Jewett v. Iowa Land Co.

Decision Date29 May 1896
Citation64 Minn. 531,67 N.W. 639
PartiesJEWETT v IOWA LAND CO. ET AL.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

(Syllabus by the Court.)

1. E. gave a mortgage to C. on 740.33 acres of land. Upon 40 acres of this land three mechanics' liens were filed, and three actions to foreclose the same were commenced and consolidated. The complaints were filed in the office of the clerk of the district court under the mechanic's lien law, but only the 40 acres were referred to in the complaint. The mortgagor and mortgagee were made parties defendant. The mortgagor did not appear, but the mortgagee appeared, and filed its answer in the office of the clerk of the district court, in the nature of a cross bill, wherein it alleged its mortgage, and default in the payment thereof, and demanded relief, that such mortgage be foreclosed upon the 740.33 acres of land, which relief was granted by the court, and the premises were sold at foreclosure sale. Other than by reason of the filing of the cross bill the mortgagor had no notice thereof, and no actual service of the same was made upon the mortgagor, who did not appear in the foreclosure proceedings. Held, that the provisions of the mechanic's lien law for filing, instead of serving, pleadings, apply only to issues tendered by the complaint, or expressly authorized by the statute, and not to pleadings in the nature of cross bills, setting up matters outside of and foreign to such issues. Held, further, that one defendant cannot have a decree against a co-defendant upon a cross bill demanding affirmative relief upon new issues and for new objects, and not germane to the matter alleged in the original complaint, without proper notice to such co-defendant.

2. While judgments of courts of general jurisdiction impart absolute verity, and every presumption will be indulged in favor of the record, yet, if there is an apparent defect in the jurisdictional record, it may be impeached collaterally. Held, that it appearing affirmatively from the record in this case that the cross bill was filed in the office of the clerk of the district court, and never served upon this plaintiff as co-defendant in the foreclosure proceedings, who had no notice thereof, and did not appear in such proceedings, the court was without jurisdiction to render judgment upon the new matter embraced in the cross bill, and that, as the record itself establishes the invalidity of the former decree and judgment, they are impeachable collaterally.

3. The office of a lis pendens is merely to charge a subsequent purchaser with notice of the pendency of the action.

4. A void judgment cannot be validated by citing the party against whom it is entered to show cause why it should not be declared valid.

Appeal from district court, Washington county; W. C. Williston, Judge.

Action by W. P. Jewett, assignee of the Elmo Park Company, against the Iowa Land Company and others. From a judgment for defendants, plaintiff appeals. Reversed.

Flandrau, Squires & Cutcheon and W. J. Romans, for appellant.

Stevens, O'Brien, Cole & Albrecht, Harvey Officer, Bramhall & Taylor, and John E. Stryker, for interveners.

BUCK, J.

The plaintiff herein is the assignee of the Elmo Park Company, and is in possession of, and claiming title to, 740.33 acres of land situate in Washington county, in this state, and this action is brought to determine the adverse claims of the defendants. The Iowa Land Company, defendant, claims title through the foreclosure of a certain mortgage executed by the Elmo Park Company to the St. Paul Trust Company, trustee of said land company, defendant, covering the said 740.33 acres. Subsequent to the execution and recording of the mortgage, the defendant Grant, under a contract with the Elmo Park Company, constructed three buildings on a certain 40 acres included in the mortgage, and thereafter filed three separate mechanics' liens on the three buildings, respectively, but each lien embraced the same 40 acres. Thereafter Grant brought three separate actions in the district court of Washington county, to enforce these liens against the Elmo Park Company and the St. Paul Trust Company, as defendants, claiming that he was entitled to liens prior to said mortgage upon the buildings, respectively, and to a lien upon the 40 acres. The complaints in these actions did not describe or refer to any part of the 740.33 acres except the 40 acres covered by the mechanics' liens. The Elmo Park Company did not appear in either of these lien actions, nor take part in the proceedings therein. The St. Paul Trust Company appeared therein, and filed its answers to the several suits, in the office of the clerk of the court of Washington county, and at the same time filed three notices of lis pendens in the office of the register of deeds of said county. These answers were never served upon the Elmo Park Company, unless such filing of them with the clerk constituted service. In these answers, the St. Paul Trust Company claimed a prior lien to the said mechanics' liens, and also that default had been made in the payment of the sum secured by said mortgage; and it demanded judgment for the amount due on said mortgage debt, and for a foreclosure of said mortgage and a sale of the whole 740.33 acres, and for a personal judgment against the Elmo Park Company for any deficiency. It does not appear that the Elmo Park Company ever had any notice of the contents of these answers. Subsequently, these three actions were consolidated and tried as one action, and a judgment entered thereon adjudging the mechanics' liens as to the buildings to be prior liens to said mortgage, and directing a sale of the buildings to satisfy the respective mechanics' liens, and also adjudging the amount due on said mortgage, and also directing a sale of the 740.33 acres, and the entry of a personal judgment against the Elmo Park Company for any deficiency after the application of the proceeds of such sale to the mortgage debt. On August 19, 1892, the attorney for the St. Paul Trust Company made affidavits setting forth that said Elmo Park Company asserted that said judgment was not binding and valid as a foreclosure of said mortgage; and upon the same the court made an order, which was served upon the Elmo Park Company, to show cause why said judgment should not be and remain in full force and effect as against all of said real estate, and why said district court did not have full power and authority to order and direct the sale of all of said real estate described in said mortgage. The Elmo Park Company did not appear nor make any answer to the order to show cause. On the return day of the order, the district court made a further order, adjudging that said judgment should stand without modification, and that the whole of said real estate should be sold as therein ordered. Subsequently, the whole 740.33 acres was sold under said judgment to the Iowa Land Company, and a deficiency judgment for a large amount was entered and docketed against the Elmo Park Company. This action was brought before the time for redemption expired under said sale. The 40-acre tract described in the lien actions is entirely surrounded by other land described in the mortgage or trust deed, but this mortgage or trust deed also described and covered other independent and distinct tracts of land not connected or used with the 40-acre tract, and leased by the Elmo Park Company to other persons, and by them were, at the time of the commencement of the three lien actions, used, and since that time have been by them used and cultivated, as farm lands.

The important question to be determined is whether a mortgage covering several separate and distinct tracts of land can be foreclosed as to all of the mortgaged property, where a mechanic's lien holder brings an action to foreclose his lien upon one of these separate tracts, asking no other relief in his complaint, and makes the mortgagor a party to such action, and where such mortgagor does not appear, but the mortgagee does appear, and files an answer in the office of the clerk of the district court, as provided in Gen. St. 1894, § 6238, relative to the enforcement of mechanics' liens, and in such answer prays for a foreclosure of the mortgage upon all of the premises described in the complaint; the mortgagor having no actual notice of the relief demanded in the complaint, and no constructive notice, unless such filing so operates. If the question was merely whether a mortgagee of the premises upon which the mechanic's lien is claimed can be made a party, for the purpose of having the existence, date, and amount of his mortgage lien determined in the lien action, it would be concluded by the decision of this court in Finlayson v. Crooks, 47 Minn. 74, 49 N. W. 398, 645. In the discussion of this question, it would be well to bear in mind the fact that the liens of mechanics and material men on buildings and the land upon which they are erected, as security for the value of services performed and materials furnished, is purely the “creation of statute.” It was entirely unknown at common law or equity. Phil. Mech. Liens, § 1. The rule of procedure for enforcement of mechanics' liens is to a great extent defined by the statute. The complaint is to be...

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