Lang v. Binstock, 910095

• Decision Date: 09 December 1991
• Docket Number: No. 910095,910095
• Citation: 478 N.W.2d 13
• Parties: Ernest LANG, Plaintiff and Appellant, v. Anton BINSTOCK, Defendant, The Bank of Steele, A.J. Barrios, the Sheriff of Burleigh County, and the Bank of North Dakota, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 13

478 N.W.2d 13

Ernest LANG, Plaintiff and Appellant, v. Anton BINSTOCK, Defendant The Bank of Steele, A.J. Barrios, the Sheriff of Burleigh County, and the Bank of North Dakota, Defendants and Appellees.

Civ. No. 910095.

Supreme Court of North Dakota.

Dec. 9, 1991.

Ernest Lang, pro se.

Kent M. Morrow, Asst. Atty. Gen., Bismarck, for defendant and appellee Bank of North Dakota.

Arlen M. Ruff of Kelsch, Kelsch, Ruff & Austin, Mandan, for defendant and appellee Bank of Steele.

Patricia L. Burke, State's Atty., Bismarck, for A.J. Barrios, Deputy Sheriff of Burleigh County.

VANDE WALLE, Justice.

Ernest Lang appealed from judgments and orders dismissing his claims arising out of the foreclosure sale of his real property. We affirm.

Lang sought damages arising out of the 1984 foreclosure sale of his real property conducted by A.J. Barrios as Deputy Sheriff of Burleigh County for the benefit of the Bank of North Dakota. The Bank of North Dakota received a sheriff's certificate at that sale and assigned the certificate to the Bank of Steele, a second mortgagee. The Bank of Steele sold its interest in Lang's property to Anton Binstock, who had Lang evicted from the property in 1987. Lang sued each of these parties, alleging various wrongs and claiming a right to damages and the restoration of his property. The district court issued orders dismissing all of the defendants. Binstock was dismissed upon Lang's motion. Lang's appeal contests the dismissal of the other defendants.

The district court dismissed Lang's claim against the Bank of North Dakota (BND) because Lang failed to state a basis for that claim. See NDRCivP 12(b)(v). Lang's complaint included many specific allegations concerning BND, but they related to only two actions by BND. Lang alleged that BND received a sheriff's certificate in a foreclosure sale, and that BND assigned that sheriff's certificate to the Bank of Steele. In Lang v. Bank of North Dakota, 377 N.W.2d 575 (N.D.1985), we concluded that because Lang had failed to redeem his real property, or to timely appeal from the order denying Lang's motion to enjoin the sale, the foreclosure was final. We have also reviewed the assignment of the sheriff's certificate and have found no illegality in that transaction. Bank of Steele v. Lang, 399 N.W.2d 293 (N.D.1987); Lang v. Bank of Steele, 415 N.W.2d 787 (N.D.1987). We have, however, recognized the possibility that Lang stated a claim for the deprivation of a statutory right to repurchase the property. Lang v. Bank of North Dakota, 423 N.W.2d 501 (N.D.1988). That claim is the subject of a separate lawsuit brought by Lang against BND in district court. Because the BND actions alleged by Lang have been previously found proper, or final, or the subject of pending litigation, the district court properly concluded that Lang's complaint did not set out a new basis for a damage claim against the Bank of North Dakota.

The district court dismissed Lang's claim against Barrios because it was not begun within the applicable statute of limitations. Section 28-01-17, NDCC, requires that an action against a sheriff based on an act done in his official capacity must be commenced within three years after the claim accrues. Lang sued Barrios for his actions during the May 11, 1984, sale of Lang's real property, conducted as Deputy Sheriff of Burleigh County, contrary to section 28-23-07, NDCC. That section requires the sale of real property consisting of known lots or parcels to be sold separately. This, Lang says, Barrios did not do. Assuming, without deciding, that Barrios did not conduct the sale as required by law, the question becomes, at what point Lang could sue Barrios for that failure.

In this appeal, Lang argues that he was not injured until he was evicted in May 1987. Violation of a manner-of-sale statute by a sheriff...