Hebden v. Bina
| Decision Date | 03 April 1908 |
| Parties | G. C. HEBDEN v. MATJ. BINA |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh county; Kneeshaw, J.
Action by G. C. Hebden against Matj. Bina. Judgment for defendant and plaintiff appeals.
Affirmed.
Scott Rex, for appellant.
An assignment is sufficient that charges persons with knowledge that the mortgage is assigned. Viele v. Judson, 82 N.Y. 32.
Government receiver's receipt vests beneficial interest. Bowne v. Walcott, 1 N.D. 415, 48 N.W. 336.
Law presumes legal title from possession. 28 Am. & Eng. Enc. Law 233; Herrick v. Churchill, 29 N.W. 129; Dever v Cornwell, 10 N.D. 123, 86 N.W. 227; Stuart v. Lowry, 51 N.W. 662; Hannah v. Chase. 4 N.D. 351, 61 N.W. 18.
Principal's interest in contract of agent may be shown by parol testimony. Jones Ev., section 457; Northern Bank v. Lewis, 47 N.W. 834; Gilmore v. Roberts, 48 N.W. 522; 21 Am. & Eng. Enc. Law, 1087; 1 Am. & Eng. Enc. Law, 1054; 4 Am. & Eng. Enc. Law, 197; Dickinson v. Burke, 8 N.D. 118, 77 N.W. 279.
Tenant cannot deny landlord's title. Rev. Codes 1905, section 7316, subdivision 4.
In statutory action to determine adverse claims a general denial raises no issue. Shattuck v. Smith, 6 N.D. 56, 69 N.W. 5; Donohue v. Ladd, 17 N.W. 381; Wall v. Magnes, 30 P. 56; Weston v. Estey, 45 P. 367.
Frich & Kelly, and Bangs, Cooley & Hamilton, for respondent.
A person to foreclose by advertisement must be owner and holder of the record title, and the notice must be signed by him. Morris v. McKnight, 1 N.D. 266, 47 N.W. 375; Backus v. Burke, 51 N.W. 284; Lowry v. Mayo, 43 N.W. 78; Burke v. Backus, 53 N.W. 458; Dunning v. McDonald, 55 N.W. 864; Clarke v. Mitchell, 84 N.W. 327; Thorpe v. Merrill, 21 Minn. 336; Ross v. Worthington, 11 Minn. 323; Johnson v. Sandhoff, 14 N.W. 889; Martin v. Bovey, 16 N.W. 449; Van Meter v. Knight, 20 N.W. 142; Benson v. Markoe, 42 N.W. 787; Hickey v. Richards, 20 N.W. 428; Langmaack v. Keith, 103 N.W. 210.
Addition of "agent" after signature is description personae. Bingham v. Stewart, 13 Minn. 96; Pratt v. Beoupre, 13 Minn. 177; Deering v. Thom, 12 N.W. 350.
In actions to determine adverse claims, general denial puts in issue a fact necessary to plaintiff's recovery. Pennie v. Hildreth, 22 P. 398; Adams v. Crawford, 48 P. 488; United Land Ass'n. v. Pacific Imp. Co., 69 P. 1064; Donohue v. Stearns, 17 N.W. 381; Wheeler v. Winnebago Paper Mills, 64 N.W. 920; Perkins v. Morse, 30 Minn. 11; Herick v. Churchill, 29 N.W. 129; Jellison v. Halloran, 42 N.W. 392.
Plaintiff must recover upon title pleaded. McClory v. Ricks, 11 N.D. 38, 88 N.W. 1043; Dever v. Conwell, 10 N.D. 123, 86 N.W. 227; Deering v. Merrill, 49 N.W. 693; Stuart v. Lowry, 51 N.W. 662; McArthur v. Clark, 90 N.W. 369.
Entryman on government land before issuance of patent has an equitable title only. Bowne v. Wolcott, 1 N.D. 415, 48 N.W. 336; Von Toneren v. Hefferman, 5 Dak. 180, 38 N.W. 52; Gould v. Tucker, 100 N.W. 427; Gould v. Tucker, 105 N.W. 624; Tegarden v. LaMarchel, 129 F. 487; Peyton v. Desmond, 129 F. 1; Healy v. Forman, 105 N.W. 233.
This is the statutory action to determine adverse claims to real property. The complaint is in the usual form, alleging plaintiff's ownership in fee of the property in question, and that defendant claims a certain estate or interest therein adversely to plaintiff, and containing the usual prayer for relief. The defendant, Bina, answered, denying plaintiff's title, but admitting that he claims an estate or interest in the property as alleged, without setting out the nature or source of such adverse interest, and he prayed merely for a dismissal of the action with costs. For the purpose of proving title plaintiff introduced in evidence the record of a receiver's receipt, issued for the property by the United States to defendant, dated August 27, 1890; also the record of a mortgage from defendant, Bina, to the Bank of Minot, dated September 4, 1890; also the record of a mortgage from defendant, Bina, to the Bank of Minot, dated September 4, 1890, as recorded in Book 15 of Mortgagees, at page 556, together with the record of an assignment by the Bank of Minot to one Nelson of a mortgage claimed to be the mortgage aforesaid, but which describes the same as "the mortgage executed by Matj Bina and his wife to the said Bank of Minot, and recorded in Book F of Mortgages on pages 556-558 in the office of the register of deeds of the county of Walsh, state of North Dakota." Then followed record proof of foreclosure proceedings by advertisement of the mortgage aforesaid, culminating in the issuance to said Nelson of a sheriff's deed; also the record proof of a warranty deed of the premises from Nelson to plaintiff. No question is raised as to the regularity of such foreclosure proceedings, provided the assignment of the mortgage to Nelson was sufficient to authorize him to foreclose such mortgage by advertisement; it being respondent's contention that such assignment was insufficient for this purpose, and hence that the foreclosure proceedings are void. It is appellant's contention that such proof was sufficient to show title in him as alleged, but, even if this is not true, that he sufficiently proved title by showing possession of the premises from which possession his title is presumed, and also that defendant is estopped to assert title as against him on account of the contract relations between them of landlord and tenant arising through certain written leases offered in evidence. Appellant also contends that defendant's answer is insufficient to raise any issue, because it fails to set forth defendant's adverse claim to the property, and contains merely a denial of plaintiff's title. The trial court held plaintiff's proof insufficient to show title as alleged, and entered judgment dismissing the action without prejudice, from which judgment this appeal is prosecuted.
These questions will be disposed of in the order presented in appellant's brief. Was plaintiff's proof of title, based upon the foreclosure proceedings, sufficient? In answering this question we shall assume (without deciding) that if the plaintiff, through the warranty deed from Nelson to him and the foreclosure proceedings under the mortgage, acquired all of defendant's interest in the property under the receiver's receipt, he is entitled to maintain this action. We are therefore required to determine, first, whether the assignment of the mortgage to Nelson conferred upon him the legal title to the mortgage, so as to authorize him to foreclose the same by advertisement; second, if this is answered in the negative, then whether there is any other sufficient proof of plaintiff's title; third, whether defendant is estopped by reason of the leases which were introduced in evidence from questioning plaintiff's title; and, lastly, whether the defendant's answer, which embraces merely a denial, is sufficient to raise an issue as to plaintiff's title. We are agreed that each of these questions must be answered in respondent's favor, and we will briefly give our reasons for so holding.
1. The assignment of the mortgage was insufficient to authorize Nelson, the assignee, to foreclose by advertisement, for the reason that such assignment did not operate to vest in such assignee the legal title to the mortgage. The assignment did not describe the mortgage with sufficient definiteness. It described it as a mortgage executed and delivered by Matj Bina and wife, and recorded in Book F of Mortgages, while the mortgage foreclosed was executed and delivered by Matj Bina, and was recorded in Book 15 of Mortgages. The proof shows that there were two mortgages executed and delivered by Bina to the Bank of Minot and recorded in Book 15. If we assume, as contended by appellant that the intention was to assign the mortgage which was foreclosed, and which was a mortgage executed by Matj Bina alone, and which was recorded in Book 15, instead of Book F, we are confronted with the fact that the record of such assignment fails to impart such information to the public. From an inspection of the record of such assignment it is impossible to say with any degree of certainty that the mortgage assigned was intended to be the same mortgage which was foreclosed. Our statute (section 7457, Rev. Codes 1905) provides: A similar statutory provision is in force in our sister states of Minnesota and South Dakota, and these statutes have been repeatedly construed, both in this state and in the state aforesaid, to mean that before a person can foreclose a mortgage by advertisement he must be the owner and holder of the record title of the mortgage. Morris v. McKnight, 1 N.D. 266, 47 N.W. 375; Brown v. Comonow (N.D.) 114 N.W. 728; Backus v. Burke, 48 Minn. 260, 51 N.W. 284; Lowry v. Mayo, 41 Minn. 388, 43 N.W. 78; Burke v. Backus, 51 Minn. 174, 53 N.W. 458; Dunning v. McDonald, 54 Minn. 1, 55 N.W. 864; Clark v. Mitchell, 81 Minn. 438, 84 N.W. 327; Thorp v. Merrill, 21 Minn. 336; Ross v. Worthington, 11 Minn. 438 (Gil. 323), 88 Am. Dec. 95; Johnson v. Sandhoff, 30 Minn. 197, 14 N.W. 889; Martin v. Baldwin, 30 Minn. 537, 16 N.W. 449; Van Meter v. Knight, 32 Minn. 205, 20 N.W. 142; Benson v. Markoe, 41 Minn. 112, 42 N.W. 787; Hickey v. Richards, 3 Dak. 345, 20 N.W. 428; Langmaack v. Keith, 19 S.D. 351, 103 N.W. 210. In Morris v. McKnight, supra, it was said: ...
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