O'Leary v. Schoenfeld
| Decision Date | 29 April 1915 |
| Citation | 152 N.W. 679,30 N.D. 374 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Mercer County, Nuchols, J.
Action to determine adverse claims to real property. Judgment of dismissal. Plaintiff appeals.
Affirmed.
Rice & Benson and C. B. Craven, for appellant.
In an action to quiet title, where plaintiff has proved in himself a good record title, it is incompetent for defendant to prove title in a third person, and thereby attempt to defeat plaintiff's title, where the evidence is silent as to possession. Gibson v. McGurrin, 37 Utah 158, 106 P 669.
A defendant cannot maintain a defense against a prima facie good title, without showing in himself some interest in the subject-matter of the action. To hold otherwise would not only be absurd, but dangerous, and contrary to all well-considered authorities. Inman v. White, 21 Colo.App. 427, 122 P. 65.
Appellant by his grantor, redeemed and has proved in himself a good record title, and as against one who has not in any manner shown himself interested in the title, or in the land, this is sufficient. He need not prove in himself an indefeasible title. Webster v. Kautz, 22 Colo.App. 111, 123 P 139; Empire Ranch & Cattle Co. v. Bender, 49 Colo. 522, 113 P. 494.
Neither the existence of a relation of trust between the parties, nor title in a third person, is a good defense. If defendant has no title, he cannot question that of plaintiff. Los Angeles County v. Winans, 13 Cal.App. 257, 109 P. 650; Empire Ranch & Cattle Co. v. Bender, 49 Colo. 522, 113 P. 494; Cramer v. McCann, 83 Kan. 719, 37 L.R.A. (N.S.) 108, 112 P. 832.
Defendant being without any title to the land, which is not in the possession of anyone, is not in position to question plaintiff's title. Horner v. Jarrett, 99 Ark. 154, 137 S.W. 820; Maynor v. Tyler Land & Timber Co., 236 Mo. 722, 139 S.W. 393.
By defendant's general denial, he denied plaintiff's claim of title, or that he was the owner in fee simple; but defendant also denied that he himself had any claim, title, or interest in the land hostile to plaintiff. Therefore, defendant cannot be injured by a judgment in plaintiff's favor. Gilchrist v. Bryant, 213 Mo. 442, 111 S.W. 1128; Larson v. Christianson, 14 N.D. 476, 106 N.W. 51; Brown v. Comonow, 17 N.D. 84, 114 N.W. 728; Donohue v. Ladd, 31 Minn. 244, 17 N.W. 381.
Defendant can neither question the redemption proceedings, because he has no interest in the land. The sheriff is not the agent of the holder of the sheriff's certificate to the extent that he can waive irregularities in the redemption proceedings, but he is his agent to the extent that such holder is bound by his acts unless expressly disaffirmed. North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 29 L.R.A. (N.S.) 508, 138 Am. St. Rep. 717, 117 N.W. 453.
A redemptioner who permits the statutory time of redemption to elapse without any effort to redeem is barred from challenging the regularity of a former redemption. McDonald v. Beatty, 10 N.D. 511, 88 N.W. 281; MacGregor v. Pierce, 17 S.D. 58, 95 N.W. 281.
Depositions not sealed up and indorsed with the title of the cause and the name of the officer taking them, and transmitted to the clerk of the proper court, but carried to such clerk by the attorney in the case, in the form of typewritten sheets, must be suppressed on motion. Rev. Codes 1905, § 7282, Comp. Laws 1913, § 7900; North Dakota Horse & Cattle Co. v. Serumgard, supra.
No notice of subsequent lien was filed and served. Such must be done before such lien can be included in a redemption proceeding. Styles v. Dickey, 22 N.D. 515, 134 N.W. 702.
A redemption from the purchaser at a sheriff's sale, and the issuance thereon of a certificate of redemption, is equivalent to an assignment of the certificate of sale. The converse of this rule is also true. Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256; White v. Costigan, 134 Cal. 33, 66 P. 78.
Respondents are now estopped to come in and attempt to avoid the effect of their own solemn contract and the agreement to pay these mortgages. Connor v. Howe, 35 Minn. 518, 29 N.W. 314; Yerkes v. Hadley, 5 Dakota 331, 2 L.R.A. 363, 40 N.W. 340.
One who is liable to pay an encumbrance on account of which a sale is made cannot build up an additional title on his own default. His purchase at such sale would only operate as a payment of the encumbrance. Maxfield v. Willey, 46 Mich. 252, 9 N.W. 271; Allison v. Armstrong, 28 Minn. 276, 41 Am. Rep. 281, 9 N.W. 806; Birke v. Abbott, 103 Ind. 1, 53 Am. Rep. 474, 1 N.E. 485; Smith v. Gaub, 19 N.D. 337, 123 N.W. 827; Franklin v. Wohler, 15 N.D. 613, 109 N.W. 56.
Where a proper redemption is made by the debtor or mortgagor, the effect of the sale is terminated, and he is restored to his estate. Work v. Braun, 19 S.D. 440, 103 N.W. 764.
Appellant, having paid in full the lien of the sheriff's certificate of sale, is entitled to be subrogated to the rights of the holder of the certificate. Rev. Codes 1905, § 6142; Comp. Laws 1913, § 6718; MacGregor v. Pierce, 17 S.D. 58, 95 N.W. 281.
A defense available to one person, or to one certain class of persons, is not available to others, indiscriminately. First Nat. Bank v. Messner, 25 N.D. 263, 141 N.W. 999.
C. F. Lamb, and Oliver Leverson, for respondent.
The judgment debtor or redemptioner may redeem the property sold within one year from sale on paying the purchaser the amount of his purchase with 12 per cent interest, and assessments and taxes paid after purchase, with such interest.
If the purchaser is also a creditor, having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the redemptioner must also pay such prior lien, and interest. State ex rel. Brooks Bros. v. O'Connor, 6 N.D. 285, 69 N.W. 692; North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 29 L.R.A. (N.S.) 508, 138 Am. St. Rep. 717, 117 N.W. 455; Leverson v. Olson, 25 N.D. 624, 142 N.W. 917; 25 Am. & Eng. Enc. Law, 2d ed. 8477; Boyle v. Dalton, 44 Cal. 332, and citations; Gilchrist v. Comfort, 34 N.Y. 235; 2 Freeman, Executions, 3d ed. § 320, note 161; Knight v. Fair, 9 Cal. 117; Rosekrans v. Hughson, 1 Cow. 428; Case v. Fry, 91 Iowa 132, 59 N.W. 333; People ex rel. Rice v. Ransom, 2 Hill, 51; Vandyke v. Herman, 3 Cal. 295; Jones v. Langhorne, 3 Bibb, 453; People ex rel. Austin v. Fralick, 12 Mich. 234; Grigg v. Banks, 59 Ala. 311.
In an action to determine adverse claims, the plaintiff must recover upon the strength of his own title, and a failure to show ownership will be fatal to plaintiff's action. In such an action a general denial puts in issue plaintiff's title. Larson v. Christianson, 14 N.D. 476, 106 N.W. 51; Hebden v. Bina, 17 N.D. 235, 138 Am. St. Rep. 700, 116 N.W. 85; Ottow v. Friese, 20 N.D. 86, 126 N.W. 503; Conrad v. Adler, 13 N.D. 199, 100 N.W. 722; Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227; Youker v. Hobart, 17 N.D. 296, 115 N.W. 839; Young v. Engdahl, 18 N.D. 166, 119 N.W. 169; Morse v. Pickler, 28 S.D. 612, 134 N.W. 809.
It is only after plaintiff has shown a right in himself that defendant's title becomes material. State ex rel. Brooks Bros. v. O'Connor, 6 N.D. 285, 69 N.W. 692; McGinnis v. Wheeler, 26 Wis. 655.
The courts of this state take judicial notice of the location of lands, where the section, town, and range are given, and the mere misnomer of the county will not nullify the instrument. Civil Code, Subdivs. 15, 30, 49, § 7319.
Statement of facts by
This is an action to quiet title to a half section of land in Mercer county, North Dakota. 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 & Company 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 & Company 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 & Company 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 encumbrances 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 & Company, 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 ...
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