Sox v. Miracle

Citation160 N.W. 716,35 N.D. 458
PartiesSOX v. MIRACLE et al.
Decision Date28 December 1916
CourtUnited States State Supreme Court of North Dakota
OPINION TEXT STARTS HERE
Syllabus by the Court.

An executory land contract for the purchase of school lands from the state of North Dakota, although technically speaking not real property, must, under the provisions of section 300 to 335, Comp. Laws 1913, be levied upon and sold by a creditor of the vendee as such.

Appeal from District Court, La Moure County; J. A. Coffey, Judge.

Action by Herman E. Sox against W. W. Miracle and others. From a judgment for plaintiff and defendant M. W. Miracle, defendant Dodson, Fisher, Brockman Company appeals. Reversed and remanded, with directions.Henry G. Middaugh and Rollo F. Hunt, both of Devils Lake, for appellant. Davis & Warren, of La Moure, for respondent Sox. Engerud, Holt & Frame, of Fargo, for respondent M. W. Miracle.

BRUCE, J.

This is an action to have an assignment of a school land contract declared a mortgage and for the foreclosure of the same. The controversy, however, is between the assignor or mortgagor, M. W. Miracle, and his assignee, the plaintiff, Herman E. Sox, and the defendant Dodson, Fisher, Brockman Company, which claims under an alleged prior attachment.

On November 22, 1905, the certain school land in controversy was sold by the state of North Dakota to one James E. Brady under the usual executory contract for the sale of school lands. On April 25, 1909, Brady assigned this contract to the defendant W. W. Miracle, who thereupon went into the possession of the premises and remained in the actual, open, and notorious possession thereof until after the levy of the attachment hereinafter mentioned. On January 8, 1910, this assignment was presented to the county auditor of La Moure county, who indorsed thereon, “Taxes paid and transfer entered this 8th day of January, 1910.” On January 21, 1910, this assignment was approved by the Board of University and School Lands.

On December 31, 1909, the defendant W. W. Miracle executed and delivered a promissory note for $1,000, with interest at 12 per cent. until paid, to the plaintiff, Herman E. Sox, and to secure the same, and on the said date, assigned to the said plaintiff, Herman E. Sox, the certain school section of land. This assignment was in all essentials a mortgage and provided that W. W. Miracle should pay the taxes, and, in case of his nonpayment of the interest and taxes, the plaintiff might pay the same, and in which event such payments would draw 12 per cent. interest. This assignment, however, was not presented to the county auditor for entry until July 9, 1913, nor approved by the Board of University and School Lands until July 14, 1913, nor recorded with the register of deeds until August 22, 1913.

It is this note of $1,898.34 given by M. W. Miracle to Herman E. Sox which is sued upon in the action before us, and the lien created by which is sought to be foreclosed. The right of this foreclosure seems to be unquestioned, as the defendant M. W. Miracle defaulted, not only in the payment of taxes, but in the payment of interest. Prior to the beginning of the action, however, but after the assignment by M. W. Miracle to the plaintiff, Sox, or the execution of what to all intents and purposes was a mortgage by M. W. Miracle and W. W. Miracle to the said Herman E. Sox, and on the 25th day of April, 1911, the defendant Dodson, Fisher, Brockman Company sued the defendant W. W. Miracle on an account, and on said day and in support of said suit attempted to levy an attachment upon said land; said action coming to judgment and an execution being issued on the 15th day of March, 1913, against the said W. W. Miracle and delivered to the sheriff, who made a return thereon of no personal property found, and then, and on the 17th day of March, attempted to levy the same on the school land in question, and on the 17th day of March filed his notice of levy in the office of the register of deeds in and for La Moure county, and later, and on the 25th day of April, 1913, made a purported sale of said land, at which the defendant Dodson, Fisher, Brockman Company was the purchaser, and issued to the said Dodson, Fisher, Brockman Company a sheriff's certificate of sale.

The main question in controversy is the validity of these attachment proceedings and of this sheriff's sale.

The trial court found them to be void and entered judgment for the foreclosure of the mortgage lien of the plaintiff, Herman E. Sox, and it is from this judgment that the defendant Dodson, Fisher, Brockman Company appeals and asks for a trial de novo.

Later and on the 9th day of March, 1910, the defendant W. W. Miracle gave to the plaintiff, Herman E. Sox, another note for $500, also taking security on the school section in question. When the said notes became due, the defendant W. W. Miracle was unable to pay the same, and on the 1st day of April, 1912, he and his wife, Maggie Miracle, entered into an agreement with the defendant M. W. Miracle, by which the said M. W. Miracle agreed to assume the payment of said notes, and, in consideration of such assumption, the said W. W. Miracle, on the said 1st day of April, 1912, transferred to said M. W. Miracle all his interest in the school land contract. On or about the same date and in furtherance of this agreement the defendant M. W. Miracle executed and delivered to the plaintiff, Herman E. Sox, a promissory note for $1,898.34, being the amount due on the notes of $1,000 and $500 before referred to and given by W. W. Miracle, said note being payable on the 1st day of November, 1912, and drawing interest at 12 per. cent.; it being also agreed by the said contract that the land in question should stand and be retained by the plaintiff, Herman E. Sox, as security for the payment of this note as had before been agreed upon by the defendant W. W. Miracle and the plaintiff, Herman E. Sox.

Stated another way, the crucial question is whether the defendant Dodson, Fisher, Brockman Company acquired rights by their levy under their attachment against the property in question superior to the claims of Sox and M. W. Miracle. Sox claims under an assignment from W. W. Miracle bearing date December 31, 1909, but not presented to the county auditor for entry until July 9, 1913, and not approved by the Board of University and School Lands until July 14, 1913, and not recorded with the register of deeds until August 22, 1913. M. W. Miracle claims under an assignment from W. W. Miracle and wife, dated April 1, 1912. The attachment was levied on May 25, 1911.

In the attachment proceedings the interest of W. W. Miracle under the school land contract was levied upon and treated as real property belonging to said W. W. Miracle.

Practically the whole controversy revolves around the conclusion of the trial court that the levy under the attachment was void. It is claimed by the plaintiffs and respondents, and no doubt was held by the trial court, that W. W. Miracle's interest under the contract was not an interest in the land, and hence could not be levied upon in the manner provided by law for a levy on real property. Section 7547 provides how attachments may be levied. Subdivision 1 of the section relates to real property, and subdivision 4 to personal property. Subdivision 1 provides that:

“A levy under a warrant of attachment must be made as follows: (1) Upon real property, by the sheriff's filing with the register of deeds of the county, in which the property is situated, a notice of the attachment subscribed by him, stating the names of the parties to the action, the amount of the plaintiff's claim as stated in the warrant and a description of the property levied upon, which notice must be recorded and indexed by the register of deeds in like manner and in the same book as a notice of the pendency of an action.”

Subdivision 2 provides for a somewhat similar method in the case of “personal property which by reason of its bulk or other cause cannot be immediately removed, by the sheriff's filing with the register of deeds a notice of the same kind as described in subdivision one of this section,” and upon “range stock.”

Subdivision 3 provides for the levy on personal property which is capable of manual delivery, and subdivision 4 provides for the levy:

“Upon other personal property by leaving a copy of the warrant and a notice showing the property attached with the person holding the same; or, if it consists of a demand other than as specified in the last subdivision, with the person against whom it exists.”

It is conceded by the appellants that the attachment creditor in the case at bar proceeded under subdivision 1 by filing a notice of levy with the register of deeds and by serving a copy of the warrant and of the notice of levy on the occupant. The respondents contend that this attempted levy was wholly ineffective to create a lien because the defendant W. W. Miracle, having only an executory contract of purchase, was not the owner of real property within the meaning of those words as used in section 7547, subd. 1.

The contention of the defendant and appellant Dodson, Fisher, Brockman Company is that the interest was real estate and was properly levied upon as such. It also maintains that, even if not technically real estate, the statutes which specifically deal with school land contracts provide that the levy shall be made as if it were.

It calls attention to section 314, Compiled Laws of 1913, which provides:

“Contracts of purchase, issued pursuant to the provisions of law, entitle the purchaser, his heirs or assigns, to the posssession of the lands therein described, to maintain actions for injuries done to the same, or any action or proceeding to recover possession thereof, unless such contract has become void by forfeiture; and all contracts of purchase in force may be recorded in the same manner that deeds of conveyance are authorized to be recorded.”

It calls attention to the fact that...

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6 cases
  • Noss v. Hagen
    • United States
    • United States State Supreme Court of North Dakota
    • January 8, 1979
    ...philosophy. Wisconsin Tel. Co. v. City of Milwaukee, 271 N.W.2d 362, 367 (Wis.1978). See other definitions of terms in Sox v. Miracle, 35 N.D. 458, 160 N.W. 716 (1916).2 See 4 Summers, Oil and Gas, § 781 et seq., ...
  • State v. Towner County
    • United States
    • United States State Supreme Court of North Dakota
    • December 13, 1938
    ...... levied upon or attached in an action to recover a debt, and. the purchaser at a sale under such proceedings obtained. merely the interest of the owner of the contract. . .          The law. announced in Sox v. Miracle, 35 N.D. 459, 472, 477,. 160 N.W. 716, 720, and School Dist. v. Hefta, 35. N.D. 637, 640, 160 N.W. 1005, 1006, is not in conflict with. the rule laid down here. These cases involved the. relationships between the purchaser and those claiming under. him. The Constitution clearly recognizes ......
  • State v. Towner Cnty.
    • United States
    • United States State Supreme Court of North Dakota
    • December 13, 1938
    ...at a sale under such proceedings obtained merely the interest of the owner of the contract. The law announced in Sox v. Miracle et al., 35 N.D. 458, 472, 477, 160 N.W. 716, 720, and School District No. 109 v. Hefta, 35 N.D. 637, 640, 160 N.W. 1005, 1006, is not in conflict with the rule lai......
  • McKindley v. Citizens' State Bank of Edgeley
    • United States
    • United States State Supreme Court of North Dakota
    • March 3, 1917
    ...opinion we overlooked the decisions of this court in Cummings v. Duncan, 22 N. D. 534, 134 N. W. 712, Ann. Cas. 1914B, 976; and Sox v. Miracle, 160 N. W. 716, wherein we held that a vendee in an executory land contract obtains at law no real property interest. A discussion of the nature and......
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