Spencer v. Beiseker
| Decision Date | 03 February 1906 |
| Citation | 107 N.W. 189,15 N.D. 140 |
| Court | North Dakota Supreme Court |
Rehearing denied March 12, 1906.
Appeal from District Court, McLean county; Winchester, J.
Action by Fred Spencer against T. L. Beiseker. Judgment for plaintiff, and defendant appeals.
Reversed.
Judgment reversed, and a new trial ordered.
R. A Palmeter, Hanchett & Wartner, and Guy C. H. Corliss, for appellant.
H. R Turner, for respondent.
The plaintiff brought this action to determine adverse claims to 160 acres of land situated in McLean county. The complaint is substantially in the form prescribed by chapter 5, page 9, Laws 1901, and demands, among other things (1) that the defendant set forth all adverse claims that he may have to said land, and "that the validity, superiority and priority thereof be determined;" and (2) "that the same be adjudged null and void. * * *"
The defendant answered, setting forth two distinct claims. The first is a mortgage for $ 849.15, alleged to have been executed and delivered by the plaintiff and his wife to the defendant on October 21, 1902, to secure their joint promissory note for the above sum of even date with said mortgage. The second claim is under a sheriff's certificate to the defendant issued on August 21, 1904, at a foreclosure sale of the premises under a mortgage alleged to have been given by the plaintiff and his wife on August 1 1903, to Hatch and Heinsius to secure the sum of $ 334.50, and duly assigned to the plaintiff prior to the foreclosure. It is alleged that the premises were struck off to the plaintiff at the sale for $ 423.13, and that there has been no redemption. The answer also alleges the due execution and recording of all the instruments referred to, and prays for judgment confirming the validity of the mortgage and the validity of the sheriff's certificate. The plaintiff did not reply, and a reply was unnecessary. The statute above referred to, and under which this action is brought, expressly declares that "no reply shall be required on the part of the plaintiff," except "* * * when he has made permanent improvements under color of title." In other words, the statute dispenses with the necessity of framing issues by a proper pleading as in other actions, and requires the court to determine "the validity, superiority and priority" of the claims set up without a pleading assailing their validity. The presiding judge called a jury and the evidence was submitted to them pursuant to a stipulation of the parties, made when the case was called, that "the questions of fact involved in this action" should be submitted to a jury. During the course of the trial the plaintiff and his wife testified that they did not sign the mortgage constituting plaintiff's first claim, or the note purporting to be secured by it. The notary public who took the purported acknowledgment of the mortgagor and one of the subscribing witnesses testified that both the note and mortgage were signed in their presence. No evidence was offered assailing the sheriff's certificate, and there is sufficient evidence in the record to sustain its validity. The trial judge submitted a single question to the jury, and that was whether the plaintiff and his wife executed and delivered the note and mortgage set forth in defendant's first claim, to which they answered "No." The trial judge approved this finding of the jury, and thereafter made and filed his findings of fact and conclusions of law in accordance therewith, and directed the entry of judgment for plaintiff canceling said mortgage and the record thereof and for costs. No questions of fact affecting the validity or invalidity of the sheriff's certificate were submitted, and the findings and judgment do not refer to it, directly or indirectly. The defendant moved for a new...
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