Hannah v. Chase

• Decision Date: 13 November 1894
• Citation: 61 N.W. 18,4 N.D. 351
• Court: North Dakota Supreme Court

61 N.W. 18

4 N.D. 351

ROBERT HANNAH v. E. C. CHASE

Supreme Court of North Dakota

November 13, 1894

Appeal from District Court, Sargent County; Lauder, J.

Action by Robert Hannah against E. C. Chase to determine adverse claims to certain land. Judgment for defendant, and plaintiff appeals.

Affirmed.

Fred B Morrill, for appellant.

The object of this action is to try the legal title and right of possession to the land in question. Wood v. Conrad, 2 S.D. 405, 50 N.W. 903. The presumption is that the officer in making the deed, did his duty. Faley v. Kane, 4 N.W. 355; Herrick v. Ammerman, 21 N.W. 836; Love v. Cherry, 24 Ia. 204. It is the duty of the sheriff to complete the sale by executing a deed of the premises sold to the original purchaser or any person who may have acquired the title or interest of such purchaser. Sections 5423, 5160 Comp. Laws.

W. E Purcell and Chas. E. Wolfe, for respondent.

Plaintiff must recover, if at all, on the strength of his own title. Kircher v. Murray, 54 F. 620; Foley v. Kane, 4 N.W. 355. The sheriff's deed is void upon its face, because issued to the wrong party. A naked power conferred by law on an officer or private person, must be strictly followed and one claiming a right under the exercise of such a power must show that it was strictly pursued in accordance with the directions of the law. Throop on Public Officers, 556; Thacher v. Powell, 6 Wheat. 119; Jackson v. Esty, 7 Wend. 148; Williams v. Peyton, 4 Wheat. 77. The presumption that an officer does his duty will not be allowed to sustain a vital jurisdictional fact. Throop Public Officers, 559; Albany v. McNamara, 117 N.Y. 168. To found the power to act against a private right of property there must be affirmative proof of compliance with prerequisites. Throop Public Officers, 559; In re Buffalo, 78 N.Y. 366; In re Carlton Street, 16 Hun. 497. The sheriff in making sales acts as the agent of the mortgagee, and is appointed by the legislature by the name of his office and not virtute officie. Berthold v. Herman, 12 Minn. 221; Throop Public Officers, 560. The rule that officers will be presumed to have done their duty does not extend to agents appointed by the legislature pro hac vice to sell lands for the payment of the owners debts; the correctness of their proceedings must be affirmatively proved. Throop Public Officers, 560; O'Brien v. McCann, 58 N.Y. 373; Hilton v. Bender, 69 N.Y. 75. The recitals in the sheriff's deed are not evidence against the owner. McMurtry v. Keifner, 54 N.W. 844; Costello v. Burke, 19 N.W. 247; Hilton v. Bender, 69 N.Y. 75.

OPINION

BARTHOLOMEW, C. J.

This action was brought under § 5449, Comp. Laws, to determine adverse claims to the S. E. 1/4 of section 23 in township 131 N., range 53 W., in Sargent County. Both parties claims title from one Winfield S. Wolfe. The trial below was to the court, and defendant prevailed. Plaintiff prosecutes this appeal. Defendant is in possession. It is only after plaintiff has shown a right in himself, superior to the right of possession, that defendant's title becomes material. We may therefore enter at once upon a consideration of plaintiff's title. The facts upon which he relies are undisputed. It is simply the right that the law gives him from such facts that is questioned. In February, 1885, Winfield S. Wolfe, the fee owner of said land, executed a mortgage thereon in favor of the Dakota Mortgage Loan Corporation, which was duly recorded. Upon a subsequent default, this mortgage was foreclosed by advertisement, and a sheriff's certificate of sale issued to the mortgagee on June 2, 1888. This certificate was properly recorded, as was also the usual affidavit of publication and what purported to be a sheriff's affidavit of sale; but this last instrument was sworn to before the register of deeds of Sargent County, an officer who at that time was without authority to administer an oath. No redemption was made or attempted, and on January 3, 1890, a sheriff's deed was executed upon such certificate, and in the deed the grantee is named and described as "the Globe Investment Company formerly Dakota Mortgage Loan Corporation, of the County of Suffolk and commonwealth of Massachusetts." This grantee subsequently conveyed the land to the plaintiff herein by warranty deed. Upon the foregoing instruments, or duly authenticated copies thereof, plaintiff rested his right to recover. Plaintiff also sought to introduce a copy of a statute purporting to have passed by the legislature of Massachusetts in 1888, by which the name of "Dakota Mortgage Loan Corporation" was changed to "Globe Investment Company." This copy was authenticated only by the certificate of a notary public to the effect that he had compared it with the engrossed act in the office of the secretary of state, and that it was a true copy thereof. On defendant's objection to its incompetency, the copy was excluded and exception saved. But the proof or authentication of the copy was so clearly insufficient that we may dismiss it with its statement. Comp. Laws, § 5302; Whart. Ev. § 305.

The court found that the sheriff's affidavit of sale was entirely void, because the jurat was made by a party not authorized to administer oaths. But whether or not the court considered the record of such an instrument necessary to establish a record title under the foreclosure is not apparent. Nor is it necessary for us to pass upon the point. The court held that the sheriff's deed made pursuant to the certificate of sale, and made to the Globe Investment Company, was ineffective to convey any title whatever, because the certificate was made to the Dakota Mortgage Loan Corporation as purchaser, and the Globe Investment Company in no manner connected itself with the rights or interests of the Dakota Mortgage Loan Corporation under the certificate. If plaintiff's grantor had no title, it, of course, conveyed none to plaintiff; and that point alone, if well taken, would decide the case. Against this position, it is urged that the recitals in the deed are sufficient prima facie to establish the right of the Globe Investment Company to succeed to the interests of the Dakota Mortgage Loan Corporation. We think otherwise. The statute does not make the sheriff's deed evidence of any such recitals. See Comp. Laws, § § 5160, 5428 5437. Nor would such recitals be evidence of the matters stated in the absence of statutes. In Costello v. Burke, 63 Iowa 361, 19 N.W. 247, the court said: "The conveyances introduced show that John Bannington was vested with the title, and there is no competent evidence that it has ever passed from him. The recitals in the deed to Costello that the grantors therein are the heirs at law of John Bannington, deceased, are not competent evidence either of his death or their heirship. These recitals are no part of the conveyance, and they are no more competent as evidence of the facts stated than they would be if embodied in any other writing signed by the parties." See, also, Hill v. Draper, 10 Barb. 454; Smith v. Penny, 44 Cal. 161; Hardenburgh v. Lakin, 47 N.Y. 109; McMurtry v. Keifner, 36 Neb. 522, 54 N.W. 844. This is not a case where the truth of the matter contained in the recitals comes in question between the parties to the deed. Here it...