Henniges v. Paschke
| Decision Date | 20 November 1900 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh County; Sauter, J.
Action by Fred Henniges and others against John Johnson and others. Judgment for defendant John Paschke, and plaintiffs appeal.
Affirmed.
J. E Gray, for appellant.
The general rule of law is that a deed must designate the grantee, otherwise it is a nullity and passes no title. Allen v. Allen, 51 N.W. 473; Allen v Withrow, 110 U.S. 119, 28 L.Ed. 90; Paul v Moody, 7 Greenl. 455; Whitaker v. Miller, 83 Ill. 311; Chase v. Palmer, 29 Ill. 306, 9 Am. & Eng. Enc. L. (2d Ed.) 132, and note; Hardin v. Hardin, 11 S.E. 102. The grantee under a quitclaim deed is not a bona fide purchaser. Finch v. Trent, 24 S.W. 679; American Mortgage Co. v. Hutchinson, 24 P. 515. The plaintiff, Henniges, and Bradley are each bona fide holders for value, before maturity, of the promissory notes, and are entitled to a decree of foreclosure for the amount represented by their notes as against the defendants. Hollinshead v. Stuart & Co., 77 N.W. 89; Stolzman v. Wyman, 77 N.W. 285; Purdy v. Huntington, 42 N.Y. 344. Paschke is not such a bona fide purchaser as will be protected against the lien of plaintiff's mortgage. Mathew v. Jones, 66 N.W. 622; Peterborough Savings Bank v. Pierce, 75 N.W. 20; Babcock v. Young, 75 N.W. 302; Wilson v. Campbell, 68 N.W. 278; Williams v. Keyes, 51 N.W. 520; Dutton v. Ives, 5 Mich. 515; Joy v. Vance, 62 N.W. 140; Bromley v. Lathrop, 63 N.W. 510; Trowbridge v. Ross, 63 N.W. 534; Windle v. Bonebrake, 23 F. 165. The assignments of mortgage by Walker to Cashel, and by Cashel to Walker, and the satisfaction by F. T. Walker are nullities. Rev. Codes, § § 4694 and 3529; Polhemus v. Trainer, 30 Cal. 685; Loan Ass'n. v. Dowling, 74 N.W. 438; Peter v. Jamestown, 5 Cal. 335. Paschke was not a good faith purchaser because he had notice of facts which would put a prudent man upon inquiry. Gress v. Evans, 1 Dak. 371.
Cochrane & Corliss, for respondent.
The fact that John Paschke paid for the land after the notice of lis pendens had been filed does not render him chargeable with constructive notice of the pendency of the action because the statute declares that every person whose conveyance or incumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by proceedings taken after the filing of the notice. § 5251, Rev. Codes. The filing of lis pendens did not give Paschke notice that there was an action pending or that the plaintiffs were the owners of the mortgage in question. The records where the ownership should have been disclosed did not disclose the mortgage. 2 Jones, Real Property, § 1559. The doctrine of lis pendens is not carried to the extent of making it constructive notice of a prior unregistered deed; as, for instance, proceedings to foreclose an unrecorded mortgage do not constitute such a lis pendens as would be notice to a purchaser of mortgaged property. Barker v. Bartlett, 45 P. 1084; 1 Jones, Mortg., § 583; Newman v. Chapman, 14 Am. Dec. 766; Story's Eq. Jur. § 406; Wyatt v. Barwell, 19 Ves. 435; 1 Pindgree, Mortg. § 744; Douglas v. McCrakin, 52 Ga. 596. The doctrine of lis pendens does not rest upon the idea of notice. Jennings v. Kierman, 55 P. 443; Hennington v. Hennington, 27 Mo. 560; Lamont v. Chessier, 65 N.Y. 30, 13 Am. & Eng. Enc. L. 870, 871; 2 Devlin, Deeds, § 79. In an action to foreclose a mortgage the statute relating to the filing of a lis pendens is not applicable. § 5251 Rev. Codes; Brown v. Cohn, 69 N.W. 71. Lis pendens statutes do not create the law of lis pendens in the particular jurisdiction in which they are operative, but may rather be regarded as imposing limitations upon the common law otherwise existing upon the subject. The common law rule of lis pendens must not be regarded as in effect in each state except in so far as it has been modified by the statutes. 56 Am. St. Rep. 855, 856, note. The common law rule of lis pendens controlled this action of foreclosure, and while it is true that the defendant did not pay for the property until after the complaint and lis pendens had been filed, yet he fully paid for it before the summons in the action was served on any of the defendants. It therefore follows that the action was not pending for the purpose of constituting notice to defendant at the time he purchased; for, at common law, to constitute a lis pendens, the summons or subpoena must be served on some of the defendants. 13 Am. & Eng. Enc. L. 883; Leitch v. Wells, 48 N.Y. 585, 610; Duff v. McDough, 25 A. 608; Bank v. Taylor, 23 N.E. 347; Grant v. Bennett, 96 Ill. 513, 522; Hennington v. Hennington, 27 Mo. 560; Staples v. Handley, 12 S.W. 339; 2 Pomeroy, Eq. Jur. § 634; Majors v. Caldwell, 51 Cal. 478, 484; Freeman, Judg. § 195; Miller v. Kershaw, 23 Am. Dec. 183, 14 Am. Dec. 776 and note; Tigge v. Rowlan, 84 Ill.App. 238; 1 Jones, Mortg. § 584; Wade, Notice, § 348. One who has a contract for the purchase of property pays the consideration and takes the conveyance after the action affecting it has been instituted, is not a purchaser pendente lite. Parks v. Smoots Admin., 48 S.W. 146; Norton v. Birge, 35 Conn. 250; Jennings v. Kierman, 55 P. 443; Grant v. Bennett, 96 Ill. 515; Kursheedt v. W. D. S. Inst., 118 N.Y. 363; Lamont v. Chessier, 65 N.Y. 30. Paschke bought and parted with his money relying upon the record and abstract showing that the mortgage in question was owned by F. T. Walker and upon a satisfaction thereof, which was in fact executed by F. T. Walker and was in the possession of John P. Walker at the time the transaction was consummated, being delivered to Paschke on the payment of the purchase money. Plaintiffs, by failing to obtain and record an assignment of the mortgage, placed it in the power of Walker to deceive defendant and cause him to believe that Walker had authority to satisfy the mortgage. Therefore, the law treats the transfer to plaintiffs as void as against the conveyance to Paschke. Girardin v. Lampe, 16 N.W. 614; Merrill v. Luce, 61 N.W. 43; Livermore v. Maxwell, 55 N.W. 37; Merrill v. Hurley, 62 N.W. 958; Pickford v. Peebles, 63 N.W. 779; Quincy v. Ginesbach, 60 N.W. 511; Whipple v. Fowler, 60 N.W. 15; Pritchard v. Kalamazoo, 47 N.W. 31; Williams v. Jackson, 2 S.Ct. 814; Morris v. Beecher, 45 N.W. 696; Ogle v. Turpin, 102 Ill. 148; Ladd v. Campbell, 56 Vt. 529; Torrey v. Deavitt, 53 Vt. 331; Donaldson v. Grant, 49 P. 779; Van v. Marbury, 14 South. Rep. 273; Frank v. Snow, 42 P. 484; Moran v. Wheeler, 27 S.W. 54; Bank v. Anderson, 14 Ia. 544; Fallas v. Pierce, 30 Wis. 443; Van Kueren v. Corkins, 66 N.Y. 77; Bacon v. Van Schoonover, 87 N.Y. 446; Park v. Mackin, 95 N.Y. 347; Schwardz v. Leist, 13 Ohio St. 419; Parmeter v. Oakley, 28 N.W. 653; Cornog v. Fuller, 30 Ia. 212; Life Ins. Co. v. Talbot, 14 N.E. 586; 1 Jones, Mortg. § 479; 1 Pingree, Mortg. § § 656, 657; Bank v. Buck, 44 A. 93; Henderson v. Pilgrom, 22 Tex. 664; Swasey v. Emerson, 46 N.E. 426; Ferguson v. Glasford, 35 N.W. 820; Dawes v. Craig, 17 N.W. 778; Bowling v. Cook, 39 Ia. 200; Fletcher v. Kelley, 55 N.W. 474; Trust Co. v. Mfg. Co., 68 N.W. 587; Lewis v. Kirk, 28 Kan. 497; James v. Curtis, 78 N.W. 261. John P. Walker had authority to insert his own name as grantee and any consideration he might see fit to insert in the deed, in view of the fact that it is expressly found and was stipulated on the trial that F. T. Walker authorized John P. Walker to make such insertions. Logan v. Miller, 76 N.W. 1005; McCleary v. Wakefield, 2 L. R. A. 529, 41 N.W. 210; State v. Mathews, 10 L. R. A. 308, 25 P. 36; Vought's Executors v. Vought, 27 A. 489; Jennings v. Jennings, 34 P. 31; Cribben v. Deal, 27 P. 1046; Spitler v. James, 32 Ind. 202; Swartz v. Ballou, 47 Ia. 188; Inhabitants v. Huntress, 53 Me. 89; Phelps v. Sullivan, 104 Mass. 36; State v. Young, 23 Minn. 551; Field v. Stagg, 52 Mo. 534; Ex parte Kerwin, 8 Cow. 118; Stahl v. Berger, 10 Sarg. & R. 170; Wiley v. Moor, 17 Sarg. & R. 438. In the absence of express authorization authority to fill in such blanks may be inferred from circumstances. Van Etta v. Evenson, 28 Wis. 33; Davis v. Lee, 59 Am. Dec. 267; Inhabitants v. Huntress, 53 Me. 89; State v. Young, 23 Minn. 551; Swartz v. Ballou, 47 Ia. 118; Anguello v. Bowes, 67 Cal. 447. As against a bona fide purchaser a grantor is estopped from denying that the instrument is his deed when he has signed the same in blank and intrusted the possession thereof to a third person. 2 Am. & Eng. Enc. L. (2d Ed.) 258, 259. The conclusive presumption is, in the absence of any evidence to the contrary, that the parties intended to convey the land to the one who appeared on the face of the instrument to have paid the consideration for the deed. Mardes v. Meyros, 28 S.W. 693; Vineyard v. O'Connor, 36 S.W. 424; Newton v. McKay, 29 Mich. 1; Bay v. Posner, 26 A. 1084. There was evidence on the trial tending to show that a consideration of one dollar was inserted in the deed, and subsequently John P. Walker wrote after the word "one" the word "thousand," changing the consideration from one to one thousand dollars. The grantor authorized an insertion of any consideration in the deed which John P. Walker might see fit to insert. The case is not one of alteration, but the exercise by the party to whom the deed was delivered of a lawful authority. Even if treated as an alteration it was not material because as altered the instrument does not speak a language different in legal effect from that which it originally spoke. 2 Am. & Eng. Enc. L. (2d Ed.) 185, 222. The recital of a consideration is an immaterial part of the deed. 6 Am. & Eng. Enc. L. (2d Ed.) 767. An the change of the consideration does...
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