Mears v. Somers Land Co.

• Decision Date: 01 June 1909
• Citation: 18 N.D. 384,121 N.W. 916
• Parties: MEARS et al. v. SOMERS LAND CO. et al.
• Court: North Dakota Supreme Court

18 N.D. 384

121 N.W. 916

MEARS et al.

v.SOMERS LAND CO. et al.

Supreme Court of North Dakota.

June 1, 1909.

Syllabus by the Court.

In an action to quiet title, which action is in the Supreme Court for trial de novo, evidence examined, and held to establish that appellant, S. L. Co., and its grantor were, for more than 10 years immediately prior to the commencement of such action, mortgagees in possession, with the implied knowledge and consent of, and holding adversely to, the fee owners; and, following the rule announced in Nash v. Northwest Land Company, 15 N. D. 566, 108 N. W. 792, it is held that the remedies of such fee owners to recover such possession, or to assert their rights, became barred by the statute of limitations, and such bar operated to divest them of all title, and vest the same in such adverse occupant.

Held, further, that appellant S. L. Co. and its grantor became mortgagees through an equitable assignment of a mortgage on the property as the result of a defective foreclosure by advertisement, at the abortive foreclosure of which such grantor became the purchaser, securing a certificate of sale and sheriff's deed, and thereafter deeding the premises to the S. L. Co. For a period of over 11 1/2 years after such abortive foreclosure sale the fee owners paid no taxes, and exercised no acts of ownership over the property, while during all such time the purchaser and his grantee, the S. L. Co., paid the taxes, and for over 10 years prior to the commencement of this action they in good faith asserted a claim thereto, hostile and adverse to the fee owners, with their implied knowledge and consent, during which time they had such actual possession as, in view of the nature of the property and all the circumstances disclosed by the evidence, was essential to constitute them adverse occupants.

Appeal from District Court, Ward County; E. B. Goss, Judge.

Action by E. Ashley Mears and others against the Somers Land Company and others. Judgment for plaintiffs, and defendants appeal. Reversed, and judgment directed for the Somers Land Company.James Johnson and Guy C. H. Corliss, for appellants. John E. Greene (R. H. Bosard, of counsel), for respondents.

FISK, J.

This is an action to quiet title to certain real property in Ward county. It is conceded that one Smith Wheeler was the owner thereof on and prior to June 20, 1888. Plaintiffs trace their claim of title through mesne conveyances as follows: Quitclaim deed from Wheeler to Ashley E. Mears, Ashley E. Mears to E. Ashley and Margaret B. Mears by inheritance, and the latter parties quitclaimed to C. W. Brauer who in turn quitclaimed to his coplaintiff, T. P. Kulaas, an undivided one-half interest therein. Defendant Somers Land Company claims title through a conveyance from one Russell, whose title depended upon the validity of certain alleged foreclosure proceedings, under a power of sale contained in a mortgage claimed to have been executed and delivered by Wheeler to the bank of Minot and foreclosed by advertisement; the said Russell having acquired a sheriff's deed to the land pursuant to such foreclosure. The entire controversy is due to the fact that the notary public omitted to affix his signature to the certificate of acknowledgment to the said mortgage. Such certificate was filled out, and was complete in all respects, except as above stated, even to the affixing of the notarial seal. The mortgage, together with such defective certificate of acknowledgment, was in fact recorded at length in the office of the register of deeds of Ward county on June 30, 1888. Respondents' main contention is that such foreclosure was a nullity, for the reason that the mortgage was not entitled to record, and hence no title was obtained through the sheriff's deed based on such foreclosure sale. There is a dispute as to what the record discloses regarding certain facts. Respondents contend that there is no proof that Smith Wheeler executed and delivered the mortgage and note in question, but the record discloses that the original mortgage was offered in evidence, and the only objection urged to its introduction in evidence was “that the same is incompetent, for the reason that it appears on the face of the instrument that it was never acknowledged by the grantor, and the record of the instrument can furnish no foundation for foreclosure.” And this same objection was urged to the offer of the note in evidence. Such objection was entirely insufficient to put appellants to their proof as to the execution and delivery of these instruments. The point of the objection is that, because the certificate of acknowledgment was not complete, such mortgage was not entitled to record so as to justify its foreclosure by advertisement. Furthermore, at the commencement of the trial the parties entered into a stipulation which expressly recognized the fact that this mortgage was given by the said Wheeler. The record discloses that later in the trial a controversy arose between counsel as to the genuineness of the signature of Smith Wheeler to the mortgage, and appellants' counsel asked for time in which to furnish proof thereof. Conceding that this had the effect...