Leonard v. Fleming
| Decision Date | 14 January 1905 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes county; Glaspell, J.
Action by William F. Leonard against Robert L. Fleming and others. Judgment for defendants; plaintiff appeals.
Young & Wright, for appellant.
An unrecorded deed or mortgage prevails over a subsequent attachment. Kohn v. Lapham, 82 N.W. 408; Murphy v. Plankinton Bank, 83 N.W. 575; Bateman v Backus, 4 Dak. 433, 34 N.W. 66; Roblin v Palmer, 67 N.W. 949; Norton v. Williams, 9 Ia 528; Plant v. Smythe, 45 Cal. 161.
Notice of lis pendens must state that the land described has been attached. Buxton v. Sargent, 7 N.D. 503, 75 N.W. 811; McCarthy v. Speed, 80 N.W. 135; Smith v. Gale, 144 U.S. 509, 36 L.Ed. 521, 12 S.Ct. 674.
An attachment bond in a penal sum less than required by law is void, and cannot be amended. Drake on Attachments, section 139 et seq., and section 146; 5 Enc. Pl. & Pr. 33.
The death of the defendant in attachment proceedings operates to dissolve the attachment and render void a subsequent judgment. Yankton Sav. Bank v. Gutterson, 90 N.W. 144; Meyers v. Mott, 29 Cal. 359, 89 Am. Dec. 49; Hensley v. Morgan, 47 Cal. 622; Day v. Superior Court of San Francisco, 61 Cal. 489; Ham v. Cunningham, 50 Cal. 365; Sweringen v. Eberius' Adm'r, 38 Am. Dec. 463; Franklin Bank v. Bathelder, 39 Id. 610; Black on Judgments, 199.
Such is the law in this state except as changed by statute. Section 5434, Code of Civil Proc., 6469, 6470, 6471, Probate Code. Anheier v. Signor, 8 N.D. 499, 79 N.W. 983; Bunker v. Taylor, 83 N.W. 555; O'Neil v. Murray, 50 N.W. 619; Brettell v. Deffeback, 60 N.W. 167; McCormick Harvesting Mach. Co. v. Snedigar, 53 N.W. 83.
A judgment against a person, who is dead before completion of service upon him, is void and subject to collateral attack. Kager v. Vickery, 49 L. R. A. 153; Hodgson v. McKinstry, 42 P. 929; Kansas, O. & T. Ry. Co. v. Smith, 19 P. 636; Rice Co. Comm. v. Lawrence, 29 Kan. 158; McLaughlin v. State, 17 Kan. 283; Richards v. Thompson, 43 Kan. 209, 23 P. 106; McCullock v. Norwood, 58 N.Y. 562; Coleman v. McNulty, 57 Am. Dec. 229; Reid v. Holmes, 127 Mass. 326; Danford v. Danford, 111 Ill. 236; Granes v. Ewart, 11 S.W. 971; Crosley v. Hutton, 11 S.W. 613; Williams v. Hudson, 6 S.W. 261; State ex rel. v. Tait, 18 S.W. 1088; Richards v. Thompson, 23 P. 106; McCormick v. Paddock, 30 N.W. 602; Jennings v. Simpson, 11 N.W. 880.
Declarations of a grantor after the date of his grant are not admissible to overcome his deed. 1 Am. & Eng, Enc. Law (2d Ed.) 685; Bump on Fraudulent Conveyances, section 599.
A party cannot prove or disprove title to land by his adversary's admissions of title or want of it. Walker v. Dunspaugh, 20 N.Y. 170; Clark v. Baird, 9 N.Y. 183; Terry v. Chandler, 16 N.Y. 354, 69 Am. Dec. 707n.
Lee Combs, for respondents.
A notice of lis pendens affects a purchaser with constructive notice of all that appears on the face of the pleadings when he takes his deed, and such as inquiry pursued with diligence would bring to his knowledge. Jones v. McNarrin, 68 Me. 334, 28 Am. Rep. 66; Tilton v. Cofield, 93 U.S. 163, 23 L.Ed. 858; Lewis v. Quinker, 59 Ky. 284; Amer. Exchange Bank v. Andrews, 59 Tenn. 306; Center v. Planter's & Merchant's Bank, 22 Ala. 743; Allen v. Poole, 54 Miss. 323.
The alleged deed was never delivered or accepted by the parties thereto, and no interest in the land passed to plaintiff. Hulick v. Scovil, 9 Ill. 159; Church v. Gilman, 15 Wend. 656, 30 Am. Dec. 82.
The statutory presumption, that a deed was delivered on the day of its date, cannot prevail when the deed was executed in another state, as there is no presumption that the statutes of one state are the same as those of another. Murphy v. Collins, 121 Mass. 6; Downs v. Minchow, 30 Ala. 86; Gordon v. Ward, 16 Mich. 360; Rohan Bros. Boiler Mfg. Co. v. Richmond, 14 Mo.App. 595; Rundy v. Rio Grande W. Ry. Co., 8 Utah 165, 30 P. 366.
The presumption that a deed was delivered at the time of its date may be rebutted. Cain v. Robinson, 20 Kan. 456; Cutts v. York Mfg. Co., 18 Me. 190; Baning v. Edes, 6 Minn. 402.
Registering a deed is not a delivery unless it appears that the grantee knew of it and assented thereto. Alexander v. Dekermel, 81 Ky. 345; Maynard v. Maynard, 10 Mass. 456, 6 Am. Dec. 146; Deere v. Nelson, 34 N.W. 809; O'Connor v. O'Connor, 100 Ia. 476, 69 N.W. 676; 1 Dembitz on Law of Titles, 362.
Defendants' adverse possession for ten years and payment of taxes by them for that period, made them absolute owners of the land. The possession of their vendees was the possession of the defendants. Schneller v. Plankinton, 12 N.D. 562, 98 N.W. 77; Whitney v. Wright, 15 Wend. 171; Jackson v. Johnson, 5 Cow. 74, 15 Am. Dec. 433; Hale v. Gladfelder, 52 Ill. 91.
Taxes may be paid by claimant or on his behalf. J. B. Streeter, Jr., Co. v. Frederick, 11 N.D. 300, 91 N.W. 692; Timmons v. Kidwell, 27 N.E. 756; Dawley v. Van Court, 21 Ill. 460; Fell v. Cessford, 26 Ill. 525.
Failure to file sufficient undertaking in attachment does not render the attachment void except as to the defendant in the attachment case. O'Farrell v. Stockman, 19 Ohio St. 296; Kemps, Lessee, v. Kennedy, 5 Cranch 173; Baxter v. Smith, 4 P. 35.
An attachment is a proceeding in rem, and if defendant dies before service is complete a judgment may be rendered against him, and it cannot be attacked collaterally. French v. Baker, 21 Ill.App. 432; Oswald v. Kampmann, 24 F. 36; Thacker v. Chamber, 24 Tenn. 313, 42 Am. Dec. 431; Harrison v. Pender, 57 Am. Dec. 573; Lowber & Willmar's App., 42 Am. Dec. 02; Yaple v. Titus, 41 Pa. 195; Jennings v. Simpson, 11 N.W. 880; Day v. Goodwin, 73 N.W. 864; Gulickson v. Bodkin, 80 N.W. 783; Hahn v. Kelly, 34 Cal. 391.
A ten-year-old judgment cannot be attacked collaterally, where there has been no motion to vacate or modify it and no good reason has been shown for the failure to do so. Campbell v. Jones, 52 Ark. 493, 12 S.W. 1016; Stocking v. Hanson, 22 Minn. 546; Beach v. Reynolds, 53 N.Y. 1.
Action to determine adverse claims to 160 acres of land situated in Barnes county. Plaintiff alleges in the complaint that he is the absolute owner thereof, and that the defendants claim it adversely to him. The plaintiff and the defendants claim the title from a common source. The plaintiff claims title and the right to possession through a warranty deed from George W. Toms and wife, dated on November 4, 1892, acknowledged on November 8, 1892, and recorded on January 17, 1893. The defendants claim ownership by virtue of a sheriff's deed dated August 2, 1894, based upon attachment proceedings in an action commenced against George W. Toms, plaintiff's grantor, by one Compton, and levied upon the land on December 10, 1892. Plaintiff's grantor was a nonresident of the state, and service is claimed to have been made upon him by the publication of the summons. Toms died on January 21, 1893, before the last publication of the summons was made. Judgment was rendered against the defendant on March 10, 1893, for the recovery of the sum claimed to be due; but the judgment provided that it was a judgment in rem, and to be enforced by the sale of the land attached only. There was no substitution of the personal representatives of Toms after his death. Whether this judgment was a valid judgment, and whether a sale thereunder operated to divest Toms' interest in the land, if any he had when the attachment was levied, we need not determine, as the merits are disposed of on another ground. The trial court found that the plaintiff has no interest in the land in suit, and that the defendants Fleming and Reeves are the owners thereof by virtue of the sheriff's deed issued to Fleming, and his subsequent conveyance to Reeves of an undivided one-half interest therein. The trial court also found that the defendants were the owners of this land by reason of the actual and open possession thereof for ten years, under the provisions of section 3491a, Rev. Codes 1899. Plaintiff appeals from a judgment dismissing his action, and demands a review of the entire case, under section 5630, Rev. Codes 1899.
The defendants contend that plaintiff's deed was not delivered, and, if delivered at all, not until after the attachment was levied, and consequently conveyed no title as against the attachment proceedings under which the land was sold to the defendant Fleming. The deed was produced by plaintiff at the trial, and offered in evidence by him. There is no evidence as to the time of delivery except the recitals of the deed. The fact of the making and delivery of the deed is not made an issue by the pleadings. The answer admits the delivery of the deed in express words, as follows: "Further answering, these defendants allege that said conveyance referred to was executed and delivered at a time when said Toms had no interest in or lien upon said property, and at a time when said Toms was not in possession of said real estate, and when he had not received the rents and profits thereof for more than one year prior to the execution and delivery of said purported conveyance." Under such an allegation, defendant is concluded from now asserting that there is no proof of the fact of delivery.
The time of the delivery of the deed is not shown by independent evidence. This fact is not of controlling importance. The statute provides that "a grant duly executed is presumed to be delivered at its date." Section 3516, Rev. Codes 1899 (section 3230, Comp. Laws). In the absence of evidence to overthrow the presumption of delivery as of the date of the deed, the deed speaks for itself, and determines...
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