Ildvedsen v. First State Bank of Bowbells

• Decision Date: 30 December 1912
• Citation: 139 N.W. 105,24 N.D. 227
• Parties: ILDVEDSEN v. FIRST STATE BANK OF BOWBELLS.
• Court: North Dakota Supreme Court

24 N.D. 227

139 N.W. 105

ILDVEDSEN

v.FIRST STATE BANK OF BOWBELLS.

Supreme Court of North Dakota.

Nov. 25, 1912.

Rehearing Denied Dec. 30, 1912.

Syllabus by the Court.

Plaintiff invokes the statutory remedy to determine adverse claims to real property, alleging in her complaint that she is the owner in fee of the property. Defendant answers denying such ownership in plaintiff and alleging that on April 25, 1911, one Peter Ildvedsen was the record owner of an undivided one-half interest in such property, and that on such date it caused a writ of attachment to be levied pursuant to law on such undivided one-half interest, in an action brought by it against said Peter Ildvedsen; that thereafter it recovered a judgment in such action against said Ildvedsen which was on August 9, 1911, duly docketed in the clerk's office, under which judgment execution was duly issued and such undivided one-half interest sold to defendant to satisfy such judgment and a sheriff's certificate on such sale was duly issued to it by the sheriff.

Held, that the rights of defendant under such attachment and execution sale are superior to the alleged rights of plaintiff under an unrecorded deed executed and delivered to her by her husband, the defendant in the attachment suit.

Under section 5038, R. C. 1905, an unrecorded deed is void as against subsequent purchasers in good faith and for a valuable consideration whose conveyance is first duly recorded; and also as against any attachment levied on the property or any judgment lawfully obtained against the person in whose name the title to such land appears of record, prior to the recording of such conveyance. Said statute is construed, and held, that the words “in good faith” have reference not only to subsequent purchasers, but to attachment and judgment creditors as well.

The record title to the property in question stood in the names of plaintiff and her husband as tenants in common, and it is accordingly held that plaintiff's possession of the premises was not sufficient to impute to defendant notice or knowledge of rights acquired by her under the unrecorded deed.

Plaintiff's possession being consistent with the record title, which disclosed such tenancy in common, she is presumed to have held such possession in subordination to the rights of her cotenant as thus disclosed by the public records.

Other facts found by the trial court relative to plaintiff's possession of the premises examined, and held insufficient to impute to defendant notice of her rights under such unrecorded deed.

The contention of respondent's counsel that the premises were the homestead of the plaintiff and family at the time the attachment was levied and the judgment entered is without foundation, either in the pleadings or in the facts as found by the trial court, and the judgment in plaintiff's favor quieting her title cannot therefore be sustained on such ground.

The attachment affidavit examined, and held not vulnerable to the attack made upon it by respondent's counsel.

Appeal from District Court, Ward County; K. E. Leighton, Judge.

Action by Rakkel Ildvedsen against the First State Bank of Bowbells. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

Coyle & Herigstad, of Minot, for appellant. Noble, Blood & Adamson and Palda, Aaker & Greene, all of Minot, for respondent.

FISK, J.

This is the statutory action to determine adverse claims to real property. The property involved consists of lots 13, 14, and 15 in block 4 of the original town site of the city of Minot. Plaintiff recovered judgment in the court below quieting her title as prayed for in the complaint, and the appeal brings the cause here for trial de novo.

The facts were stipulated, and consequently the findings of fact of the trial court are not in dispute. Such findings are in substance as follows:

“(1) That the property involved in this action is described as lots 13, 14, and 15, of block 4, of the town site of Minot, Ward county, N. D.

(2) That for three years next prior to the 25th day of April, 1911, the record title to said property was in the name of Peter Ildvedsen and Rakkel Ildvedsen, and that the said Peter Ildvedsen was the husband of the plaintiff, Rakkel Ildvedsen, until divorced.

(3) That about August 10, 1910, the plaintiff, Rakkel Ildvedsen, and her husband separated, and the plaintiff at said time commenced an action for divorce against the said Peter Ildvedsen, and since August 19, 1910, she has lived separate and apart from the said Peter Ildvedsen; he not having lived on the premises.

(4) That the attorney who prepared the summons and complaint in said action for divorce in behalf of the plaintiff was J. J. Coyle, one of the attorneys for the defendant in this action. That prior to December, 1910, the said J. J. Coyle was duly discharged and released as attorney for the said Rakkel Ildvedsen and Arthur Le Sueur and Noble, Blood & Adamson were employed by plaintiff as her attorneys in said divorce action.

(5) That on the 17th day of April, 1911, a decree of divorce was made and entered in said action in favor of plaintiff and against the said Peter Ildvedsen, and that on said date the said Peter Ildvedsen deeded by quitclaim deed all of his right, title, and interest in and to the property described in this action to the plaintiff, Rakkel Ildvedsen. That said deed was never recorded. That the defendant in this action or its attorney, J. J. Coyle, had no actual knowledge of the execution or delivery of said deed prior to September 14, 1911.

(6) That at and prior to the 17th day of August, 1910, and ever since said date, the plaintiff in this action has been in continuous actual possession of and resided in the building located upon the property described herein.

(7) That on the 25th day of April, 1911, Coyle & Herigstad, a firm of attorneys composed of the said J. J. Coyle hereinbefore referred to, and one O. B. Herigstad, instituted an action in behalf of the First State Bank of Bowbells, as plaintiff, and against the said Peter Ildvedsen and one Ralph Abbott, as defendants, and in said action did file and serve a notice of attachment in favor of said plaintiff, which is the defendant in this action, on the property above described.

(8) That in making the levy of said attachment the notice of levy was served on the 25th day of April, 1911, by Hans Hovind, deputy sheriff of Ward county, N. D., upon the plaintiff herein by delivering to and leaving with the plaintiff upon said premises the notice of said attachment, and as part of the return of said deputy sheriff he thus stated: ‘I further certify and return that I served a copy of the within notice of attachment upon Mrs. Peter Ildvedsen, the occupant of the above-described lots on the 25th day of April, 1911.’

(9) That the said Mrs. Peter Ildvedsen named in said sheriff's return was the same person as the plaintiff in this action, to wit, Rakkel Ildvedsen.

(10) That the plaintiff herein was not a party plaintiff or defendant in the said action in which the said attachment was levied, nor was she served with summons and complaint in said action, and the only papers served upon her was the notice of levy hereinbefore referred to. That she filed no third party claim or other appearance in said action.

(11) That the affidavit for attachment, omitting formal parts, is in words and figures as follows: ‘John J. Coyle, being first duly sworn, on oath says: That he is one of the attorneys for the plaintiff in the above-entitled action. That a cause of action exists against the defendants and in favor of the plaintiff herein for moneys had and received, as shown by the verified complaint in this action which was filed in this court on the 25th day of April, A. D. 1911. That the defendant is about to remove his residence from the county where he resides, with intentions permanently changing the same, and fails or neglects on demand to give security for the debt upon which this action is commenced. That the debt upon which the action is commenced was incurred for property obtained under false pretenses. And prays that a writ of attachment may be allowed and issued against the property of the said defendants herein, according to the statute in such case provided. John J. Coyle. Subscribed and sworn to before me this 25th day of April, 1911. Omon B. Herigstad, Notary Public, North Dakota. [Seal.]’

(12) That the complaint filed in said action is the ordinary complaint upon a promissory note, alleging the execution and delivery by Peter Ildvedsen and Ralph Abbott of their promissory note for the sum of $1,500, dated September 7, 1910, and payable six months after date with interest at 12 per cent. per annum, no part of which has ever been paid and containing a prayer for judgment for the amount thus due.

(13) That the said affidavit and complaint are the only...