Walton v. Perkins
| Citation | 10 N.W. 424,28 Minn. 413 |
| Parties | James W. Walton v. Charles C. Perkins |
| Decision Date | 11 November 1881 |
| Court | Supreme Court of Minnesota (US) |
Appeal by defendant from an order of the district court for Rice county, Buckham, J., presiding, overruling a demurrer to the complaint.
The complaint alleged, substantially, the following facts: That plaintiff is, and has been since 1861, the owner of certain described premises in the county. That in 1878, the defendant, claiming to own the same "by virtue of a pretended and alleged sale thereof for non-payment of taxes claimed to have been assessed thereon in each of the years 1871, 1872, 1873, 1874 and 1875, sold and conveyed them to one Noska. That Noska, to secure a part of the purchase-money, gave to defendant a mortgage on the premises (reciting it in full,) which was recorded. That, under this purchase, Noska went into possession, and subsequently sold a portion of the premises. That the plaintiff commenced an action of ejectment against Noska and his grantee, and recovered judgment against them, adjudging him to be the owner in fee. That Noska and his grantee acquiesced in such judgment and both are now in possession of said premises holding under plaintiff's title and under an agreement to purchase from him; but that the mortgage from Noska to defendant is a cloud upon plaintiff's title, and plaintiff cannot sell or dispose of the premises without great sacrifice unless the same is removed. The relief prayed is that the mortgage be surrendered and cancelled, and the defendant enjoined from collecting, enforcing or foreclosing it.
Order reversed.
Perkins & Whipple, for appellant.
Case & Gipson, for respondent.
This complaint is clearly drawn as a bill in equity, under the former system of pleading, to procure the cancellation of a mortgage, on the ground that it is a cloud on plaintiff's title, and it is equally clear that it intends to call in question only the tax sale which it refers to; for, if that was a valid sale, vesting the title in defendant, plaintiff being divested of his title, is not in position to impeach the deed from defendant to Noska, nor the mortgage from Noska to defendant; and there is no attempt to impeach them, unless by attacking the tax sale, for the complaint alleges as to each that it was duly executed, acknowledged and delivered. That there was a tax sale is not positively averred, the statement being that the "defendant then claiming to have been the sole and absolute owner in fee of the lands above described under and by virtue of a pretended and alleged sale thereof for non-payment of taxes claimed to have been assessed thereon in each of the years," etc., but it is not alleged that there was no tax sale. The plaintiff cannot complain, if we construe the complaint as intending to aver that there was a tax sale in fact, but not as intending to concede its validity. So construing the complaint, it then became necessary, in order to make it good as a bill for the cancellation of the mortgage, to allege facts showing that the tax sale was not valid. This the complaint does not do, and for that reason it is not good.
But it is claimed, and was decided by the court below, that though the complaint is deficient as one in the nature of a bill in equity for the cancellation of the mortgage, yet, as it alleges facts that would make a good complaint in an action under Gen. St. 1878, c. 75, §§ 2, 3, to determine adverse claims to real estate, a demurrer on the ground that it does not state facts sufficient to constitute a cause of action will not lie. This proposition does not necessarily involve the question, how far a complaint, the facts in which show the plaintiff to have a cause of action though manifestly not that attempted to be set forth, may...
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