Groth v. Ness

• Decision Date: 01 May 1935
• Docket Number: No. 6345.,6345.
• Citation: 260 N.W. 700,65 N.D. 580
• Parties: GROTH v. NESS et al.
• Court: North Dakota Supreme Court

65 N.D. 580

260 N.W. 700

GROTH

v.NESS et al.

No. 6345.

Supreme Court of North Dakota.

May 1, 1935.

Syllabus by the Court.

1.A lien of a judgment is purely statutory, and expires ten years from the date of its docketing in the county where it was rendered, unless renewed according to law.

2.In order to effect a renewal of a judgment lien there must be substantial compliance with the requirements of the statute.

3.Where the Legislature has prescribed what facts shall be set forth in the affidavit of renewal of a judgment lien, the court has no power to subtract therefrom, nor may the court declare purposeless and useless that which the Legislature has made a condition of the lien.

4.Where the statute requires the affidavit of a renewal of a judgment lien to set forth the names of the partiesplaintiff and defendant in the original judgment, the number of the judgment book in which the judgment is entered, and the page of the entry of the same, the failure to embody these statements in the affidavit of renewal is fatal.

5.Equity will remove a cloud upon the title to land caused by the record of a lien of judgment which has become forfeited because of failure to renew the judgment in the manner and within the time required by statute.

Appeal from District Court, Steele County; P. G. Swenson, Judge.

Action by Martin B. Groth, also known as M. B. Groth, against G. C. Ness and another.From an adverse judgment, defendant Ness appeals.

Affirmed.G. J. Clauson, of Hatton, and Murphy, Toner & Kilgore, of Grand Forks, for appellant.

O'Keefe & Peterson, of Grand Forks, for respondent.

BURR, Judge.

This action involves the validity of an attempted renewal of a lien of judgment.

November 16, 1923, G. C. Ness docketed a judgment in the district court against M. B. Groth and Mamie Groth.In March, 1928, Martin Groth obtained title to the land involved herein.On October 21, 1933, Ness filed an affidavit of renewal of judgment with the clerk of the district court.On October 27, 1933, execution was issued and levy made upon the land involved, the sale being had on December 18, 1933.Ness bid in the land and received the certificate of sale.The sale was confirmed by the district court, and no redemption made.

March, 1934, the plaintiff commenced this action to determine adverse claims to the land involved.Defendant Ness answered demanding that title be confirmed in him, subject only to plaintiff's right of redemption.The plaintiff replied alleging the invalidity of the renewal of the judgment lien.The trial court found in favor of Groth, and Ness appeals.

The defendant claims that because of the confirmation of sale the attack by the plaintiff is collateral.There is no merit in this contention.The validity of the execution sale depends upon the validity of the affidavit of renewal, and this was not determined by the court in any proceedings wherein plaintiff was a party, or was bound.

[1]Section 7691 of the Compiled Laws provides that a judgment of the district court, docketed in the county where the land is situated, becomes a lien on real property acquired by the judgment debtor “for ten years from the time of docketing the same in the county where it was rendered.”The lien of judgment is purely statutory.Breyer et al. v. Gale et al., 53 N. D. 439, 207 N. W. 46;Isaac v. Swift, 10 Cal. 71, 70 Am. Dec. 698.This lien expires after ten years from the date of its docketing in the county where it was rendered (Lenhart et al. v. Lynn, 50 N. D. 87, 194 N. W. 937;Murphy v. Riecks et al., 40 Cal. App. 1, 180 P. 15;McGinnis v. Seibert, 37 Okl. 272, 134 P. 396;Ruth v. Wells et al., 13 S. D. 482, 83 N. W. 568, 79 Am. St. Rep. 902), unless the lien be renewed according to the provisions of sections 7692 to 7694, Compiled Laws.Liens are created by agreement or by some fixed rule of law, and “it is not one of the functions of courts to create them.”Frost et al. v. Atwood, 73 Mich. 67, 41 N. W. 96, 98, 16 Am. St. Rep. 560;Paton v. Robinson et al., 81 Conn. 547, 71 A. 730.

Section 7692 provides also that this lien may be “continued for a further period of ten years from and after the filing and docketing of the affidavit for renewal. * * *”Section 7693 provides: “Any judgment creditor * * * may at any time within the ninety days next preceding the expiration of the ten-year period * * * make an affidavit, entitled as in the original judgment, setting forth the names of the parties, plaintiff and defendant, * * * the number of the judgment book in which entered and the page of the entry of the same * * * and the filing of such affidavit * * * shall operate to renew and revive said judgment * * * for the period of ten years.”

The judgment obtained was entitled, G. C. Ness, Plaintiff, v. M. G. Groth and Mamie Groth.In the affidavit Ness omitted the name of Mamie Groth, as one of the judgment debtors and defendants, both in the title and the body, the number of the judgment book in which the judgment was recorded, and the page of the entry of the same.

Plaintiff says that because of these omissions the affidavit is ineffective and the lien has not been renewed.

[2] The renewal of a lien by affidavit is purely a statutory matter, and the procedure must be complied with.This is the general rule with reference to renewal matters of similar character.As shown in Hazard et al. v. Board of Education of School Dist.(N. J. Ch.)75 A. 237, 240, where a lien is wholly statutory, the statutory mode must be pursued in order to obtain it and continue it.

[3] There must be a substantial compliance with the statute.Chaffee v. Edinger, 29 N. D. 537, 151 N. W. 223.See, also, Lavin v. Bradley et al., 1 N. D. 291, 296, 47 N. W. 384.The courts are not at liberty to say that any of the statutory requirements to perfect or continue a lien may be omitted.Moher v. Rasmusson, 12 N. D. 71, 73, 95 N. W. 152;Brodina v. Vranek et al., 50 N. D. 420, 423, 196 N. W. 311.Where the Legislature has clearly prescribed what facts shall be set forth in the statement, the courts have no power to add to or subtract therefrom.Brodina v. Vranek, supra.

As said in Interurban Construction Co. et al. v. Central State Bank et al., 76 Okl. 281, 184 P. 905, 910: “The rule of construction of lien statutes which create a right and provide a remedy is: That in all such cases the requirementsof the statutes and conditions prescribed in the statutes are the measure of the right, and the court cannot declare purposeless and useless that which the Legislature has made a condition of the lien.”See, also, Greeley, etc., Railway Co. v. Harris, 12 Colo. 226, 20 P. 764;Tod et al. v. Kentucky Union Railway Co., 52 F. 241, 248, 3 C. C. A. 60, 18 L. R. A. 305;Norman & Co. v. Edington et al., 115 Tenn. 309, 89 S. W. 744.

In Green v. Green, 237 Pa. 71, 85 A. 70, 71, the court says: “It is not to be questioned that, where a plain statutory requirement, upon which rests the right to acquire or continue a lien, has been disregarded, it is in the power of the court to declare void the instrument which has been filed with a view to create the lien, and strike it from the record.”The same case holds that it is immaterial whether the attempt was made to acquire a lien or to continue a lien.

[4] Exhibits introduced in evidence show that on April 27, 1927, an order was entered in the district court entitled G. C. Ness v. Mamie Groth, and recites that a judgment dated November 17, 1923, and entitled, “in an action wherein G. C. Ness was plaintiff and Mamie Groth was defendant,...