grandin v. Emmons
| Decision Date | 04 May 1901 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Traill County; Pollock, J.
Action by E. B. Grandin against Gunder G. Emmons and others. Judgment for defendants, and plaintiff appeals.
F. W Ames, for appellant.
It was not necessary in the absence of fraud to read over the instrument to Mrs. Emmons where she signed by mark. Kranz v. Srein, 33 At. Rep. 1031. The mortgage was duly acknowledged, and this alone entitled it to be received in evidence. § 5696, Rev. Codes; Anglo-American Mtg. Co. 51 P. 915; Wilkins v. Moore, 20 Kan. 538; Webb v. Holt, 81 N.W. 637; Cameron v. Calkins, 44 Mich. 531; Webb. on Record of Title, 65. Where a mortgage is signed by a husband and wife and shows a certificate of acknowledgment by both, fair on its face, a defense by the wife on the ground that it was executed under duress or undue influence, and that she never in fact acknowledged the mortgage, cannot be sustained except on clear, convincing and satisfactory evidence. The unsupported evidence of the wife alone will not suffice. Smith v. Allis, 9 N.W. 155; Cameron v. Calkins, 7 N.W. 157, 44 Mich. 531; 1 A. & E. Enc. L. (2d Ed.) 560; Karscher v. Gans, 83 N.W. 431.
M. A Hildreth, for respondents.
Our statute does not cover an acknowledgment taken outside of the state. The certificate of the officer must be accompanied by higher evidence certifying to his official character and signature before such document can be offered in evidence. 1 A. & E. Enc. L. (2d Ed.) 535; Titman v. Thornton, 16 L. R. A. 41. A foreclosure by advertisement cannot be effectual as against minors or the heirs of the mortgagor because they are not parties to the record, and all these persons are entitled to redeem. Johnson v. Johnson, 3 S.E. 606; Wilkins v. McGhee, 13 S.E. 84; Martin v. Noble, 29 Ind. 216; Kilgour v. Wood, 64 Ill. 345; Hodgen v. Guttry, 58 Ill. 431; Frische v. Cramer, 16 Oh. 125; Talman v. Ely, 6 Wis. 244; Hodgen v. Treat, 7 Wis. 263; Porter v. Kilgore, 32 Ia. 279; Valentyne v. Havener, 20 Mo. 133; Hafley v. Maier, 13 Cal. 13.
Action to recover the possession of real estate and to quiet and confirm the title thereto. The real estate in controversy comprises 160 acres, situated in Traill county. The defendants are in possession under a claim of title. Plaintiff alleges that he is the owner of said land, and that defendants have no right, title, or interest therein. The case was tried to the court without a jury. No evidence was offered by the defendants. At the close of plaintiff's testimony, at the request of defendants' counsel and on his motion, findings of fact and conclusions of law were made adverse to plaintiff's claim of title. Judgment was thereafter entered declaring certain transfers, upon which plaintiff bases his claim of title, void and of no effect. Plaintiff appeals from the judgment, and requests a review of the entire case in this court.
It is a stipulated fact that on December 1, 1885, Gunder G. Emmons was the owner of the land in controversy, and it is from this common source that both parties to this action claim the title they rely upon. Plaintiff sets forth his claim of title as follows: He alleges that on December 1, 1885, Gunder G. Emmons and Ingeborg G. Emmons, his wife, executed and delivered a mortgage covering said land to one Hiram D. Upton, to secure their joint note for $ 700, payable to said Upton, of even date with said mortgage; that on June 1, 1894, said Upton assigned said note and mortgage to one R. C. Alexander, by an instrument in writing; that said mortgage contained a provision authorizing the mortgagee, his heirs and assigns, in case of default in payment of said debt or interest thereon, "to sell said premises at public auction, and convey the same agreeable to the statutes in such case made and provided"; that, pursuant to a default in payment of the debt so secured, the said Alexander foreclosed said mortgage by advertisement, causing the notice of sale to be published in a weekly newspaper "six times, once in each week, for six successive weeks," which notice so published fixed the time of sale on June 13, 1896, at 2 o'clock p. m.; that on said date said premises were sold to R. C. Alexander, and a sheriff's certificate of sale duly issued to him; that thereafter, to-wit, on June 18, 1897, no redemption having been made, a sheriff's deed was duly issued to the said Alexander, the purchaser at said sale; that thereafter to-wit, on June 21, 1897, the said Alexander conveyed said premises to the plaintiff by executing and delivering to him a warranty deed therefor. All of the instruments above referred to were duly recorded in the proper office.
It is apparent that, if the foreclosure proceedings and the several conveyances are valid, plaintiff's title is perfect, and he is entitled to the relief he demands. The defendants do not claim title or right of possession by virtue of any conveyance. Their rights, if any they have, rest solely upon the fact that they are the heirs at law and next of kin of Ingeborg G. Emmons, who died prior to the foreclosure proceedings hereinbefore referred to. At the time of the execution of the mortgage, and up to the time of her death, she occupied the land in question with her husband as their homestead, and since her death the defendants have continued to so occupy it. One of the defendants, Peter Emmons, is still in his minority. The facts placed in issue by the answer are few, and require but brief mention.
The execution of the mortgage by Ingeborg G. Emmons is denied; also the assignment of the note and mortgage from Upton to Alexander. An examination of the evidence transmitted to this court leaves no doubt in our minds that the mortgage was executed by her, and that it was assigned to Alexander by Upton, as alleged in the complaint. The execution of the mortgage is satisfactorily shown by the testimony of one of the persons who witnessed its execution, and by the certificate of the notary public attached thereto, certifying to the acknowledgment of its execution by the mortgagors before such notary public. The transfer of the note and mortgage to Alexander is established by the introduction in evidence of the original written assignment, executed by Upton and duly acknowledged by him before a notary public, which acknowledgment is certified to by the notary public over his official signature and seal. Objection was made to the admission of this instrument on the ground that it is incompetent, and that no foundation was laid for its introduction. The particular ground of objection is that, the instrument having been executed and acknowledged in New Hampshire before a notary public of that state, it is necessary to have attached thereto the certificate of some other officer of that state of higher official rank, certifying to the official character and signature of such notary public, before the same can be held to be an acknowledged instrument, within the meaning of the statutes of this state. The objection is not well taken. Sections 3573, 3575, 3576, Rev. Codes, authorize the proof or acknowledgment of instruments to be made before a notary public, within this or any other state or foreign country. The authentication of the certificate of acknowledgment taken by a notary public is prescribed by § 3586, Rev. Codes, which provides that the certificate shall be authenticated by the signature and official seal of the officer. Aside from these express statutory provisions, it is a well-settled rule of law that "courts will take judicial notice of the seal of a notary public, and it proves itself prima facie by its appearance upon the certificate." Green v. Gross, 12 Neb. 117, 10 N.W. 459, and cases cited on page 124, 12 Neb., and page 461, 10 N.W.; Hoadley v. Stephens, 4 Neb. 431; Galley v. Galley, 14 Neb. 174, 15 N.W. 318; Southerin v. Mendum, 5 N.H. 420. The assignment was accordingly acknowledged, within the meaning of § 5696, Rev. Codes, and, under the authority of said section, was entitled to be read in evidence without further proof. No further facts are in dispute. The questions which remain for consideration relate to the alleged invalidity of the foreclosure proceedings, and the legal effect of the foreclosure, if valid, upon the rights of the heirs of Ingeborg Emmons, deceased.
It was urged at the trial in the District Court that the entire foreclosure proceedings were void, and that the sheriff's deed issued to Alexander pursuant thereto, and the deed of the latter to plaintiff, conveyed no title, for the reason that "the publication of the notice of mortgage sale is insufficient to comply with the statutes in this, to-wit that the publications occurred on May 7, 1896, May 14, 1896, May 21, 1896, May 28, 1896, June 4, 1896, and June 11, 1896, and the sale took place on June 13, 1896, being a period of only 37 days." The foregoing quotation from the language of the order of the trial judge correctly states the facts as to the publication of the notice and date of sale, and gives the sole ground relied upon by the trial court in rendering the judgment appealed from. The case was decided before our decision was announced in the case of McDonald v. Nordyke Marmon Co., 9 N.D. 290, 83 N.W. 6, wherein for the first time a construction was placed upon § 5848, Rev. Codes, which governed the publication of the notice of mortgage sale now under consideration. In that case the statute now in force, namely, § 5848, was distinguished from the antecedent provisions found in § 5414, Comp. Laws, under which Finlayson v. Peterson, 5 N.D. 587, 67 N.W. 953, 33 L. R. A. 532, was decided, and was construed to only require a publication of the notice of sale...
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