Robertson v. Brown
| Decision Date | 27 January 1947 |
| Docket Number | 7037. |
| Citation | 25 N.W.2d 781,75 N.D. 109 |
| Parties | ROBERTSON v. BROWN et al. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. A deceased person does not have an actual legal existence and is not such a legal entity as is necessary on the part of a party plaintiff in an action.
2. The transfer of a promissory note carries with it the mortgage securing the note though no valid assignment of the mortgage is executed and delivered.
3. A contract valid on its face executed by a county for the sale of tax deed property under the provisions of Ch.286 Sess.Laws N.D.1941, is sufficient to constitute color of title and will support a claim of adverse possession on the part of the purchaser when other elements of possession are shown.
4. A deed by a grantor who has been out of possession for more than a year prior to the execution thereof is champertous and void as against a purchaser of tax deed property from a county under the provisions of Ch.286, Sess.Laws N.D.1941 where such purchaser was in possession when the deed was given, regardless of the validity of the proceedings taken by county to terminate the period of redemption from tax sale.
5. In an action to quiet title to real property the plaintiff must rely on the strength of his own title.
6. Where a defendant in an action to quiet title alleges that he is the owner of the land and prays that title be quieted in him, he assumes the burden of proving his allegations and in effect becomes a party plaintiff.
7. The inclusion, in the amount required to redeem, of taxes interest and penalties represented by tax sales certificates issued or deemed to have been issued within three years prior to the notice of expiration of redemption renders the tax deed proceedings void.
8. Where one who seeks to be substituted as party plaintiff in an action to quiet title makes a deposit pursuant to the provisions of Sec. 21, Ch. 286, Sess.Laws N.D.1941, and later withdraws his motion for substitution, neither of the parties continuing in the litigation may claim his deposit.
Paul Campbell, of Minot, for plaintiff and appellant.
C A. Waldron, of Minot, for defendants and respondents.
The plaintiff, Andrew Robertson, commenced this action on February 7, 1944, to quiet title to a quarter section of land in McHenry County. The defendants answered setting forth that the defendant F. Cecil Brown is the son and tenant of F. C. Brown who claims to be the owner of the premises by virtue of a deed from McHenry County. They deny that the plaintiff is the owner of the premises and ask that title thereto be quieted in F. C. Brown as to the claims of the plaintiff. During the course of various hearings and proceedings, a motion was made to substitute one G. R. Van Sickle as plaintiff. A hearing on this motion was held in connection with the trial on the merits. The motion for substitution was withdrawn after the hearing and a motion to substitute J. R. Carley was made. After the submission of further evidence the latter motion was denied and Andrew Robertson remains as plaintiff in the action. The appeal is from the judgment only and the sole issue is whether the conclusions of law and judgment are supported by the court's findings of fact.
The findings of fact disclose the following with respect to the title and interest in the land claimed by the plaintiff. On September 5, 1906, the United States issued a patent to William Jordon who on May 5, 1916, conveyed by warranty deed to Ray S. Dutton. Ray S. Dutton and wife conveyed the premises by warranty deed to H. H. Bergh on May 26, 1916, who on August 18, 1919 conveyed by warranty deed to A. I. Hunter and J. R. Carley. All of the foregoing deeds were duly recorded. On June 10, 1942, J. R. Carley gave to Andrew Robertson, the plaintiff herein, a quitclaim deed of all right, title, interest and estate in and to the property. This deed was never recorded and was produced and offered in evidence at the trial by G. R. Van Sickle. On February 15, 1945, Andrew Robertson delivered to G. R. Van Sickle a quitclaim deed in blank, purporting to convey all right, title, interest, and estate of the grantor in and to the premises. This deed was never recorded and was produced and offered in evidence at the trial by Van Sickle. A. I. Hunter has been dead for many years. J. R. Carley died February 20, 1944.
It further appears that on May 9, 1916, Ray S. Dutton, the then owner and possessor of the premises, executed a mortgage thereon, in which his wife joined, to T. L. Beiseker to secure the payment of $1,500. This mortgage, through various duly recorded assignments, reached The First National Bank of Grand Forks, North Dakota. On April 15, 1942, the receiver of the Bank sold the mortgage and notes secured thereby to Andrew Robertson and on May 8, 1942, executed an assignment in writing to Robertson, which was never recorded. On February 27, 1945, Robertson sold and assigned the note and mortgage to G. R. Van Sickle and delivered to him an assignment in which the name of the assignee was left blank. This instrument was never recorded but was produced and offered in evidence at the trial by Van Sickle.
At the time of the trial on April 9, 1945, G. R. Van Sickle, on motion of the defendant and under the order and direction of the court, deposited with the Clerk of the District Court the sum of $250 under the provisions of Ch. 286, Sess.Laws N.D.1941. The disposition of this deposit is one of the matters of controversy in this appeal.
The title claimed by the defendants is based on these facts. The premises were sold to McHenry County at tax sale on December 9, 1930, for unpaid 1929 taxes. No taxes were paid on the land for subsequent years up to and including 1936. On January 21, 1938, the county auditor issued a notice of expiration of period of redemption directed to A. I. Hunter and J. R. Carley as the record title owners of the property. The notice contained a description of the land and also a statement of the amount required to redeem, which was set forth in one lump sum including taxes, penalty and interest for the years 1930 to 1936, inclusive. Prior to 1939 A. I. Hunter and J. R. Carley abandoned the premises and made no attempt to redeem. McHenry County took possession of the premises after the period of redemption, as set forth in the notice, had expired and collected payments from the United States Government under the Soil Restoration Program for 1939, 1940 and 1941. It also rented some of the land for grazing purposes in 1941 and 1942.
Pursuant to the provisions of Ch. 286, Sess.Laws N.D.1941, the land was appraised at $240. In November, 1941, the property was offered for sale to the highest bidder but was not sold. On May 15, 1942, it was sold to F. C. Brown by McHenry County at private sale on contract for $240. Brown immediately entered into possession. On April 9, 1945, Brown paid up the balance due on his contract and obtained a deed from McHenry County. The defendants have remained in possession of the premises since May 15, 1942.
It is necessary that we determine who is the plaintiff upon the appeal of this action and whether the court erred in not making a substitution. In his preliminary statement to the findings of fact the trial court says that:
A similar statement is also embraced in the trial court's final memorandum opinion. Thus it is definitely established that the motion to substitute G. R. Van Sickle as plaintiff was withdrawn. The motion to substitute the name of J. R. Carley was probably made upon the theory that the deed from Carley to Andrew Robertson was champertous and void against parties in possession at the time of its execution under the provisions of Sec. 12-1714, R.C.N.D.1943, as construed in Galbraith v. Payne, 12 N.D. 164, 96 N.W. 258, and Burke v. Scharf, 19 N.D. 227, 124 N.W. 79. In Galbraith v. Payne, supra, it is stated in paragraphs 2 and 3 of the syllabus:
'2. Section 7002, Rev.Codes, makes it a misdemeanor for any person to convey any pretended title to land, unless the grantor has been in possession or taken rent for the space of a year prior thereto. A deed executed in violation of this section is void, but its invalidity extends only to the party in adverse possession claiming title. As between the grantor and grantee and all other persons, it is valid.
'3. The grantee under a deed which is invalid under the above section may not maintain an action in his own name against the adverse claimant, because, as to the latter, his deed is invalid. An action may be maintained against such claimant however, in the name of the grantor for the grantee's...
To continue reading
Request your trial