Steinwand v. Brown
| Decision Date | 20 October 1917 |
| Court | North Dakota Supreme Court |
Rehearing denied December 28, 1917.
Appeal from District Court of Dickey County, Honorable Frank P Allen, Judge.
Defendant appeals.
Affirmed.
W. S Lauder (Youker & Perry, of counsel) for appellants.
To entitle a party to foreclose a mortgage by advertisement, all assignments must first be duly recorded. Code, § 8077 subd. 3; Page v. Smith, 33 N.D. 369, 157 N.W. 477, and cases cited; Morris v. McKnight, 1 N.D. 266, 47 N.W. 375; Langmaack v. Keith, 19 S.D. 351, 103 N.W. 210.
A party foreclosing a mortgage by advertisement must not only own the mortgage in fact, but his ownership must appear upon the records in the office of the register of deeds.
Otherwise a party has no right to so foreclose, and the foreclosure and the sheriff's deed issued thereon are wholly void. Hickey v. Richards, 3 Dak. 345, 20 N.W. 428; Hebden v. Bina, 17 N.D. 235, 138 Am. St. Rep. 700, 116 N.W. 85; D. S. B. Johnston Land Co. v. Mitchell, 29 N.D. 510, 151 N.W. 23.
Every person who has actual notice of circumstances sufficient to put a prudent man upon his inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice. Code, § 7290, 2 Pom. Equity Jurisprudence, 3d ed. § 637; Roll v. Rea, 50 N.J.L. 264, 12 A. 905; Albia State Bank v. Smith, 141 Iowa 255, 119 N.W. 608; Clark v. Bullard, 66 Iowa 747, 24 N.W. 561; AEtna L. Ins. Co. v. Bishop, 69 Iowa 645, 29 N.W. 761; Mathews v. Jones, 47 Neb. 616, 66 N.W. 622; Hubbard v. Knight, 52 Neb. 400, 72 N.W. 473; Brush v. Ware, 15 Pet. 93, 10 L.Ed. 672; White v. Foster, 102 Mass. 375; Baker v. Mather, 25 Mich. 51; Higgins v. Dennis, 104 Iowa 605, 74 N.W. 9.
One who takes a mortgage upon real property has constructive notice of every fact which could have been ascertained by an inspection of the deeds and mortgages on record in the chain of title. Pillow v. Southwest Virginia Improv. Co., 92 Va. 144, 53 Am. St. Rep. 804, 23 S.E. 32; Kirsch v. Tozier, 42 Am. St. Rep. 729, and note, 143 N.Y. 390, 38 N.E. 375; McPherson v. Rollins, 107 N.Y. 316, 1 Am. St. Rep. 826, 14 N.E. 411; Stewart v. Matheny, 14 Am. St. Rep. 539, note.
"Whatever is sufficient to put a person of ordinary prudence upon inquiry is constructive notice of everything to which that inquiry would presumably have lead." Mercantile Nat. Bank v. Parsons, 40 Am. St. Rep. 299, and note, 54 Minn. 56, 55 N.W. 825; Doran v. Dazey, 5 N.D. 167, 57 Am. St. Rep. 550, 64 N.W. 1023; 2 Devlin, Real Estate, §§ 710, 710a; Hingtgen v. Thackery, 23 S.D. 329, 121 N.W. 839; Hall v. Orvis, 35 Iowa 366; Mosle v. Kuhlman, 40 Iowa 108; Clark v. Stout, 32 Iowa 213; State v. Shaw, 28 Iowa 67.
The defendant is not estopped to assert his rights. Estoppel is essentially an equitable rule. To fix acquiescence upon a party, it must unequivocally appear that he knew or had notice of the fact upon which the alleged acquiescence is founded and to which it refers. Herman, Estoppel, 6th ed. pp. 663 et seq.; Goss v. Herman, 20 N.D. 305, 127 N.W. 78; 12 Am. & Eng. Enc. Law, 547; Kenny v. McKenzie, 23 S.D. 111, 49 L.R.A. (N.S.) 775, 120 N.W. 781; Biddle Boggs v. Merced Min. Co., 14 Cal. 279, 10 Mor. Min. Rep. 334; Bigelow, Estoppel, p. 439; Brant v. Virginia Coal & I. Co., 93 U.S. 326, 23 L.Ed. 927; Brigham Young Trust Co. v. Wagener, 12 Utah 1, 40 P. 764, 8 Enc. Pl. & Pr. 10; Ergenbright v. Henderson, 72 Kan. 29, 82 P. 524; Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157; Page v. Smith, 13 Ore. 410, 10 P. 833; Buck v. Milford, 90 Ind. 291; Meyendorf v. Frohmer, 3 Mont. 282, 5 Mor. Min. Rep. 559; Hope Lumber Co. v. Foster & L. Hardware Co., 53 Ark. 196, 13 S.W. 731.
To effect an estoppel by silence it must appear that the person had a full knowledge of the facts and of his rights, that he had an intent to mislead or at least a willingness that others should be deceived, and that the other party was misled by his attitude. 10 R. C. L. pp. 693, 694, subd. 21, and notes; Davidson v. Jennings, 27 Colo. 187, 48 L.R.A. 340, 83 Am. St. Rep. 49, 60 P. 354; Crest v. Jack, 3 Watts, 238, 27 Am. Dec. 353; Bartlett v. Kauder, 97 Mo. 356, 11 S.W. 67; Cook v. Walling, 117 Ind. 9, 2 L.R.A. 769, 10 Am. St. Rep. 22, 19 N.E. 532.
Plaintiff must rely on the strength of her own title, and not upon the weakness of the title of her adversary. Page v. Smith, 33 N.D. 369, 157 N.W. 477.
Title by prescription is not shown. The legal title has been at all times in defendant, of which fact the mortgage company and its assigns, including plaintiff's testator, have had constructive notice from the record. Page v. Smith, 33 N.D. 377, 157 N.W. 477.
Unimproved and unoccupied land is deemed to be in the possession of the holder of the legal title, and not in the holder of an alleged title acquired under void judicial proceedings, or a void mortgage foreclosure. State Finance Co. v. Beck, 15 N.D. 374, 109 N.W. 357; Page v. Smith, 33 N.D. 376, 157 N.W. 477; Jasperson v. Scharnikow, 15 L.R.A. (N.S.) 1189 note.
Plaintiff's title or claim has not ripened into a perfect title.
"An adverse claim to land may ripen into a perfect title by virtue of the Statute of Limitations; but it is primarily essential that the possession relied upon be actual, and for the full period of time required." Page v. Smith, supra; D. S. B. Johnston Land Co. v. Mitchell, 29 N.D. 510, 151 N.W. 23; Power v. Kitching, 10 N.D. 254, 88 Am. St. Rep. 691, 86 N.W. 737; J. B. Streeter, Jr. Co. v. Fredrickson, 11 N.D. 300, 91 N.W. 692.
F. J. Graham and E. E. Cassels, for respondent.
It is well settled that when an adverse possession of real property has continued for a sufficient length of time so that the remedies of the owner to recover the land have become barred by the Statute of Limitations, the title to such premises is devested and becomes vested in the adverse occupant. Sprecker v. Wakeley, 11 Wis. 433; Rogers v. Benton, 39 Minn. 39, 12 Am. St. Rep. 613, 38 N.W. 765; Brown, Limitation & Adverse Possession, §§ 1-4, and cases cited in notes to § 4; Campbell v. Holt, 115 U.S. 620, 29 L.Ed. 483, 6 S.Ct. 209; Chapin v. Freeland, 142 Mass. 383, 56 Am. Rep. 701, 8 N.E. 128; Comp. Laws 1913, §§ 7362, 7363, 7381; Dak. Rev. Codes 1877, 2d ed. p. 4, preface.
These sections of our Code came to us with a construction placed upon them, and, in adopting them, we adopted the construction of them. Miner v. Beekman, 50 N.Y. 337; Hubbell v. Sibley, 50 N.Y. 468; Houts v. Hoyne, 14 S.D. 176, 84 N.W. 773; Nash v. North West Land Co., 15 N.D. 566, 108 N.W. 792.
A mortgagor's remedies against a mortgagee in possession are conclusively of an equitable nature. Backus v. Burke, 63 Minn. 272, 65 N.W. 459; Jones, Mortg. 6th ed. §§ 715 and 716, and cases cited; Nash v. Northwest Land Co., 15 N.D. 566, 108 N.W. 792; Mears v. Somers Land Co., 18 N.D. 384, 121 N.W. 916; Rogers v. Benton, 39 Minn. 39, 12 Am. St. Rep. 613, 38 N.W. 765; Houts v. Hoyne, 14 S.D. 176, 84 N.W. 773.
"If a man knowingly, although he does it passively, suffers another to purchase and expend money on land under an erroneous opinion of title without making known his claim, he shall not afterwards be permitted to exercise his legal rights against such person." Shelby v. Bowden, 16 S.D. 531, 94 N.W. 416; Wampol v. Kountz, 14 S.D. 334, 86 Am. St. Rep. 765, 85 N.W. 595; Murphy v. DaFoe, 18 S.D. 42, 99 N.W. 86; Diamond v. Manheim, 61 Minn. 178, 63 N.W. 495; Kirk v. Hamilton, 102 U.S. 68, 26 L.Ed. 79; State ex rel. Miller v. Graham, 21 Neb. 339, 32 N.W. 142; Gillespie v. Sawyer, 15 Neb. 536, 19 N.W. 449; Simmons v. Burlington C. R. Co., 159 U.S. 278, 40 L.Ed. 150, 16 S.Ct. 1; Kenny v. McKenzie, 25 S.D. 485, 49 L.R.A. (N.S.) 782, 127 N.W. 597; Pom. Eq. Jur. § 865.
There are cases where it is the duty of a person to speak, although the actual state of the title might be ascertained by an examination of the records, and courts have frequently applied the doctrine of estoppel by conduct in such cases, even when the conduct of the party estopped consisted merely of his silence and failure to assert his title at the proper time. Conklin v. Wehrman, 38 F. 874; Sumner v. Seaton, 47 N.J.Eq. 111, 19 A. 884; Pom. Eq. Jur. §§ 804, 965; Horn v. Cole, 51 N.H. 287, 12 Am. Rep. 111; Bausman v. Faue, 45 Minn. 412, 48 N.W. 13; Wetzel v. Minnesota R. Transfer Co., 12 C. C. A. 490, 27 U. S. App. 594, 65 F. 23; Murphy v. Dafoe, 18 S.D. 42, 99 N.W. 86; Kirk v. Hamilton, 102 U.S. 68, 26 L.Ed. 79; Wendell v. Van Rensselaer, 1 Johns. Ch. 344; Bacon v. Northwestern Mut. L. Ins. Co., 131 U.S. 258, 33 L.Ed. 128, 9 S.Ct. 787; Kenny v. McKenzie, 25 S.D. 485, 49 L.R.A. (N.S.) 782, 127 N.W. 597.
The plaintiff brings this suit under the statute to determine adverse claims to a quarter section of land (N.W. 1/4 2-131-64) in Dickey county. On August 4, 1914, Daniel Brown by answer avers that he is the owner in fee of the land and entitled to possession of the same under a patent from the United States. In reply the plaintiff avers that under a mortgage deed made by Brown, a foreclosure of the same, and a sheriff's deed, she and her grantors have been in actual and continuous, open and adverse, possession of the land for more than twenty years, and have paid all taxes on the land since 1883. That during all of said time defendant lived within a mile of the land and made no claim to it. The trial court gave judgment quieting plaintiff's title, and defendant appeals. By his answer Brown claims title under a receiver's receipt made to him in December, 1883, and a United States' patent in 1883. He avers that he owns the land and that for more than twenty years he has been...
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