Harney v. Wirtz
| Decision Date | 31 March 1915 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Benson County, K. E Leighton, Special Judge, defendants appeal.
Reversed.
Judgment reversed, and judgment entered in favor of the appellants.
Middaugh Cuthbert, Smythe, & Hunt, for appellants.
The habendum clause in the mortgage relates entirely to the chattel mortgage feature of the instrument. The entire instrument is merely a chattel, and not a real estate mortgage. Mortgage Bank & Invest. Co. v. Hanson, 3 N.D. 465, 57 N.W. 345.
A written contract supersedes all prior or accompanying oral negotitations touching its subject-matter. Rev. Codes 1905 §§ 5333, 6153, Comp. Laws 1913, §§ 5889, 6729; National German American Bank v. Lang, 2 N.D. 66, 49 N.W. 414; N.D. Comp. Laws, 1913, § 3545; Thompson v. McKee, 5 Dakota 176, 37 N.W. 367; Northwestern Fuel Co. v. Burns, 1 N.D. 137, 45 N.W. 699; Jasper v. Hazen, 4 N.D. 2, 23 L.R.A. 58, 58 N.W. 454; Northwestern F. & M. Ins. Co. v. Lough, 13 N.D. 601, 102 N.W. 160; Wells v. Geyer, 12 N.D. 316, 96 N.W. 289.
Defendant's motion to dismiss, made at conclusion of plaintiff's case, should have been granted. Plaintiff had failed to make a prima facie case or to prove the material allegations of the complaint. A certified copy of the record of a mortgage is not the best evidence. It is no evidence when it appears that the original instrument is in the possession of the witness testifying. Rev. Codes 1905, § 7297, Comp. Laws 1913, § 7916; American Mortg. Co. v. Mouse River Live Stock Co., 10 N.D. 290, 86 N.W. 965.
There is also a failure to allege or prove facts to negative other proceedings. Rev. Codes 1905, Subdiv. 1, §§ 6859, 7480, Comp. Laws 1913, §§ 7448, 8103.
A man having a first lien on chattels and real property, knowing of a second lien upon the real property, must proceed with the chattel security in such manner as to make as much as possible out of it, to the end that the burden of his prior mortgage on the land may be thereby lessened. This is what common honesty demands. Union Nat. Bank v. Moline, M. & S. Co., 7 N.D. 201, 73 N.W. 527.
In a suit in equity, the rights of the parties are fixed as of the date of the judgment. In an action at law, such rights are determined as of the date of the trial or verdict. Brown v. Newman, 15 N.D. 1, 105 N.W. 941.
In this case no compound interest should have been computed or allowed. In any event, interest cannot be compounded where to do so will make a greater annual rate than 12 per cent. Rev. Codes 1905, §§ 5511, 6722, Comp. Laws 1913, §§ 6073, 7310.
T. H. Burke, for respondent.
The habendum clause may limit, restrain, lessen, enlarge, explain, vary, or qualify, but not totally destroy or contradict or be repugnant to, the estate granted in the premises, but if the habendum be repugnant to the grant, the former will be controlled by the manifest intent and terms of the latter. 13 Cyc. 619; 2 Devlin, Deeds, 3d ed. 1, 1531; 1 Devlin, Real Estate & Deeds, § 213, p. 309.
The granting clause in a deed must prevail over the habendum unless the contrary intention is shown by the deed. 1 Devlin, Real Estate & Deeds, § 214, p. 309; French v. Carhart, 1 N.Y. 102; McConnell v. Rathbun, 46 Mich. 305, 9 N.W. 526; Wilson v. Terry, 130 Mich. 73, 89 N.W. 567; Farquharson v. Eichelberger, 15 Md. 63.
The validity of a mortgage on real estate is not affected by the fact that it also pledges personal property. Harriman v. Woburn Electric Light Co., 163 Mass. 85, 39 N.E. 1004.
An instrument is a mortgage where the intention is clear to charge certain property as security for the payment of a debt, and contains nothing impossible or contrary to law. 27 Cyc. 985; Jasper v. Hazen, 4 N.D. 2, 23 L.R.A. 58, 58 N.W. 454; Standorf v. Shockley, 16 N.D. 73, 11 L.R.A. (N.S.) 869, 111 N.W. 622, 14 Ann. Cas. 1099; Rev. Codes 1905, § 6153, N.D. Comp. Laws 1913, § 6729; Northwestern F. & M. Ins. Co. v. Lough, 13 N.D. 601, 102 N.W. 160; Wells v. Geyer, 12 N.D. 316, 96 N.W. 289.
Parol evidence is always admissible, either between the original or third parties, to explain an ambiguity in the written instrument. 17 Cyc. 640, 662, 9 Cyc. 470, Columbus Sewer Pipe Co. v. Ganser, 58 Mich. 385, 55 Am. Rep. 697, 25 N.W. 378; Mayo v. Murchie, 3 Munf. 358; Sturges v. Detroit, G. H. & M. R. Co., 166 Mich. 231, 131 N.W. 709; Ferris v. Wilcox, 51 Mich. 105, 47 Am. Rep. 551, 16 N.W. 252; Rundle v. Scully, 144 Mich. 62, 107 N.W. 694; Bedford v. Kelley, 173 Mich. 492, 139 N.W. 252, Ann. Cas. 1914D, 848; 32 Cyc. 40; Big Rapids Nat. Bank v. Peters, 120 Mich. 518, 79 N.W. 891; R. L. Polk Printing Co. v. Smedley, 155 Mich. 249, 118 N.W. 984; Colean Implement Co. v. Strong, 126 Iowa 598, 102 N.W. 506; Smith v. McLean, 24 Iowa 322; Weber v. Illing, 66 Wis. 79, 27 N.W. 834; Sheehey v. Fulton, 38 Neb. 691, 41 Am. St. Rep. 767, 57 N.W. 395; Ripon College v. Brown, 66 Minn. 179, 68 N.W. 837.
If the language used presents a patent ambiguity as to its meaning, such evidence is always admissible. Baldwin v. Winslow, 2 Minn. 213, Gil. 174; Case v. Young, 3 Minn. 209, Gil. 140; Kelly v. Bronson, 26 Minn. 359, 4 N.W. 607.
Resort is frequently made to such evidence, or to such method of proof, not to vary the terms of the written contract, but to throw light upon the meaning of the terms used, as intended by the parties. Hazelton Boiler Co. v. Fargo Gas & Electric Co., 4 N.D. 365, 61 N.W. 151.
Wirtz brothers took the mortgage and their interest in the premises, with full knowledge of the plaintiff's mortgage. They cannot rely upon a mistake in law, as to the legal effect of an instrument. Knowledge of the facts is sufficient to charge them. 27 Cyc. 1186; Fullerton Lumber Co. v. Tinker, 22 S.D. 427, 118 N.W. 700, 18 Ann. Cas. 11.
It is only necessary for a person holding the prior mortgage to resort first to property upon which his lien is exclusive, when he can do so without risk of loss to himself, or of injustice to others, and then only upon the demand of a party interested. Rev. Codes 1905, § 2033, Comp. Laws 1913, § 2743; McIlvain v. Mutual Assur. Co., 93 Pa. 30; Groesbeck v. Mattison, 43 Minn. 547, 46 N.W. 135.
CHRISTIANSON, J. Mr. Justice BURKE did not participate, Honorable CHAS. A. POLLOCK, Judge of the District Court of the Third Judicial District, sitting in his stead.
This is an action for the foreclosure of a mortgage. The plaintiff obtained judgment in the court below for a foreclosure of the mortgage, and the defendant appeals from the judgment and asks for a trial de novo in this court. The only question presented in this case arises upon the construction of the mortgage sought to be foreclosed, which is in words and figures as follows:
[SEE MORTGAGE IN ORIGINAL] This instrument was duly signed, witnessed, and acknowledged, and on the 14th day of June, 1904, was recorded as a real estate mortgage in the office of the register of deeds of Benson county, and also filed in that office as a chattel mortgage.
On September 8, 1904, Lindeman gave a mortgage upon the land described in the mortgage above set forth, to the Minneapolis Threshing Machine Company to secure the payment of $ 3,085. This mortgage, it is conceded, was a regular real estate mortgage in usual form, containing the stipulations, covenants, and conditions usually contained in such mortgages in this state, including a good and sufficient power of sale. This mortgage was recorded in the office of the register of deeds of Benson county on September 12, 1904, and was duly assigned by the mortgagee named herein, to the defendants, Wirtz Brothers, by a written assignment in regular form, dated June 14, 1907, and recorded in the office of the register of deeds of Benson county on August 14, 1907. It is conceded that this last mortgage was duly foreclosed in the manner provided by law, and a sheriff's deed duly issued thereon to the defendants, Wirtz Brothers, on the 6th day of October, 1908, and recorded in the office of the register of deeds of Benson county on October 13, 1908.
The plaintiff brought this action in equity to foreclose the mortgage given to him by Lindeman upon the realty alone,--no foreclosure of the mortgage upon the chattels being asked for. The defendants, Wirtz Brothers, first demurred to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and these defendants, thereupon answered, stating, in substance, that they were the owners of the premises, and that the mortgage set forth in plaintiff's complaint was only a chattel mortgage upon the personal property therein described, and did not constitute a lien on the realty, and also that the plaintiff had permitted the personal property to be dissipated and disposed of by Lindeman after the defendants, Wirtz Brothers, had notified the plaintiff to satisfy his mortgage out of the personal property. It will be unnecessary for us, however, to consider the latter defense, because in our judgment the controlling question--and really the only question presented for our consideration--arises upon the construction of the mortgage held by the plaintiff and sought to be foreclosed by this action. Does the instrument in question constitute a mortgage upon the land therein described; or does it only constitute a chattel mortgage? This is the prime question submitted to this court for determination.
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