Pratt v. Beiseker
| Decision Date | 21 March 1908 |
| Citation | 115 N.W. 835,17 N.D. 243 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pierce county; Cowan, J.
Action by S. A. Pratt against T. L. Beiseker, judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
Burke & Middaugh and Bessessen & Berry, for appellant.
John O Hanchett, for respondent.
This is an action to determine adverse claims to 160 acres of land situated in Pierce county. Both parties claim title to the land through one Van Gundy, who derived his title thereto from the United States under the homestead laws. The plaintiff claims his title under a deed from said Van Gundy and defendant claims his title under a deed from one Mitchell, who bid in the land at a foreclosure sale by advertisement of a mortgage given by said Van Gundy to said Mitchell, who received a sheriff's deed of the land after the year for a redemption from the sale had expired. The mortgage was executed and delivered on August 31, 1900, and the sale under the foreclosure was made on April 14, 1903. Mitchell conveyed the land by quitclaim deed to the defendant Beiseker on June 10, 1904. The deed to plaintiff from Van Gundy was executed and delivered on December 28, 1901. The price paid by the plaintiff was the sum of $ 1,400, and the deed was given subject to the mortgages hereafter to be mentioned. The plaintiff has been in possession of the land since his purchase thereof from Van Gundy, and has farmed it each year. The ownership of the land depends upon the validity of the foreclosure of the Mitchell mortgage. That foreclosure is attacked by the plaintiff, who claims that it is void. The facts in relation to the giving and foreclosure of the mortgage are the following: In the summer of 1900 Van Gundy applied to the German State Bank of Harvey for a loan of $ 500 upon the land in question. The defendant Beiseker is the president of said bank. The application for the loan was accepted, and mortgages were thereafter executed to secure said sum and interest. Two mortgages were given--one to the defendant Beiseker and his partner Davidson for $ 500 and the other to the defendant Mitchell for $ 200, the former to become due in 10 years from date. The $ 500 mortgage and the notes secured by it drew interest at 8 per cent. per annum and the $ 200 note and mortgage were given for the aggregate interest on the $ 500 loan for 10 years at 4 per cent. per annum. The mortgagor was therefore paying 12 per cent interest on the $ 500 loan. It is clearly proven that no consideration whatever was paid by Mitchell to Van Gundy on the $ 200 notes and mortgage, and that they represented what was in reality the difference between 12 per cent and 8 per cent during the term of 10 years, and it was taken as a commission mortgage. The $ 200 mortgage secured three notes--one for $ 100, due November 1, 1901; one for $ 50, due November 1, 1905; and one for $ 50, due November 1, 1906. These notes were to draw interest at 12 per cent. per annum after maturity. The foreclosure was made on the theory that there was a default in the payment of the $ 100 note. The notice of foreclosure stated the sum due on the mortgage to be $ 217.40, representing the principal sum named in the mortgage, and 12 per cent. interest on the $ 100 note after its maturity. The mortgage provided that in case of default in the payment of any one of these notes the mortgagor had the option to declare the whole sum due, which was done in this case. Whether the foreclosure had any validity, therefore, depends on a question of fact, and that question is, was there a default in the payment of the $ 100 note on November 1, 1901, when it fell due? The plaintiff claims that the note was paid by the mortgagor in December, 1901, when he settled with...
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