Johnson v. Brunner

• Decision Date: 15 January 1942
• Docket Number: 6810.
• Citation: 1 N.W.2d 871,71 N.D. 446
• Parties: JOHNSON v. BRUNNER et al.
• Court: North Dakota Supreme Court

1 N.W.2d 871

71 N.D. 446

JOHNSON v. BRUNNER et al.

No. 6810.

Supreme Court of North Dakota

January 15, 1942

Syllabus by the Court.

1. An action brought to foreclose a mortgage on real estate in which the State of North Dakota claims an interest as being an owner of a portion thereof, is, so far as the State is concerned, an action respecting title to property, and is such an action as may be brought against the State under the provisions of section 8175 of the Compiled Laws of this State.

2. Where the complaint in an action to foreclose a mortgage on real estate alleges that the State claims an interest in the land involved, and requires the State to set forth its claim and the State answers, setting forth that it is the owner of a portion of said land, having purchased said land in its sovereign capacity for the purpose of establishing a highway a demurrer to said answer on the ground that it does not state facts sufficient to constitute a defense should be overruled, as a court of equity, in the trial of the case will determine the rights of the respective parties if foreclosure be ordered.

Clara J. Johnson, of Minot, for plaintiff-respondent.

Alvin C. Strutz, Atty. Gen., and C. E. Brace, Asst. Atty. Gen., for defendant-appellant.

BURR, Chief Justice.

Plaintiff seeks to foreclose a real estate mortgage, making the State one of the parties defendant. The complaint alleges that this defendant claims to have interests in the real estate, but that such interests, if any, are inferior to the mortgage lien. Plaintiff prays the court require the State to set forth its claims to the estate, and that the State be "forever debarred and foreclosed of any and all estate or interest in *** said mortgage premises, except the right of redemption," and for such other relief as to the court may seem just and equitable.

The State answers, claiming to be the owner of a portion of the land involved, by virtue of a warranty deed from the mortgagor executed and delivered after the mortgage was recorded.

The answer shows the State has an interest in the land. Its contention is based upon the fact that this land was bought for the purpose of establishing a highway across the land involved that the highway was built and is being maintained as part of the highway system of the State, all prior to the commencement of the action; and that this being so, the plaintiff can not maintain an action to foreclose this mortgage as against the State, so far as it involves the real estate to which the State has legal title, asserting such action is one which can not be maintained without the consent of the State.

The answer admits all of the allegations of the complaint, except the allegation that a power of attorney, directing foreclosure had been executed and delivered to plaintiff's counsel. Thus, so far as the real issues are concerned, the answer admits all of the important essential facts. The answer demands that the action be dismissed "in so far as it relates to the real property so sold and conveyed to the State of North Dakota".

The plaintiff demurred to the answer on the ground the same does not set forth facts sufficient to constitute a defense. By demurring, the plaintiff admitted all of the allegations of the answer. The court sustained the demurrer, and the State appeals.

It is the contention of appellant that on the face of the record, it is shown clearly the State can not be sued; "that a suit to foreclose, where the State is not directly liable for the debt secured, is not one within the...