Strehlow v. Fee
| Decision Date | 24 February 1917 |
| Citation | 161 N.W. 719,36 N.D. 59 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Rolette County, C. W. Buttz, J.
Action to cancel the release of certain mortgages and to foreclose the same.
Judgment for plaintiff. Defendants appeal.
Affirmed.
Fred E Harris, for appellants.
The original complaint having stated no cause of action, and the demurrer thereto having been sustained, the matters therein set forth were, by the adjudication and ruling thereon, res judicata, and a complaint filed afterward in lieu of the former, setting forth no new cause of action, but containing a mere repetition of the substance and facts of the former complaint, should be stricken out on motion. 31 Cyc. 618; Phenix Ins. Co. v. Findley, 59 Iowa 591, 13 N.W 738; Epley v. Ely, 68 Iowa 70, 25 N.W. 934; Waukon v. Strouse, 74 Iowa 547, 38 N.W. 408; McKee v. Illinois C. R. Co. 121 Iowa 550, 97 N.W 69; Hoyt v. Beach, 104 Iowa 257, 65 Am. St. Rep 461, 73 N.W. 492; Wisconsin Lumber Co. v. Greene & Western Teleph. Co. 127 Iowa 350, 69 L.R.A. 968, 109 Am. St. Rep. 387, 101 N.W. 742; Houfek v. Held, 75 Neb. 210, 106 N.W. 171; Rittmaster v. Richner, 14 Colo.App. 361, 60 P. 189; Enright v. Midland Sampling & Ore Co. 33 Colo. 341, 80 P. 1041; Ruckman v. Ormond, 42 Ore. 209, 70 P. 708; Grand Lodge, I. O. O. F. v. Troutman, 73 Kan. 35, 84 P. 567.
The question presented on such motion was not the sufficiency of the original pleading, nor the sufficiency of the amended pleading, but whether there was such a sameness of the pleadings that the latter was not entitled to be considered as an amended pleading. Noyes v. Loughead, 9 Wash. 325, 37 P. 452; Bush v. McMann, 12 Colo.App. 504, 55 P. 956.
Where a party pays mortgages on his land before they are due and takes a satisfaction of same, instead of an assignment, and without ascertaining whether or not there was anything due on them, he acts at his peril as against the holders of liens upon the land subsequent to such mortgages. Such act is not a forced payment to protect his title. Rev. Codes 1905, § 5126, Comp. Laws 1913, § 5682; Foster v. Furlong, 8 N.D. 282, 78 N.W. 986.
Plaintiff's agents, the attorney and the abstract company, overlooked these judgments, and their negligence was the negligence of plaintiff himself. Notice to the agent is notice to the principal. Rev. Codes 1905, §§ 5788, 5872, Comp. Laws 1913, §§ 6356, 6440.
Plaintiff's declarations are inadmissible except as against interest and in favor of defendants. Jones, Ev. § 236; 1 Enc. Ev. pp. 383, 504; Bronson v. Leach, 74 Mich. 713, 42 N.W. 174; Buckingham v. Tyler, 74 Mich. 101, 41 N.W. 868.
Unsigned carbon copies are not admissible; when signed, it is necessary to show that originals cannot be produced. Jones, Ev. § 208; 1 Enc. Ev. p. 539; McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S.W. 604.
A mortgage once satisfied cannot be revived, reinstated, or foreclosed. Duce v. American Mortg. & Invest. Co. 6 Dak. 122, 50 N.W. 621; Thompson v. George, 86 Ky. 311, 5 S.W. 760; Dick v. Moon, 26 Minn. 309, 4 N.W. 39; Johnson v. Anderson, 30 Ark. 745; Spencer v. Fredendall, 15 Wis. 666; Hoffman v. Wilhelm, 68 Iowa 510, 27 N.W. 483; Farrell v. Bouck, 60 Neb. 771, 84 N.W. 260; Mather v. Jenswold, 72 Iowa 550, 32 N.W. 512, 34 N.W. 327; Conner v. Welch, 51 Wis. 431, 8 N.W. 260; Weidner v. Thompson, 69 Iowa 36, 28 N.W. 422; Beal v. Congdon, 75 Mich. 77, 42 N.W. 685; Whittenbrock v. Parker, 102 Cal. 93, 24 L.R.A. 197, 41 Am. St. Rep. 172, 36 P. 374; Mueller v. Renkes, 31 Mont. 100, 77 P. 512.
One who procures an abstract from the abstracting company and relies upon it without going to the records is negligent, and such negligence forbids him to reinstate a mortgage satisfied by himself as against subsequent lien holders. Ft. Dodge Bldg. & L. Asso. v. Scott, 86 Iowa 431, 53 N.W. 283; Rice v. Winters, 45 Neb. 517, 63 N.W. 830; Hayden v. Huff, 60 Neb. 625, 83 N.W. 920; Kitchell v. Mudgett, 37 Mich. 81; 16 Cyc. 69, 140, 162; Dolvin v. American Harrow Co. 28 L.R.A.(N.S.) 887, note; 29 L.R.A.(N.S.) 872 (N. J.).
Plaintiff cannot retain the benefits of the transaction and repudiate its obligations. His failure to rescind stands as a complete bar to the recovery prayed for in this action. 29 L.R.A.(N.S.) 872 (N. J.).
He who seeks equity must do equity. 16 Cyc. 69, 140, 141, 143; Stowell v. Tucker, 7 Idaho, 312, 62 P. 1033.
Henry G. Middaugh and Rollo F. Hunt, for respondent.
The amended complaint which defendants moved to strike out because it was merely a restatement of the former complaint, to which a demurrer had been sustained, while not stating any new cause, very materially changes and amplifies the cause of action attempted to be pleaded in the former complaint, and contains a statement of vital elements necessary for plaintiff to recover, some of which are that he acted in good faith, was not guilty of negligence, and that the defendants--judgment creditors--are not prejudiced by the relief sought by the action. In any event the defendants, by pleading and going to trial after their motion was overruled, have waived any right to predicate error on the ruling. 3 C. J. 668; Flowers v. Smith, 214 Mo. 98, 112 S.W. 499; Barkley v. Barkley Cemetery Asso. 153 Mo. 300, 54 S.W. 482.
A demurrer searches the record, and the motion was argued, considered, and decided as a demurrer.
Defendants on the trial raised the same questions on objection to the admission of evidence, and the entire record was then again reopened. 31 Cyc. 666; Post v. Pearson, 108 U.S. 418, 27 L.Ed. 774, 2 S.Ct. 799.
At any time before appeal, the trial court, still having jurisdiction, has the right to reconsider any order made and to reverse its former holding to correct error. Enderlin State Bank v. Jennings, 4 N.D. 228, 59 N.W. 1058; Clopton v. Clopton, 10 N.D. 569, 88 Am. St. Rep. 749, 88 N.W. 562.
The doctrine of res judicata is not applicable to such proceedings. 15 Enc. Pl. & Pr. 349; Johnston v. Brown, 115 Cal. 694, 47 P. 686; Bowers v. Cherokee Bob, 46 Cal. 280; Jensen v. Barbour, 12 Mont. 566, 31 P. 592; 14 Enc. Pl. & Pr. 176; Page v. Page, 77 Cal. 83, 19 P. 183; Sim v. Rosholt, 16 N.D. 77, 11 L.R.A.(N.S.) 372, 112 N.W. 50; Plano Mfg. Co. v. Doyle, 17 N.D. 386, 17 L.R.A. (N.S.) 606, 116 N.W. 529.
It is of some importance to note that the original order sustaining the demurrer was not in conformity with the statute, and if an appeal had been taken therefrom, the supreme court might not have considered same. Comp. Laws 1913, § 7944.
A merger will never result where it is plain that it would be contrary to the intentions of all the parties concerned, and especially to the grantee, or if he is ignorant of intervening liens and encumbrances against his interests. 27 Cyc. 1381, 1382, citing authorities; Gray v. Nelson, 77 Iowa 63, 41 N.W. 566; Topliff v. Richardson, 76 Neb. 114, 107 N.W. 114; Hines v. Ward, 121 Cal. 115, 53 P. 427; May v. Cummings, 21 N.D. 281, 130 N.W. 826.
Where an intervening judgment creditor satisfies his judgment by execution sale after the landowner has so mistakenly satisfied such mortgages, and the judgment creditor so acted with full knowledge of plaintiff's situation, it is wholly immaterial to plaintiff's rights. 2 Pom. Eq. Jur. § 871; 27 Cyc. 1433; White v. Stevenson, 144 Cal. 104, 77 P. 828; Pearce v. Buell, 22 Ore. 29, 29 P. 78; Young v. Shaner, 73 Iowa 555, 5 Am. St. Rep. 701, 35 N.W. 629; Ricker v. Stott, 13 S.D. 208, 73 N.W. 47.
When it can be done without injury to third persons in such cases, the record should be restored and the mortgage enforced according to its terms. Benedict v. Crookshank, 58 Mich. 107, 24 N.W. 795; Upton v. Hugos, 7 S.D. 476, 64 N.W. 523; Woolson v. Kelley, 73 Minn. 513, 76 N.W. 258; Bowen v. Gilbert, 122 Iowa 448, 98 N.W. 273; Ward v. Seymour, 51 Vt. 320; Elliott v. Tainter, 88 Minn. 377, 93 N.W. 124; Ebert v. Gerding, 116 Ill. 217, 5 N.E. 591; Gardner v. Astor, 3 Johns. Ch. 53, 8 Am. Dec. 465; Arlington State Bank v. Paulson, 57 Neb. 717, 78 N.W. 314; Southern Kansas Farm, Loan & T. Co. v. Garrity, 57 Kan. 805, 48 P. 33; Nommenson v. Angle, 17 Wash. 394, 49 P. 484; Scott v. Smith, 58 Ore. 591, 115 P. 969; Atkinson v. Plum, 50 W.Va. 104, 58 L.R.A. 794, 40 S.E. 587; French v. De Bow, 38 Mich. 708; Barnes v. Mott, 64 N.Y. 397, 21 Am. Rep. 625.
There is no question of negligence here involved. It is one of mistake only, and such mistakes may always be corrected where the rights of others have not been changed to their detriment. Wittenbrock v. Parker, 102 Cal. 93, 24 L.R.A. 197, 41 Am. St. Rep. 172, 36 P. 374; McConnell v. American Nat. Bank, 59 Ind.App. 319, 103 N.E. 809.
This in an action for the reinstatement and foreclosure of two certain prior mortgages which plaintiff claims to have paid or purchased in order to protect his title, but to have released through mistake and in ignorance of the existence of three judgment liens.
The first point raised by the defendants and appellants is that a demurrer was formerly sustained to the complaint, and that the amended complaint was practically a repetition thereof. They, therefore, urge that the matter was res judicata, and that their motion to strike the amended complaint from the files should have been sustained, regardless of the sufficiency in law of the original or amended complaint.
There is no merit in this contention. The learned trial court, on the motion to strike out, reversed the ruling of his predecessor in office on the former demurrer and held that it was erroneous. He had certainly the right...
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