Henniges v. Johnson

Citation84 N.W. 350,9 N.D. 489
PartiesHENNIGES et al. v. JOHNSON et al.
Decision Date20 November 1900
CourtUnited States State Supreme Court of North Dakota
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. A deed of real estate, to be effective as a conveyance of title, must designate a grantee, otherwise no title passes; but it is sufficient if the deed, when construed as a whole, distinguishes the grantee from the rest of the world.

2. A certain deed of real estate examined, and held that it sufficiently describes the grantee, and is valid as a conveyance.

3. Upon the equitable principle that, where one of two or more innocent persons must suffer for the wrongful act of a third, he must suffer who left it in the power of such third person to do the wrong, it is held that plaintiffs, who are purchasers of certain promissory notes secured by a real-estate mortgage, by neglecting to take and place of record an assignment of the same, forfeited their rights under said mortgage as against the defendant, who purchased the mortgaged premises in good faith, and in reliance upon the record title.

4. Assignments of real-estate mortgages are conveyances within the meaning of section 3594, Rev. Codes, and under said section, for the purpose of notice, must be recorded, and, if not so recorded, are void as to subsequent purchasers of the mortgaged premises who purchase in good faith and for a valuable consideration, and first record the conveyances.

Appeal from district court, Walsh county; O. E. Sauter, Judge.

Action by Fred Henniges and others against John Johnson and others. Judgment for defendant John Paschke, and plaintiffs appeal. Affirmed.

J. E. Gray, for appellants. Cochrane & Corliss, for respondents.

YOUNG, J.

This is an action to foreclose a real-estate mortgage. The mortgage in question was given by John Johnson, one of the defendants herein, to one John P. Walker, to secure his eight promissory notes of even date therewith. It was placed on record on June 28, 1895, the day it was executed. Four of the notes were for $500 each, and matured, respectively, on November 1, 1895, 1896, 1897, and 1898. The remaining four notes were for $1,000 each, and matured, respectively, on November 1, 1899, 1900, 1901, and 1902. All of the notes were transferred to plaintiffs before maturity, and are unpaid. No written assignment of the mortgage was executed by the mortgagee to plaintiffs. Their rights in the mortgage arise from their ownership of the debt secured thereby. They seek also to have the title of the defendant Paschke, who claims to be a good-faith purchaser of the mortgaged premises, declared subject to the lien of the mortgage. The defendants Johnson and Walker did not answer. The answer of Paschke presents the only issues in the case. His answer, in effect, is that he is a good-faith purchaser of the mortgaged premises under the recording laws of this state, and that his title is, therefore, freed from the lien of the mortgage in suit. His claim is that when he purchased the land there was nothing of record to apprise him of the fact that plaintiffs had any interest in the mortgage, and that he purchased and paid for the mortgaged premises in reliance upon the record title, and received from his vendor a proper satisfaction of the mortgage in suit, executed by the record owner thereof. The trial court sustained his defense, and entered judgment declaring the mortgage void as to him, and confirming his title to the premises. Plaintiffs appeal from this judgment, and request a retrial of certain specified facts.

The facts upon which the case turns are, in the main, undisputed. Appellants urge two grounds in support of their contention that the lien of the mortgage is a paramount and first lien, and is not invalid as to Paschke, as found by the trial court. First it is claimed that by reason of a defective deed in Paschke's chain of title he is without any title or interest in the premises whatever. Second it is contended that, even if this deed is good, and he obtained title, nevertheless he is not a good-faith purchaser, and therefore took subject to plaintiffs' mortgage. Before considering these questions,-and they present the only questions in the case,-it will be necessary to state certain preliminary facts. It is agreed that Johnson was the fee-simple owner of the real estate in controversy when he executed the mortgage; also that the mortgage remained of record, and was unsatisfied, on December 24, 1898, when Paschke purchased the premises. The series of conveyances in his chain of title were all of record, and are as follows: A deed from Johnson to John P. Walker, dated October 30, 1895; a deed from John P. Walker to F. T. Walker, dated September 10, 1898; a deed from F. T. Walker and wife back to John P. Walker, dated November 17, 1898. Defendant Paschke purchased from John P. Walker, and his deed bears date December 21, 1898, but was not delivered until three days later. The record also showed the following transfers of the Johnson mortgage: An assignment from John P. Walker to John L. Cashel, trustee, dated November 27, 1897, and an assignment from John L. Cashel, trustee, to F. T. Walker, dated September 21, 1898. Under date of November 17, 1898, F. T. Walker, the record owner of the mortgage, executed a satisfaction thereof, which was delivered to the defendant Paschke when he purchased the premises on December 24th thereafter. Paschke relied entirely upon the record title, and had no actual notice that plaintiffs either had or claimed any right or interest in the mortgage in suit. The record showed that John P. Walker owned the land, and that F. T. Walker owned the mortgage. We now turn to the contention that Paschke has no title by virtue of his purchase. Appellants contend that the deed from F. T. Walker and wife to John P. Walker, defendants' grantor, is entirely void, and conveyed no title. So much of it as is important for the purposes of construction is as follows: “Know all men by these presents, that I, F. T. Walker, and Maggie J. Walker, his wife, of Sioux county, and state of Iowa, in consideration of the sum of one thousand ($1,000) dollars in hand paid by John P. Walker, of Walsh county, North Dakota, do hereby quitclaim unto the said ------, all right, title, and interest in and to the following described premises,” etc. The objection to this instrument is that it does not designate a grantee. If this is true, it is without validity and effect, for it is an undoubted rule of law that a deed of real estate, to be effective as a conveyance, must designate a grantee; otherwise no title passes. The designation of a grantee is just as necessary to the validity of the grant as the designation of the grantor and the description of the property. 9 Am. & Eng. Enc. Law, 132, states the rule as follows: “The deed must designate the grantee; otherwise it is a nullity, and passes no title. If not named. the grantee should be so described as to be capable of being ascertained with reasonable certainty; and, if named, the name should be sufficient to identify the person intended, though it need not, as matter of law, be accurate in every respect.” Numerous authorities have been cited by counsel in support of their construction of the deed under consideration, among which are Vineyard v. O'Connor (Tex. Sup.) 36 S. W. 424;Bay v. Posner (Md.) 26 Atl. 1084;Mardes v. Meyers (Tex. Civ. App.) 28 S. W. 693;Newton v. McKay, 29 Mich. 1;Hardin v. Hardin (S. C.) 11 S. E. 102;Allen v. Allen (Minn.) 51 N. W. 473;Allen v. Withrow, 110 U. S. 119, 3 Sup. Ct. 517, 28 L. Ed. 90. These cases are in point only so far as they declare general rules of interpretation. In none of them was the deed being considered identical in language with that before us. It is a general rule, applicable to all written instruments, that courts, in construing them, will, when possible, adopt a construction which will give effect, rather than one which defeats them. This maxim of interpretation is embodied in section 5103, Rev. Codes. The Michigan court, in Newton v. McKay, supra,-a case quite similar to the case at bar,-uses this language: “It is undoubtedly true that, to constitute a valid conveyance, the grant must in some way distinguish the grantee from the rest of the world. But it is equally true that if, upon a view of the whole instrument, he is pointed out, even though the name of baptism is not given at all, the grant will not fail. The whole writing is always to be considered, and the intent will not be defeated by false English, or irregular arrangement, unless the defect is so serious as absolutely to preclude the ascertainment of the meaning of ...

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18 cases
  • Brugman v. Jacobson
    • United States
    • North Dakota Supreme Court
    • March 18, 1919
    ... ... to fill in the name of the grantee, was void and conveyed no ... title. Henniges v. Paschke, 9 N.D. 489, 81 Am. St ... Rep. 588, 84 N.W. 350; Ballou v. Carter, 30 S.D. 11, ... 137 N.W. 603; Lund v. Thackery, 18 S.D. 113, ... ...
  • Citizens' Nat. Bank Of Connells-ville v. Harrison-doddridge Coal &. Coke Co
    • United States
    • West Virginia Supreme Court
    • November 29, 1921
    ... ... 392, 104 N. W. 237, 111 Am. St. Rep. 476, 5 Ann. Cas. 338; Bacon v. Van Schoonhoven, 87 N. Y. 446; Decker v. Boice, S3 N. Y. 215; Henniges v. Paschke, 9 N. D. 489, 84 N. W. 350, 81 Ann. St. Rep. 588; Donaldson v. Grant, 15 Utah, 231, 49 Pac. 779. In my opinion some of the decisions ... ...
  • Millick v. O'Malley
    • United States
    • Idaho Supreme Court
    • December 15, 1928
    ...must suffer from the wrongful act of a third, he must suffer who left it in the power of such third person to do the wrong. ( Henniges v. Johnson, supra; Newman Fidelity Savings & Loan Assn., supra; Williams v. Jackson, 107 U.S. 478, 2 S.Ct. 814, 27 L.Ed. 529; Livermore v. Maxwell, 87 Iowa ......
  • Citizens' Nat. Bank of Connellsville v. Harrison-Doddridge Coal & Coke Co.
    • United States
    • West Virginia Supreme Court
    • November 29, 1921
    ... ... 392, ... 104 N.W. 237, 111 Am.St.Rep. 476, 5 Ann.Cas. 338; Bacon ... v. Van Schoonhoven, 87 N.Y. 446; Decker v ... Boice, 83 N.Y. 215; Henniges v. Paschke, 9 N ... D. 489, 84 N.W. 350, 81 Ann. St. Rep. 588; Donaldson ... v. Grant, 15 Utah 231, 49 P. 779. In my opinion some of ... the ... ...
  • Request a trial to view additional results
1 books & journal articles
  • PROPERTY LAW'S SEARCH FOR A PUBLIC.
    • United States
    • Washington University Law Review Vol. 97 No. 5, June 2020
    • June 1, 2020
    ...v. Bennett, 31 F. Supp. 24, 26 (E.D. Ill. 1939) (omission of grantee invalidates transaction under Illinois law); Henniges v. Paschke, 84 N.W. 350, 351 (N.D. 1900); Brugman v. Charlson, 171 N.W. 882 (N.D. 1919); State v. McGee, 204 N.W. 408, 409 (Iowa 1925). Since, by definition, the public......

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