Schneller v. Plankinton

• Citation: 98 N.W. 77,12 N.D. 561
• Decision Date: 08 January 1904
• Docket Number: 6731
• Court: United States State Supreme Court of North Dakota

98 N.W. 77

12 N.D. 561

F. B. SCHNELLER v. WILLIAM PLANKINTON, PEHR PETERSON ET AL

No. 6731

Supreme Court of North Dakota

January 8, 1904

Appeal from District Court, Richland county; Lauder, J.

Action by F. B. Schneller against William Plankinton and others. Judgment for plaintiff, and defendant Plankinton appeals.

Reversed.

Judgment vacated, and judgment entered dismissing the action. Appellant recover costs of both courts.

Purcell & Bradley, for appellant.

Actual possession of land consists in exercising acts of dominion over it and in taking the profits of which it is susceptible. Webber v. Clarke, 15 P. 431; Barstow v Newman, 34 Cal. 90; Goodrich v. VanLandigham, 46 Cal. 601; Kelly v. Mack, 49 Cal. 524.

An inclosure is not necessary. Hicks v. Coleman, 25 Cal. 132; Sheldon v. Mull, 7 P. 710. Nor any building thereon, or the occupation such as a stranger would observe in passing. Murray v. Hudson, 32 N.W. 889; Morrison v. Kelley, 74 Am. Dec. 179; Costello v Edson, 46 N.W. 299; Whitaker v. Shooting Club, 60 N.W. 983; Ewing v. Burnet, 11 Pet. 41, 9 L.Ed 624; Fuller v. Elizabeth City, 23 S.E. 922.

A deed issued pursuant to foreclosure proceedings, a judgment or decree, or sale, although such proceedings back of it are void or voidable, affords "color of title." Mason v. Ayres, 73 Ill. 121, 1 Am. & Eng. Enc. of L. (2d Ed.) 817 and note 1; 1 Cyc. of L. 1093, sub. M., note 16; Packard v. Moss, 8 P. 818, 3 Wait. Act. & Def. 17; Brooks v. Bruyn, 35 Ill. 394; La Frombois v. Jackson, 8 Cow. 589. So an unrecorded deed purporting to convey title. Lee v. Polk County Copper Mining Co., 21 How. 493 (U. S.) 16 L.Ed. 203, 62 U.S. 493; Dickinson v. Breeden, 30 Ill. 279; Hanna v. Renfro, 32 Miss. 125; Webber v. Clarke, 15 P. 431; Falls of Neuse Manuf'g Co. v. Brooks, 11 S.E. 456; Orr v. Owens, 27 N.E. 493; Clark v. Clough, 23 A. 526; Grant v. Fowler, 39 N.H. 101; Forest v. Jackson, 56 N.H. 357; Goodman v. Nichols, 23 P. 956; Walker v. Hill, 12 N.E. 387; Hall v. Law, 102 U.S. 461, 26 L.Ed. 217; Tremaine v. Wetherby, 12 N.W. 609; Sands v. Hughes, 53 N.Y. 297; Chandler v. Spear, 22 Vt. 388; Hoys v. Swan, 5 Md. 237; Humphries v. Huffman, 33 Oh. St. 395; Murphy v. Doyle, 33 N.W. 222.

Defendant did not hold as a mortgagee in possession, and the decree should not have been for equitable redemption. Sexton v. Barker, 50 N.E. 109; Mason v. Ayers, 73 Ill. 121; Norris v. Ile, 38 N.E. 762.

Under an executory contract the possession of a vendee is the possession of the vendor. McAuliffe v. Parker, 38 P. 744; Brown v. Huey, 30 N.E. 429; Avent v. Arlington, 10 N.E. 991; Whitney v. Wright, 15 Wend. 171; Briggs v. Prosser, 14 Wend. 227; Brown v. Brown, 11 S.E. 650; Mabary v. Doliarhide, 11 S.W. 611; Beal v. Brooks, 23 Am. Dec. 401; Kruse v. Wilson, 79 Ill. 233; Hale v. Gladfelder, 52 Ill. 91; Valentine v. Cooley, 33 Am. Dec. 166.

When rents and profits are claimed prior to the commencement of the action, the complaint must show plaintiff's title as existing at a prior date and continuing to the commencement of the action. Payne v. Treadwell, 16 Cal. 221; Clark v. Boyreau, 14 Cal. 635; Thompson v. White, 8 How. Pr. 520; 3 Sedgwick on Damages, 912.

The deed, exhibit C, is void under sections 7002 and 3920, Rev. Codes. 3 Am. & Eng. Enc. of L.; Art on Contracts, Par. 49; Galbraith v. Paine, 96 N.W. 258, 12 N.D. 164.

Freerks & Freerks, for respondent.

Defendant claims to have acquired title under section 3491a, Rev. Codes, and that he has been in actual, open, adverse and undisputed possession of the land under color of title for ten years prior to the commencement of this action, and paid all legal taxes levied against the premises during such time. Power v. Kitching, 86 N.W. 737, 88 Am. St. Rep. 691.

Plankinton was never personally in possession, nor did he personally pay any taxes, but claims to have done so by the possession and occupancy of his so-called licensees, Holstrom and Peterson, and that such payment inured to his benefit under section 3491a. There is no proof to show any contract between defendant and Holstrom and Peterson, or that their occupancy was ever ratified.

A mortgagee does not assign a mortgage by executing a deed, as he has no title. Yankton Building and Loan Ass'n v. Dowling, 74 N.W. 438.

The separate possession and payment of taxes by Holstrom and Peterson do not avail under section 3491a. J. B. Streeter, Jr., Co. v. Frederickson et al, 91 N.W. 692, 11 N.D. 300.

Findings must be within the issues made by the pleadings. Morenhout et al. v. Barron, 42 Cal. 591; Marks v. Sayward, 50 Cal. 57; Harkins v. Cooley et al, 58 N.W. 560; Cobb et al. v. Cole, 56 N.W. 828; Arnold v. Angell, 62 N.Y. 508; Brennan v. Bigelow, 8 Kan. 332; Brocker v. Esterley, 12 Kan. 152; Hubberdston Lumber Co. v. Bates, 31 Mich. 158; Sanford v. Thorp, 45 Conn. 242; Gardner v. Case, 111 Ind. 494; Burton v. Morrow, 133 Ind. 221.

Findings of fact not found on any issue made by the pleadings are nullities. Newby v. Meyers, 44 Kan. 477, 24 P. 971.

Findings of the court should be statements of the ultimate facts only and not of the probative facts. Gull River Lumber Co. v. School District No. 38, 1 N.D. 500, 48 N.W. 427; Glascock v. Ashman et al, 52 Cal. 420; Snyder v. Ashworth, 34 Minn. 426, 26 N.W. 233; Conlan v. Grace, 36 Minn. 276, 30 N.W. 880.

Ultimate facts are the facts in issue; probative facts are facts in controversy. Marshall v. Shafter, 32 Cal. 177; Mitchell v. Clinton, 99 Mo. 153.

A finding that "the defendant has a good and perfect title to the demanded premises" supports a judgment for him, whether regarded as a finding of fact or conclusion of law. Frazier v. Crowell, 52 Cal. 399.

Findings of ultimate facts control findings of probative facts. Perry v. Quackenbush, 105 Cal. 299, 38 P. 740; Smith v. James et al, 30 N.E. 902.

OPINION

YOUNG, C. J.

The plaintiff instituted this action to determine adverse claims to eighty acres of agricultural land situated in Richland county. The complaint, which is substantially in the form prescribed by chapter 5, p. 9, of the Laws of 1901, alleges that the plaintiff is the owner in fee simple of the land, and that the defendants claim interests therein adverse to the plaintiff, and prays that said claims be adjudged null and void, and the title to said premises be quieted in the plaintiff as to all of said defendants, and for costs and disbursements. The defendant Plankinton alone answered. His answer alleges title in himself, under section 3491a, Rev. Codes 1899, and sets forth adverse occupancy and payment of taxes for ten years under color of title. He also alleges that he has an unpaid mortgage on the premises for $ 450 and interest. The case was tried to the court without a jury, and resulted in a judgment for plaintiff, quieting title in him as against all liens, claims and demands of the defendants. The defendant appeals from the judgment. Appellant caused a statement of case to be settled, in which he demands a review of the entire case in this court. He also assigns error on the statutory judgment roll.

Counsel for respondent contends that the evidence cannot be reviewed in this court because of the alleged absence from the statement of case of certain papers which he claims constitute a part of the proceedings had at the trial, and that in the absence of such papers the court is without authority to try the case de novo under section 5630, Rev. Codes 1899, and upon this theory made a motion at the hearing to strike out the statement of case and to affirm the judgment. Counsel did not agree at the hearing as to what papers were in the statement, or as to whether the papers alleged to be missing in fact constituted a part of the proceedings held at the trial. The motion was denied without an examination of the record, and the case argued upon the merits; leave being granted to the appellant to cause the statement to be returned to the district court for correction, if necessary. We find it entirely unnecessary to explore the record or to settle these disputed questions for the reason that the error assigned by appellant upon the judgment roll proper is fatal to the judgment, and requires its reversal. As conclusions of law from the facts found, the trial court found "that the plaintiff is entitled to a judgment and decree of this court quieting the title to the premises involved in this action in him, free and clear from all claims, liens, or demands held or claimed to be held by the defendant and all persons claiming or to claim any right, title, interest, estate, lien or demand under or through him, and for his costs and disbursements in this action." The foregoing conclusion is assigned as error. The assignment must be sustained. The facts found by the trial court, so far as they are material to a consideration of the assignment in question, are substantially as follows: On March 7, 1884, Willard M. Davis was the owner of the land in question. On that date he executed and delivered to the defendant William Plankinton, a mortgage thereon for $ 450, and on the same day executed and delivered a mortgage to F. T. Day for $ 45. Thereafter, and on September 13, 1887, a sheriff's deed was issued to F. T. Day under an invalid foreclosure of his mortgage. December 17, 1890, Day deeded to Plankinton. Prior to his deed to Plankinton, Day, through his agents, gave a contract for a deed to one Gust Holmstrom, who went into possession, farmed the land continuously until 1894, and paid taxes for the years 1890, 1892, and 1893. Day paid the taxes for 1891. In 1894 Plankinton made a contract of sale with one Pehr Peterson, whereby he agreed to make, execute, and deliver to said Peterson a good and sufficient warranty deed upon the performance of the conditions of the contract. Peterson entered into...