O'Leary v. Schoenfeld

• Decision Date: 29 April 1915
• Citation: 30 N.D. 374,152 N.W. 679
• Parties: O'LEARY v. SCHOENFELD et al.
• Court: North Dakota Supreme Court

30 N.D. 374

152 N.W. 679

O'LEARY

v.SCHOENFELD et al.

Supreme Court of North Dakota.

April 29, 1915.

Syllabus by the Court.

Where a second mortgagee purchases at the sale under a foreclosure by the first mortgagee, a third mortgagee whose mortgage expressly states that it is given subject to such second mortgage, must, in order to redeem from such purchaser, not only pay the amount of his purchase with 12 per cent. interest, together with the amount of any assessments or taxes which such purchaser may have paid thereon after the purchase and interest at the same rate on such amount, but must also pay the amount of the second mortgage lien with interest, and a tender to the sheriff of the mere amount of the purchase with interest which is not consented to or accepted by the second mortgagee, will not affect a redemption under section 7754, Compiled Laws of 1913, even though the second mortgage may not yet be due.

Section 7756, Compiled Laws of 1913, applies merely to redemptioners and not to purchasers.

In an action to determine adverse claims the plaintiff must recover upon the strength of his own title, and the failure to show such title will be fatal to his action.

A general denial, which is filed in an action to determine adverse claims, in which the plaintiff alleges title in fee in himself, puts in issue such title.

The erroneous insertion in a mortgage of the name of an adjoining county will not invalidate the instrument, where the section, township, range, and state in which the land is located are correctly stated.

The courts will take judicial notice of the location of land which is described in an instrument, and in so far as the county is concerned, provided the section, township, range, and state are correctly stated therein, even though the wrong county is mistakenly inserted.

There is a presumption in favor of the regularity of taking depositions and of the proper performance of duty by the officer taking them, and a motion to suppress a deposition should generally be denied where no prejudice is shown which arises from the defect complained of.

The word “transmit,” as used in section 7900 of the Compiled Laws of 1913, and in relation to the transmission of depositions by the officer taking them to the clerk of the district court of the county in which the action is pending, does not mean the personal carrying by the officer, nor necessarily the sending through the mails, but is satisfied by any means selected by such officer which will secure the safe transfer of the document without its being tampered with by any one (citing Words and Phrases, Second Series, Transmit).

A court does not abuse its discretion which refuses to suppress a deposition for the mere reason that it was carried to the clerk of such court by one of the attorneys interested in the case and where the evidence shows that such deposition was addressed and sealed and promptly delivered, and that when delivered to such clerk such seal was unbroken, and where there is no evidence whatever or attempt to show, that said deposition has been changed or mutilated in any manner.

Appeal from District Court, Mercer County; Nuchols, Judge.

Action by John O'Leary against F. W. Schoenfeld and others to determine adverse claims to real property. From the judgment of dismissal, plaintiff appeals. Affirmed.

This is an action to quiet title to a half section of land in Mercer county, N. D. A judgment was entered dismissing the complaint,and a trial de novo is requested. The original owner of the half section appears to have been one J. H. Babcock. On the 15th day of August, 1907, Babcock mortgaged the land to A. D. Clark & Co. to secure the payment of a debt of $1,280. This mortgage was recorded on the 21st day of February, 1908. On the 22d day of August, 1907, the said Babcock conveyed the land to the Dayton-Clark Land Company, a corporation, and this deed was also recorded on the 21st day of February, 1908. On the 26th day of April, 1909, the Dayton-Clark Land Company deeded the land to one Richard Champion, who assumed and agreed to pay the A. D. Clark & Co. mortgage, before mentioned. This deed was recorded on the 9th day of March, 1910. On the same day the said Champion mortgaged the land to the said Dayton-Clark Land Company to secure the payment of two notes of $800 and $144, respectively, due April 26, 1911, and also to secure the payment of two notes for $800 and $96, respectively, due April 26, 1912, which mortgage was recorded on the 6th day of April, 1910. On the 3d day of March, 1910, the said Richard Champion again mortgaged the land to the Empire Land Company to secure the payment of the sum of $354, which mortgage was recorded on the 25th day of April, 1910, and recited the mortgage before given by J. H. Babcock to A. D. Clark & Co. for $640, and the mortgage from the said Richard Champion to the Dayton-Clark Land Company for $1,600. On the 14th day of October, 1910, the said Richard Champion deeded the land free of all incumbrances to one Edith Smith, and this deed was recorded on October 17, 1910. Later the original mortgage, which was given on the 15th day of August by the original owner, J. H. Babcock, to A. D. Clark & Co., was foreclosed by advertisement, and the land sold on January 4, 1911, to the Dayton-Clark Land Company for the sum of $772.35, and a certificate issued to the said Dayton-Clark Land Company, which was recorded on the 9th day of January, 1911. Later, and on the 21st day of February, 1911, Edith Smith, the purchaser from Richard Champion, the purchaser from the Dayton-Clark Land Company, the purchaser from J. H. Babcock, deeded the land to the defendant, F. W. Schoenfeld, “subject to mortgages of $2,600,” although there was no express assumption thereof, and this deed was recorded on the 18th day of April, 1911. Later still, and on the 12th day of April, 1911, the said Schoenfeld and wife deeded the northeast quarter of said section to the defendant Emma Tipple and the southeast quarter to the defendant Maria R. Tipple, which deeds were recorded on the 18th day of April, 1911, and both of which deeds were subject to a “certain mortgage of $1,300,” which the grantee assumed and agreed to pay. Prior to these conveyances to Edith Smith and to F. W. Schoenfeld, namely, on March 26, 1910, the Empire Land Company assigned to the Moody County Bank the mortgage given by the said Richard Champion to the said Empire Land Company on the 3d day of March, 1910, which assignment was recorded on April 25, 1910. Later, and on the 4th day of January, 1912, the Moody County Bank, as assignee of such mortgage, paid to the sheriff of Mercer county the sum of $889.73, being the amount for which said land was sold under the foreclosure of the mortgage made by J. H. Babcock to A. D. Clark & Co., with interest thereon, and the fees of said sheriff for executing the certificate of redemption, said payment being made for the purpose of redeeming from the foreclosure sale to the Dayton-Clark Land Company, which was on that date the holder of the sheriff's certificate under the foreclosure and also owner and holder of the mortgage for $1,600 given by said Richard Champion to the said Dayton-Clark Land Company, no part of which had been paid, and which mortgage was prior in execution and record to the mortgage held by the said Moody County Bank, as assignee of the Empire Land Company, and under which the Moody County Bank sought to redeem, having been made prior to the said mortgage to the Empire Land Company, and said last mortgage being also by its express terms subject thereto. No other offer was made to pay the amount of said mortgage of $1,600, nor tender made, either to the sheriff or to the owner of such mortgage, nor was the amount which was paid ever paid by the sheriff to the Dayton-Clark Land Company. It is shown, however, that such mortgage of $1,600 was not entirely due at the time of the attempted redemption by the Moody County Bank, but one note thereof of $800 was due and payable on April 26, 1912.

The sheriff, however, executed and delivered a certificate of redemption to the Moody County Bank, reciting the payment of the said sum of $889.73, and this certificate was recorded on January 4, 1912. The money received, however, seems never to have been paid by the sheriff to the Dayton-Clark Land Company, nor to have been tendered to them, and is still in the possession of the sheriff. Later, and on the 15th day of February, 1912, the Dayton-Clark Land Company, without any actual notice of said payment by the Moody County Bank, assigned to the defendant F. W. Schoenfeld, for a valuable consideration, the sheriff's certificate of sale, executed by the sheriff on the 4th day of January, 1911, and on the foreclosure sale of said land to the Dayton-Clark Land Company of the mortgage from J. H. Babcock to A. D. Clark & Co., together with a written assignment of the mortgage on said land given by said Richard Champion to the Dayton-Clark Land Company on the 26th day of April, 1909. Later, and on the 14th day of February, 1912, the said sheriff executed and delivered to the said defendant F. W. Schoenfeld a sheriff's deed to said land, based on the certificate of sale issued to the Dayton-Clark Land Company, and by it assigned to the defendant F. W. Schoenfeld. This was recorded on the 20th day of February, 1912. Later, and on the 27th day of May, 1912, the sheriff executed and delivered another deed to the said Moody County Bank, based on its payment to said sheriff of the $889.73 aforesaid, as a redemptioner, and on the 23d day of September, 1912, the Moody County Bank deeded the said land to the plaintiff, John O'Leary, who brought this action to quiet title, and who appears to have paid the taxes for the year 1911. The trial judge rendered a judgment decreeing that the plaintiff had no estate or interest in, nor lien nor incumbrance in, said land, and dismissing the plaintiff's action. From this...