McCoy v. Davis

• Decision Date: 20 October 1917
• Citation: 164 N.W. 951,38 N.D. 328
• Parties: McCOY et al. v. DAVIS et al.
• Court: North Dakota Supreme Court

38 N.D. 328

164 N.W. 951

McCOY et al.

v.DAVIS et al.

Supreme Court of North Dakota.

Oct. 20, 1917.

Syllabus by the Court.

Under section 5594, Comp. Laws 1913, an unrecorded deed is void as against a judgment lawfully obtained against the person in whose name the title to real property appears of record; and the certificate of sale issued to a purchaser upon a sale legally held under an execution issued upon such judgment is valid as against an unrecorded deed, of which the judgment creditor and purchaser had no notice.

Under the stipulated facts in this case, it is held that an unrecorded deed held by the plaintiffs is void as against a judgment lawfully obtained by the defendants against the then record owner of the premises involved, and the certificate of sale issued to them upon a sale under the execution issued upon the judgment.

As a general rule the constitutionality of a statute cannot be first raised on appeal in a civil action.

A court will pass upon a constitutional question only when such question is properly before it and necessarily involved.

Courts should not of their own volition go outside of the record and search for reasons for annulling a statute, nor should they conjure up theories to overturn and overthrow it.

Additional Syllabus by Editorial Staff.

In action to set aside a certificate of sale issued by the sheriff to defendants for land purchased by them upon an execution sale, a motion on appeal to file an amended complaint, and to permit plaintiff to introduce certain evidence, and to remand the cause for the taking of such evidence, would be denied on appeal, where no application was made to the trial court to reopen the case to enable plaintiff to introduce further evidence, and where an affidavit in support of the motion showed no reason for a failure to make such application, and where there was no contention that the proposed evidence was not known to plaintiff and to his attorney before the cause was submitted in the court below.

Appeal from District Court, Stark County; Crawford, Judge.

Action by John R. McCoy and another against H. A. Davis and J. W. Bowen, copartners as Davis & Bowen. Judgment for defendants, and plaintiffs appeal, and also move to file an amended complaint. Motion denied, and judgment affirmed.

Robinson, J., dissenting.H. C. Berry and J. P. Cain, both of Dickinson, for appellants. Murtha & Sturgeon, of Dickinson, for respondents.

CHRISTIANSON, J.

This is an action to set aside a certificate of sale issued by the sheriff of Stark county to the defendants for a tract of land purchased by them upon an execution sale. The case was submitted upon a stipulated statement of facts. The material facts are:

On August 30, 1909, Robert Connor became the owner in fee of the premises involved herein by virtue of a patent issued to him on that day by the United States government. The patent was recorded in the office of the register of deeds on May 11, 1910, and the record title to the premises remained in said Robert Connor until November 5, 1915. The defendants obtained a judgment against said Robert Connor, which was duly docketed in the office of the clerk of the district court of Stark county on October 1, 1915. Execution was issued upon the judgment, and on October 20, 1915, the sheriff duly levied upon the premises involved herein, and caused to be filed for record in the office of the register of deeds of said county a notice of levy as provided by law. The sheriff advertised the premises for sale, and on November 29, 1915, sold the same to the defendants for the full amount due upon the judgment, including interest and costs. The levy, notice of sale, and sale were in all things made, given, and conducted according to law. The proper certificate of sale was issued to the defendants, and recorded in the office of the register of deeds of said county on November 30, 1915. No redemption was made. Robert Connor was a single man. The land was vacant and wholly unoccupied at the time defendants commenced the action on which their judgment was obtained, and so remained until after the execution sale. On August 7, 1915, the said Robert Connor executed and delivered to the plaintiffs a warranty deed for said premises, but the deed was not recorded until November 5, 1915, and at the time of the levy under the execution “the apparent title in and to said premises, as shown of record in the office of the register of deeds of said Stark county, was in said Robert Connor.”

Upon these facts, as stipulated, the trial court made findings of fact in favor of the defendants, sustaining the validity of the said certificate of execution sale and the title based thereon. The plaintiffs appeal from the judgment and assail the correctness of the conclusions of law drawn by the trial court from the facts found.

[1][2] Our statute provides:

“Every conveyance by deed, mortgage or otherwise, of real estate within this state, shall be recorded in the office of the register of deeds of the county where such real estate is situated, and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any part or portion thereof, whose conveyance, whether in the form of a warranty deed or deed of bargain and sale, deed of quitclaim and release, of the form in common use or otherwise, is first duly recorded, or as against any attachment levied thereon or any judgment lawfully obtained, at the suit of any party, against the person in whose name the title to such land appears of record, prior to the recording of such conveyance.” Section 5594, C. L. 1913.

This statute clearly places judgments on par with deeds and mortgages. It makes every unrecorded conveyance “by deed, mortgage or otherwise” void as against the lien of a judgment lawfully obtained and docketed against the record owner, by a judgment creditor who has no actual knowledge or notice of the unrecorded conveyance; and title based upon a sale legally held under an execution issued upon such judgment is valid as against an unrecorded deed of which the judgment creditor and purchaser had no notice. Not only do the plain words of the statute say so, but this court has several times declared that to be the meaning and effect of the statute. See Investment Co. v. Nordhagen, 18 N. D. 517, 123 N. W. 390;Nordhagen v. Investment Co., 21 N. D. 25, 129 N. W. 1024;Ildvedsen v. First State Bank, 24 N. D. 227, 139 N. W. 105;Mott v. Holbrook, 28 N. D. 251, 148 N. W. 1061.

Plaintiff also contends that the statute is unconstitutional. This question was not raised in the court below, nor has appellant supported this contention to any extent by argument, or pointed out with any degree of particularity wherein it is claimed that the statute violates any provision of either the state or federal Constitution. It is a general rule, supported by the unanimous weight of authority, that the constitutionality of a statute cannot be first questioned on appeal in a civil action. 3 C. J. § 608, p. 710; 6 R. C. L. p. 95, § 96. It is equally well settled that he who declares a statute to be unconstitutional has the burden of showing that such constitutionality exists, and should point to the particular constitutional provision violated. State ex rel. Linde v. Taylor, 33 N. D. 76, 86, 156 N. W. 561.

The question of constitutionality has, however, been raised by a dissenting member of this court. It is contended by such member: (1) That the statute was not passed in a constitutional manner; and (2) that it is in conflict with the Fourteenth Amendment to the Constitution of the United States, for the reason that it deprives persons of property without due process of law.

[3][4] While it is the duty of the judiciary, when required in the regular course of judicial proceedings, to declare void any act which violates the Constitution, it will not do to make of the courts “a sort of superior upper house to consider and pass, in general, and particular as well, upon legislative enactments.” Wadhams Oil Co. v. Tracy, 141 Wis. 150, 123 N. W. 785, 18 Ann. Cas. 779. The power to revoke or repeal a statute is not judicial in its character, and the courts ought not to pass on the question of constitutionality of a statute abstractly, but only as it applies and is sought to be enforced in the government of a particular case before the court. 6 R. C. L. p. 90. A statute is presumed to be constitutional. This presumption becomes conclusive, unless it is clearly shown that the enactment is prohibited by the Constitution of the state or of the United States. State ex rel. Linde v. Taylor, 33 N. D. 76, 85, 156 N. W. 561.

The statute under consideration has been authenticated by, and has received the approval of, two of the three great co-ordinate departments of the state government. It is well to remember that the responsibility of upholding the Constitution does not rest upon the courts alone; that the members of the Legislature and the Governor are required to take an oath to support the Constitution; and that the presumption is that they have obeyed this oath, and observed the constitutional requirements. 6 R. C. L. p. 101.

“Courts will not assume to pass upon constitutional questions unless properly before them, and the constitutionality of a statute will not be considered and determined by the courts as a hypothetical question. It is only when a decision on its validity is necessary to the determination of the cause that the same will be made, and not then at the instance of a stranger, but only on the complaint of those with the requisite interest. These principles have been recognized by the Supreme Court of the United States. That tribunal has announced that it rigidly adheres to the rule never to anticipate a question of constitutional law in advance of the necessity of deciding it, never to formulate a rule of constitutional law broader than is required by...