Sommers v. Wagner
| Decision Date | 06 May 1911 |
| Citation | 131 N.W. 797,21 N.D. 531 |
| Court | North Dakota Supreme Court |
Rehearing denied May 29, 1911.
Appeal from District Court, Rolette county; Cowan, Judge.
Action by George Sommers against C. M. Wagner and others. From a judgment for plaintiff, defendants appeal.
Reversed and action dismissed.
Decree set aside, and plaintiff's action dismissed, with costs.
Fred E Harris, Harris Richardson, and H. C. Kerr, for appellants.
Exception against encumbrances does not except against covenants of warranty. Smith v. Gaub, 19 N.D. 337, 123 N.W. 827; Howells v. Richards, 11 East, 633, 11 Revised Rep 287; Estabrook v. Smith, 6 Gray, 572, 66 Am. Dec. 445; Sandwich Mfg. Co. v. Zellmer, 48 Minn. 408, 51 N.W. 379; Welbon v. Welbon, 109 Mich. 356, 67 N.W. 338; Rooney v. Koenig, 80 Minn. 483, 83 N.W. 399; Weeks v. Grace, 194 Mass. 296, 9 L.R.A.(N.S.) 1092, 80 N.E. 220, 10 A. & E. Ann. Cas. 1077; Bennett v. Keehn, 67 Wis. 154, 30 N.W. 112; Duvall v. Craig, 2 Wheat. 45, 4 L.Ed. 180; King v. Kilbride, 58 Conn. 109, 19 A. 520; Rowe v. Heath, 23 Tex. 614.
Where mortgagor acquires his own mortgage, the assignment thereof inures to the benefit of his covenantees. Smith v. Gaub, 19 N.D. 337, 123 N.W. 827; Merritt v. Byers, 46 Minn. 74, 48 N.W. 417; Sandwich Mfg. Co. v. Zellmer, 48 Minn. 408, 51 N.W. 379; Butler v. Seward, 10 Allen, 466; Mickles v. Townsend, 18 N.Y. 575; Jones, Mortg. 6th ed. § 864; Wadsworth v. Williams, 100 Mass. 126.
Payment of mortgage by one bound to pay discharges it. Mickles v. Townsend, 18 N.Y. 575; Kelley v. Jenness, 50 Me. 455, 79 Am. Dec. 623; 20 Am. & Eng. Enc. Law, 2d ed. 1060; Brown v. Lapham, 3 Cush. 551; Putnam v. Collamore, 120 Mass. 454; Frey v. Vanderhoof, 15 Wis. 398; Shirk v. Whitten, 131 Ind. 455, 31 N.E. 87; Caley v. Morgan, 114 Ind. 350, 16 N.E. 790; Burnham v. Dorr, 72 Me. 198; Clay v. Banks, 71 Ga. 363; Butler v. Seward, 10 Allen, 466; Comstock v. Smith, 13 Pick. 119, 23 Am. Dec. 670; Trull v. Eastman, 3 Met. 124, 37 Am. Dec. 126; McCabe v. Swap, 14 Allen, 188; Carlton v. Jackson, 121 Mass. 592; Kneeland v. Moore, 138 Mass. 198; Northwestern Nat. Bank v. Stone, 97 Iowa 183, 66 N.W. 91; Dollar Sav. Bank v. Burns, 87 Pa. 491; Converse v. Cook, 8 Vt. 164; Zimpleman v. Veeder, 98 Ill. 613.
Covenants in a mortgage are of the same effect as those in a deed. Butler v. Seward, 10 Allen, 466; Jones, Mortg. 6th ed. § 864; Sandwich Mfg. Co. v. Zellmer, 48 Minn. 408, 51 N.W. 379; Yerkes v. Hadley, 5 Dak. 324, 2 L.R.A. 363, 40 N.W. 340; Iowa Loan & T. Co. v. King, 58 Iowa 598, 12 N.W. 595; McManness v. Paxson, 37 F. 296; Van Rensselaer v. Kearney, 11 How. 297, 13 L.Ed. 703.
A mortgage once paid cannot be revived. Luce v. American Mortg. & Invest. Co. 6 Dak. 122, 50 N.W. 621; Mead v. York, 6 N.Y. 449, 57 Am. Dec. 467; Dick v. Moon, 26 Minn. 309, 4 N.W. 39; Thompson v. George, 86 Ky. 311, 5 S.W. 760; Johnson v. Anderson, 30 Ark. 745; Spencer v. Fredendall, 15 Wis. 666; Merrill v. Chase, 3 Allen, 339.
Conveyance with grantee's name blank is void. Rev. Codes 1905, §§ 5039, 4870; Merrill v. Luce, 6 S.D. 354, 55 Am. St. Rep. 844, 61 N.W. 43; Henniges v. Paschke, 9 N.D. 489, 81 Am. St. Rep. 588, 84 N.W. 350; Burns v. Lynde, 6 Allen, 305; Shep. Touch. 54; Hibblewhite v. McMorine, 6 Mees. & W. 200, 9 L. J. Exch. N. S. 217, 4 Jur. 769; 1 Devlin, Deeds, § 456; Lady Superior of Cong. Nunnery v. McNamara, 3 Barb. Ch. 375, 49 Am. Dec. 184; Curtis v. Cutler, 37 L.R.A. 737, 22 C. C. A. 16, 40 U.S. App. 233, 76 F. 16.
Le Sueur & Bradford, for respondent.
This is an appeal from the district court of Rolette county from a judgment for foreclosure of a mortgage entered in favor of plaintiff and against defendants and appellants. Briefly recited, the facts are that C. M. Wagner owned a quarter section of land of the value of at least $ 2,000, which he and wife had mortgaged to one McWilliams, securing the payment of $ 400, due January 1, 1904, as evidenced by a promissory note executed by Wagner and wife to McWilliams, and which mortgage was duly recorded April 17, 1903, in the office of the register of deeds of said county; that thereafter Wagner transferred the land in question to his wife by quitclaim deed duly recorded. After this, C. M. Wagner, indebted to the amount of $ 1,400 to Foley Brothers & Kelly, a corporation, had his wife, Mary E. Wagner, execute and deliver her warranty deed of said land to said corporation as security for the payment of her husband's debt to such corporation; said deed recited a consideration of $ 1,200, and was in form a warranty deed, containing all the covenants of warranty, but in its covenant against encumbrances contained the exception "that the same is free from all encumbrances except a mortgage given to McWilliams for $ 400." The deed did not provide that the grantee should assume the mortgage encumbrance. This deed was recorded January 21, 1904. Thereafter, on June 16, 1904, for the purpose of satisfying said mortgage debt, Wagner paid the $ 400 mortgage in full, with money given him by his wife of her funds; whereupon the mortgagee, McWilliams, delivered Wagner the $ 400 note and a written assignment in blank of the mortgage, which assignment was duly acknowledged. The assignment was supposed by Wagner at the time it was received to have been a satisfaction, and under such supposition, it, with the note, was placed among Wagner's papers, he informing his wife that he had paid and satisfied the mortgage. In January following, an agent of Sommers, plaintiff, demanded of Wagner the payment of $ 500 owing by him to Sommers, or that the debt be secured, and during the conversation as to Wagner's ability to pay or secure, plaintiff's agent learned the foregoing facts recited, and was delivered the $ 400 note with the assignment of the mortgage still in blank and unrecorded. The agent at the time of the receipt of these papers was informed by Wagner that he had paid the mortgage.
Regarding the reason for the delivery of the assignment and note, the testimony of the agent and of Wagner are in conflict, the former claiming Wagner to have informed him that the reason he did not record the assignment was that the deed from Wagner to the corporation was in fact but a mortgage, and he, Wagner, did not want to satisfy the prior $ 400 mortgage, because the corporation had enough security for what he was owing them. Wagner's testimony is that he delivered the assignment and note, that the plaintiff might negotiate with the corporation and have it either take up the note and assignment, paying plaintiff's claim, or otherwise adjust the matter between them, so that the farm would be satisfactory security to both for their claims. In any event, at that time Wagner delivered plaintiff's agent a written order for notes held by defendant corporation as collateral security for the debt for which the warranty deed was also security; and Wagner further gave plaintiff's agent a written order to defendant corporation to assign to plaintiff any equity he might have in the land after payment of his debt to such corporation. Defendant corporation refused to deliver the notes alleged to be held as collateral security, or in any wise to recognize plaintiff's claim to the land, claiming to be the owner in fee of the land. But defendant Wagner denies that he gave the note and assignment mortgage to the plaintiff as collateral security to them, alleging that he, instead, delivered possession of it to them, that they might negotiate some settlement between them and defendant corporation, with the evident purpose of reserving to himself the right to ratify or disapprove of any such attempted settlement. After the delivery of the assignment and note to plaintiff, the name of George Sommers was, unauthorized by Wagner or his wife, inserted in the assignment, and this action begun for foreclosure of the mortgage as a first mortgage on the land, prior to the claims of defendant corporation and the wife grantee from her husband by quitclaim deed. In the complaint plaintiff pleads the assignment of the $ 400 mortgage to him by the mortgagee; that the same is past due, and the usual statutory recitals in foreclosure actions, and asks judgment of foreclosure against such property to collect the debt.
To the complaint of plaintiff, defendants Wagner and wife answered, pleading payment by them of the mortgage attempted to be foreclosed, denying ownership by defendant corporation of the tract, and asking a dismissal of the plaintiff's action, and that the absolute title in fee to the land be adjudged to be in them. To the plaintiff's complaint, defendant corporation answers, claiming to be the owner of the land; reciting the deed to them from Mrs. Wagner, and that said deed warranted title, and that the land was free from all encumbrances excepting the mortgage attempted to be foreclosed, alleging it to have been paid, and asking judgment that the court adjudge and determine the interest and claim of the defendant in and to said land under said deed; that the same be adjudged prior to any claim of the plaintiff and that the mortgage attempted to be foreclosed be discharged of record as paid.
There is little conflict in the testimony. The wife testifies that her husband usually transacted her business for her; that she authorized her husband to pay and satisfy the mortgage, and supposed he had done so, and she at all times claimed the mortgage as paid and satisfied; that the husband never had any written authority of any kind from her in the matter, and she never authorized him to turn over the note and assignment to the plaintiff; although, after Wagner had done so, he...
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