State Finance Co. v. Halstenson
| Decision Date | 08 January 1908 |
| Citation | 114 N.W. 724,17 N.D. 145 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Nelson County; Fisk, J.
Action by the State Finance Company against Olaus H. Halstenson and others. Judgment for plaintiff, and defendants Hodgson and Mary S. Hodgson appeal.
Affirmed.
Skulason & Skulason, for appellants.
Sheriff's deed was champertous. Revised Codes 1905, Section 8733; Galbreath v. Payne, 12 N.D. 164, 96 N.W. 258; Schneller v. Plankinton, 12 N.D. 561, 98 N.W. 77; Conrad v. Adler, 13 N.D. 199, 100 N.W. 722.
Where different initial letters occur in names of persons in the chain of title to realty, identity must be shown. Ambs v Chicago, etc., 46 N.W. 321; Anderson v. Wynne, 54 N.W. 1047; Vickery v. Burton, 6 N.D. 245, 69 N.W. 193.
Mortgages contemporaneously given are deemed one instrument. Koevening v. Schultz, 32 N.W. 320; Stanbrough v Daniels, 42 N.W. 443; Eleventh Ward Sav. Bank v Hay, 55 How. Pr. 444; Decker v. Boice, 83 N.Y. 215; Cain v. Hanna, 63 Ind. 408; Cochrane v. Goodell, 131 Mass. 464; Ward Sav. Bank v. Hay, 55 How. Pr. 464; Green v. Warnick, 64 N.Y. 220.
Absence of a note renders a presumption of its payment. 22 Enc. Law 589; 9 Enc. Pl. & Pr. 400; George v. Ludlow, 66 Mich. 176; Pharris v. Surrett, 54 Mo.App. 9.
M. Conklin, Wicks, Paige & Lamb, for respondent.
Identity of name is identity of person, although spelling varies, if sound is the same. Rogers v. Manley, 46 Minn. 403; State v. Loser, 104 N.W. 337; Find v. Manhattan R. Co., 15 Daly 479; Mallory v. Riggs, 76 Iowa 748; 17 L. R. A. 824 note; 14 Enc. Pl. & Pr. 292, 288; Jackson v. Woodruff, 9 Cow. 141; Miner v. Boneham, 15 John 226; Claw v. Plummer, 85 Mich. 550; Smith v. Gillum, 80 Tex. 120; Dickerson v. Brady, 23 Ga. 161; State v. Stedman, 7 Port. 495; Beckwith and Beckworth, 4 Black 171; Adamson and Adanson, 7 Black 325; Kamberling and Kimberling, 4 G. Greene, 437; Bernhart and Banhart, 34 Kan. 488; Wilkerson and Wilkinson, 13 Mo. 91, 53 Am. Dec. 137; Blackenship and Blankenship, 21 Mo. 504; Owens D. Havely and Owen D. Haverly, 21 Mo. 498; Bert Samrud and Bernt Sannerud, in State v. Sannerud, 38 Minn. 229. Chamblee v. Tarbox, 27 Tex. 140.
Foreclosure by advertisement does not affect priority of mortgages. Van Aken v. Gleason, 34 Mich. 477.
Assignee of mortgages takes subject to equities. Westbrook v. Gleason, 79 N.Y. 30; Bush v. Lathrop, 22 N.Y. 535; Shaper v. Reilly, 50 N.Y. 61; Gilman v. Moody, 43 N.H. 239.
Claimant of priority of record must prove consideration. Shotwell v. Harrison, 22 Mich. 409; Landers v. Bolton, 26 Cal. 393; Fritz v. Ramspott, 79 N.W. 520; Newton v. Newton, 48 N.W. 450; Roussain v. Patten, 48 N.W. 1122; Fifield v. Norton, 82 N.W. 581; Lloyd v. Simons, 95 N.W. 903; Hoppin v. Doty, 25 Wis. 573; Proctor v. Cole, 104 Ind. 373.
Lapse of time alone is not laches. Jones on Mtgs. Sec. 558; Sis v. Boardman, 11 App. D. C. 116; Demuth v. Old Town Bank, 37 A. 266; Richey v. Sinclair, 47 N.E. 364; Cross v. Allen, 141 U.S. 528; Stevens v. Osgood, 100 N.W. 161; Burke v. Backus, 53 N.W. 458; Morris v. McClary, 46 N.W. 238.
MORGAN, C. J. Fisk, J., being disqualified, Pollock, J., of the Third judicial district, sat by request.
This is an action to determine adverse claims to 160 acres of land in Nelson county. The register's receipt and the patent to this land were issued in the name of Ole Ackenland. The plaintiff claims title by virtue of a sheriff's deed, issued to it on May 13, 1903, under a foreclosure of a mortgage from Ole S. Ackerland, for the sum of $ 350, on July 24, 1883, to Emma B. Gove, and by her assigned to the plaintiff on February 25, 1902. The consideration recited in the assignment was "$ 1 and other valuable consideration." The defendant Mary S. Hodgson claims title under a tax deed, issued to her on July 16, 1900, and under a sheriff's deed, issued to her on January 27, 1902, on an assignment of a sheriff's certificate of sale under a mortgage for $ 35, given to F. T. Day by said Ackerland on July 24, 1883, and foreclosed by advertisement on April 25, 1886, and bid in by said Day, and the certificate of sale was thereafter duly assigned by him to Mary S. Hodgson, as before stated. On September 26, 1900, said Day also delivered a quitclaim deed of said premises to said Mary S. Hodgson. Mary S. Hodgson also claims under a quitclaim deed from one Munson, who is alleged to have been the assignee of Day for the benefit of creditors. There is no deed in evidence from Day to Munson. Hence Munson's deed to Mrs. Hodgson conveyed no title, and will not be further considered. The mortgage for $ 350 and said mortgage for $ 35 were executed, acknowledged, and delivered on the same day, and filed for record on the same day and hour. There is nothing in the record showing which was first actually filed or numbered for record by the register of deeds. The $ 35 mortgage was given to Day for commissions for procuring the money for which the $ 350 mortgage was given. Said Day and one E. J. Hodgson, the husband of the defendant, Mary S. Hodgson, were jointly and equally interested in the $ 35 mortgage under the general custom of doing business between Day and Hodgson, by which Day procured the money for farm loans, which were made on applications sent by Hodgson to Day. Hodgson did all the work connected with the making of the loans, as well as taking care of their collection, and all commissions were equally divided between them, although the commission mortgages were in Day's name for the benefit of both of them. The defendant Halstenson went into possession of the premises in suit in 1898 and lived thereon continuously with his family after 1901, and made improvements thereon, aggregating in value over $ 450. He went into possession under a contract for a special warranty deed between him and said E. J. Hodgson. He was in possession of the land at the time the sheriff's deed was issued to the plaintiff under the foreclosure mentioned heretofore. Upon ascertaining that E. J. Hodgson had no title to the land when he gave this contract, Halstenson made no further payments. The contract was never canceled or rescinded. Halstenson paid the sum of $ 90 in cash in part payment of the purchase price. The defendants Lamb Bros. and Swenseid & Knold claim to be lienholders on account of having furnished building materials to said Halstenson, and have perfected their liens by filing the proper papers. The trial court ordered judgment for the plaintiff, quieting the title, and disallowed the claims of all the defendants to the land. The defendants Halstenson and Mary S. Hodgson have appealed and demand a trial de novo under section 7229, Rev. Codes 1905.
The appellants contend that the judgment of the district court is erroneous for the following reasons: (1) That the sheriff's deed, to the plaintiff was void as to Halstenson as a champertous deed, he having been in possession of the land when the same was issued; (2) that the plaintiff acquired no title to the land, for the reason that the mortgage foreclosed by it was given to one Ackerland and the land was patented to one Ackenland; (3) that the mortgage under which the defendant Mary S. Hodgson acquired title was prior to the mortgage under which the plaintiff acquired its title; (4) that the claim under which plaintiff acquired title is stale, and a court of equity should not entertain the same, but should presume that the same had been paid and satisfied; (5) that the trial court erred in refusing to allow an amendment to defendant Halstenson's answer, setting forth the value of the improvements placed on the land by him; (6) that the trial court erred in not substituting the personal representative of E. J. Hodgson, deceased, as a party on the suggestion of counsel for Halstenson and Mary S. Hodgson; (7) that the court erred in decreeing the tax deeds invalid without a tender or payment of all just taxes. The claim of maintenance or champerty as to the sheriff's deed to the plaintiff while Halstenson was in possession cannot be sustained. Plaintiff's title was derived through a foreclosure of mortgage from the owner of the land. Section 8734, Rev. Codes 1905, expressly authorizes the giving of a mortgage upon land adversely held by another. Galbraith v. Paine, 12 N.D. 164, 96 N.W. 258. The deed was given pursuant to the mortgage given by the owner of the land before Halstenson went into possession. Deeds given while possession is so held are not deemed champertous, and possession under such deeds is not adverse, when based upon the mortgage. Halstenson's possession was based on a contract for a deed from E. J. Hodgson. Hodgson had not any title to the land when the contract was given. For that reason Halstenson had no rights to the land, as Hodgson had nothing to convey. Halstenson's possession did not therefore make the sheriff's deed champertous under section 7002, Rev. Codes 1899. Sheriff's deeds given pursuant to foreclosure sales do not come within the application of said section. They are in the nature of judicial sales, which are never held void under said section. 5 Enc. of L. p. 84, and cases cited.
The contention that Hodgson held title under tax certificate and tax deeds is not borne out by the evidence. The allegations of the answer are not sustained as to payment of taxes or as to the ownership of the land under tax deeds.
It is next claimed that the plaintiff has not title to the land for the reason that the mortgage under which it claims was given by Ole S. Ackerland, while the title is shown to have been in Ole...
To continue reading
Request your trial