McCardia v. Billings
| Decision Date | 31 October 1901 |
| Citation | 87 N.W. 1008,10 N.D. 373 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pembina County; Kneeshaw, J.
Spencer & Sinkler, (Tracy R. Bangs, of counsel), for appellant.
The mortgage of a homestead must be signed and acknowledged by both husband and wife. § 2451 Comp. Laws, § 3608, Rev. Codes; Myrick v. Billings, 5 Dak. 167. Plaintiff testified that she never signed or acknowledged the instrument, and the notary does not certify that she did. Nothing will be presumed in favor of a notary's certificate of acknowledgement. Harty v. Ladd, 3 Ore. 353 Lindlie v. Smith, 46 Ill. 523; Danglarde v. Elias, 22 P. 69; Hand v Weidner, 25 At. Rep. 38; Wetmore v. Laird, 5 Biss. 160. Plaintiff not having acknowledged the mortgage the certified copy has no evidentiary value to prove its execution. Gale v. Shillock, 4 Dak. 192; Meskiman v. Day, 10 P. 14; McGinnis v Egbert, 5 P. 652; Maxwell v. Higgins, 57 N.W 389; Hunt v. Selleck, 24 S.W. 213. The date of the mortgage not having been stated in the notice of sale the foreclosure by advertisement was void. Code, 1877, § 601. This statute is similar to the Minnesota statute. Minn. St. 1894, § 6033; Clifford v. Tomlinson, 62 Minn. 195, 64 N.W. 381; Martin v. Baldwin, 16 N.W. 447; Mason v. Goodnow, 42 N.W. 482; Peasley v. Ridgway, 84 N.W. 1024. The advertisement of the sale should fully comply with the terms of the power, and a bare literal compliance is not enough. 2 Jones Mtgs., 1839; Roche v. Farnsworth, 106, Mass. 509; Hoffman v. Anthony, 6 R. I. 282. The sheriff's certificate was void because not acknowledged. § 5420, Comp. Laws; § § 5853, 5538, Rev. Codes. The sheriff's deed was not entitled to record because not properly acknowledged. Gale v. Shillock, 4 Dak. 192; Meskiman v. Day, 10 P. 14; Maxwell v. Higgins, 57 N.W. 389; Lydiard v. Chute, 47 N.W. 967; McGinnis v. Egbert, 5 P. 652. Section 3491a, Rev. Codes, is retroactive and unconstitutional. Sharpe v. Malkenship, 59 Cal. 288. The statute, if given effect, would take away vested rights. Moore v. Brownfield, 34 P. 199; Sear v. Choir, 32 P. 776; Tacoma Bridge Co. v. Clark, 36 P. 135; Mecklin v. Blake, 99 Am. Dec. 68. Defendants cannot take advantage of this statute if unconstitutional, because the first payment of taxes was made by grantors of defendant on the 1st day of October, 1890, and the statute did not begin to run in their favor until said day. This action was commenced April 3rd, 1900, and the bar had not fallen. Lyman v. Smilie, 87 Ill. 259; Burlton v. Ferrie, 23 N.E. 60; Hurbut v. Bradford, 109 Ill. 297; Beaver v. Taylor, 68 U.S. 637.
C. J. Murphy, for respondents.
A certificate of acknowledgement cannot be impeached except upon proof which clearly shows it to be false and fraudulent. Pereau v. Frederick, 22 N.W. 235; Hourentine v. Schnoor, 33 Mich. 274. In the absence of fraud a court will not allow the statutory mode of proving the acknowledgement to be impeached by parol that the parties did not make the acknowledgement as certified by the officer. Graham v. Anderson, 42 Ill. 514; Lickmon v. Harding, 65 Ill. 505; Lowry v. Orr, 1 Gilm. 70. The fact that the date of the mortgage in the notice of foreclosure, sheriff's certificate and deed was incorrectly given does not vitiate the foreclosure. Reading v. Waterman, 8 N.W. 692; Lee v. Cleary, 38 Mich. 223; 2 Jones Mtgs. 1854; Iowa Inv. Co. v. Shepherd, 66 N.W. 451; Bacon v. Ins. Co., 131 U.S. 131; Judd v. O'Brien, 21 N.Y. 186; Hoyt v. Powtucket, 110 Ill. 390; Candee v. Burk, 1 Hun. 546. The defective certificate of an acknowledgment upon the sheriff's certificate of sale did not vitiate the foreclosure. The foreclosure transferred the title. The certificate executed pursuant thereto was simply evidence of that transfer. The certificate, and the recording of it, is simply for the protection of third parties. The provisions requiring same are not mandatory but directory only. Jackson v. Young, 5 Cow. 269; Barnes v. Kerlinger, 7 Minn. 82; Robbins v. Rice, 7 Gray 202. Failure on the sheriff's part to record the certificate of sale within ten days is not fatal to the validity of the same. Johnson v. Day, 50 N.W. 701. If the certificate was not properly acknowledged, still there was an acknowledgement which, at most, can only be said to be defective, and such defectiveness was cured and made proper evidence by statute. § 3585, Rev. Codes, 1899. Had the deputy given the certificate in his own name without mentioning his principal, this irregularity would not have invalidated the sale. Hodgdon v. Davis, 50 N.W. 478. Appellant, having slumbered on her rights, if she had any, for over sixteen years, should not be permitted at this day to question the validity of the sheriff's sale on foreclosure, through which respondents claim. After this lapse of time every apparent defect is to be supplied by intendment. Bergen v. Bennett, 1 Caines Cas. 1; Demarest v. Wynkop, 3 Johns, Ch. 145; Butterfield v. Farnham, 19 Minn. 92; Menard v. Crowe, 20 Minn. 452; Hamilton v. Lubukee, 51 Ill. 415; Bacon v. Ins Co., 131 U.S. 131; Powers v. Kitching, 86 N.W. 737, 10 N.D. 254, Section 3491a, Rev. Codes, 1899, is valid though retroactive. It is a statute of limitations. Statutes identical in language have been so held, and sustained as constitutional on that ground. Irving v. Brownell, 11 Ill. 402; Woodward v. Blanchard, 16 Ill. 424; McConnell v. Street, 17 Ill. 255; McClelland v. Kellogg, 17 Ill. 498; Harding v. Butts, 18 Ill. 502; Newland v. Johnson, 19 Ill. 380; Newland v. Marsh, 19 Ill. 352; Hinchman v. Whetstone, 23 Ill. 114. The period prescribed in this law within which suit could be brought as to existing causes of action was sufficient. The time allowed for creditors to commence their actions was reasonable, and, whether reasonable or not, it was a question within the exclusive province of the legislature to determine. Smith v. Harrison, 22 Pick. 430. The following cases illustrate what time has been held reasonable within which suits may be brought under limitation statutes: Duncan v. Menard, 32 Minn. 460, 21 N.W. 71; Berliner v. Waterloo, 14 Wis. 378; State v. Bailey, 16 Ind. 46; Parsons v. Baird, 2 Greene (Ia.) 235 Howell v. Howell, 15 Wis. 60; Stine v. Bennett, 13 Minn. 153; Bigelow v. Bemis, 2 Allen 496; Smith v. Harrison, 22 Pick. 430; Holcombe v. Tracey, 2 Minn. 241; Turner v. New York, 168 U.S. 90; Osborne v. Lindstrom, 81 N.W. 72; Power v. Kitching, 86 N.W. 737; O'Brien v. Gaslin, 30 N.W. 374; 13 Enc. L (1 Ed.) 696, Note 3. The tax sales alleged to have been made did not interrupt the running of the statute. Griffith v. Smith, 42 N.W. 747; Parsons v. Viets, 9 S.W. 909; Hayes v. Martin, 45 Cal. 559. Payment of taxes may be proved by parol or circumstantial evidence. Swanson v. Mynair, 79 F. 898; Hinchman v. Whetstone, 23 Ill. 100. Full possession of the land, under claim of title, was had by the respective owners or claimants continuously for more than ten years prior to suit, and if the doctrine of tacking is permissable under this statute, respondent is within its terms. Titles and possessions may be tacked where there is privity between the parties, and they all flow from an original source. Brandt v. Ogden, 1 Johns. 156; Jackson v. Thomas, 16 Johns. 293; Winslow v. Newell, 19 Vt. 164; Ward v. Bartholomew, 6 Pick. 410; Overfield v. Christie, 7 Serg. & R. 173; Stettnesche v. Lamb, 26 N.W. 375; Murray v. Romine, 82 N.W. 318; Lantry v. Wolff, 68 N.W. 494; Woodruff v. Roydsen, 58 S.W. 1067; Webber v. Clark, 15 P. 431; McNeely v. Langan, 22 O. St. 32; 1 Am. & Eng. Enc. L. 642.
This action was instituted for the purpose of determining conflicting claims to the real estate described in the complaint, and for the purpose of securing possession of such real estate. The complaint is in the usual form in such actions, and sets up the ownership of the lands by plaintiff and that the defendants are in possession thereof, and claim an estate and interest therein adverse to the plaintiff, and that such claim is without any right, and their possession wrongful. The answer alleges that the defendants, Christopher C .Billings and Rebecca E. Billings are in possession of said premises, and entitled to the possession of the same, under the following facts: That on the 10th day of October, 1884, one William McCardia and Margaret McCardia made and delivered their joint mortgage of the premises described to one Joseph Chapman, which said mortgage was by them duly acknowledged and which was duly recorded in the office of the register of deeds of Pembina county on the 16th day of October, 1884. That default was made in the payment of said mortgage, and that said mortgage was by the said Chapman duly foreclosed and sold under a power of sale contained in said mortgage; and that such foreclosure and sale were conducted in accordance with all the conditions and terms of such power of sale, and in compliance with all the provisions of the statute pertaining to foreclosure of mortgage under powers of sale by advertisement. That one Sarah Chapman was the purchaser of said lands under such foreclosure sale on the 8th day of January, 1886. That she received a deed of said lands from the sheriff of said county after the one year provided by law for a redemption from such sale had expired, and on the 25th day of January, 1887. That she immediately thereafter went into possession of such lands, and remained in possession of the same until the 14th day of January, 1889, when she conveyed the same, by deed of warranty, to one Barnaby, and said Barnaby reconveyed said lands to Sarah Chapman on the 1st day of ...
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