Wilson v. Russell

• Decision Date: 14 February 1887
• Citation: Wilson v. Russell, 31 N.W. 645, 4 Dakota 376 (N.D. 1887)
• Parties: Wilson v. Russell.
• Court: North Dakota Supreme Court

31 N.W. 645

4 Dakota 376

Wilson v. Russell.

Supreme Court of Territory of Dakota

February 14, 1887

Appeal from district court, Richland county.

Miller & Greene, for appellant. Wilson, Ball & Wallin, for respondent.

FRANCIS J.

August 15, 1881, Mary E. Pitcher, being the owner in fee of section 13, in township 136 N., of range 50 W., in Richland county Dakota, executed a mortgage thereon to one George A. Elder to secure the payment of $2,500, according to the conditions of a certain promissory note of even date therewith, and for a like sum. Said mortgage contained a clause providing, in substance, that if default should be made in the payment of said sum of money, or the interest, or in payment of the taxes, or in the performance of any of the covenants or agreements of the party of the first part therein contained then the said party of the first part might declare the said note fully due and payable, and sell the premises at public auction, "and convey the same to the purchaser in fee-simple, agreeable to the statute in such cases made and provided." August 24, 1881, Elder assigned the mortgage to the respondent by assignment in usual form. The mortgage and assignment were duly recorded. The mortgagor defaulted in the payment of annual interest, and March 21, 1884, the respondent began the foreclosure of the mortgage by advertisement; and on May 9, 1884, the property covered by the mortgage was sold under said foreclosure notice, and "struck off" to the respondent for the amount then due on the mortgage, together with the costs and charges, amounting in all to the sum of $3,026.15, he being the highest bidder therefor. At the time of the sale Moses P. Propper was the sheriff of Richland county, and S. B. Brigham (full name not given) was the deputy-sheriff. The notice of sale gave notice that the mortgaged premises would be sold at public auction, May 9, 1884, at 10 o'clock in the forenoon, but did not state who would act as auctioneer. Said Brigham acted as auctioneer at the sale.

After, and on the day of the sale, the following affidavit of sale was made:

"Territory of Dakota, County of Richland--ss.: Moses P. Propper, being duly sworn, says that he is the sheriff of the county of Richland, and that as such sheriff he acted as auctioneer at the sale of the premises described in the foregoing and annexed printed copy of notice of mortgage sale, and that pursuant to such notice of sale he sold said premises at public vendue, at the time and place of sale therein mentioned, to-wit, at the hour of 10 o'clock in the forenoon, on the ninth day of May, A. D. 1884, at the front door of the court-house in the county of Richland, wherein said premises are situated; and that said premises were then and there purchased by James Wilson for the sum of two thousand and twenty-three dollars, he being the highest and best bidder, and that being the highest and best sum bidden, for such premises at such sale; that said sum bid as aforesaid embraced the following items, disbursements, and amounts, as exhibited to me at the time, viz.: *** And deponent further says that said mortgaged premises, consisting of one tract, was sold in one parcel, and no more of said premises were there sold than was necessary to satisfy the amount due on said mortgage at the date of the notice of sale, together with interest, taxes paid, and costs; and that said sale was conducted fairly, honestly, and according to law, to the best of his knowledge and belief.

"MOSES P. PROPPER, Sheriff of Richland Co., D. T.

"By S. B. BRIGHAM, Deputy. "Subscribed and sworn to before me this ninth day of May, A. D. 1884.

[Seal.]

"JOSHUA R. BUXTON, Notary Public, Richland County, D. T.

"Filed for record this ninth day of May, 1884, at 4 o'clock P. M.

"J. M. RUGGLES, Register of Deeds."

An error having been made in footing up the items of disbursements, another affidavit of sale was, on the nineteenth day of May, 1884, made as follows:

"S. B. Brigham, Deputy-Sheriff of Richland County, D. T., to James Wilson.

Territory of Dakota, County of Richland--ss.: S. B. Brigham, being duly sworn, says that he is, and was at the time hereinafter mentioned, deputy-sheriff of the county of Richland, and that, as such deputy-sheriff, he acted as auctioneer at the sale of the premises described in the foregoing and annexed printed copy of notice of mortgage sale, and that pursuant to such notice of sale he sold said premises at public vendue at the time and place of sale herein mentioned, to-wit, at the hour of ten o'clock in the forenoon on the ninth day of May, A. D. 1884, at the front door of the court-house in the county of Richland, wherein said premises are situated; and the said premises were then and there purchased by James Wilson for the sum of three thousand and twenty-three dollars, he being the highest and best bidder, and that being the highest and best sum bid, for such premises at such sale. *** And deponent further says that said mortgaged premises, consisting of one tract, sold in one parcel, and no more of said premises were then sold than was necessary to satisfy the amount due on said mortgage at the date of the notice of sale, together with interest, taxes paid, and costs, and that said sale was conducted fairly, honestly, and according to law, to the best of his knowledge and belief.

S. B. BRIGHAM.

"This affidavit is made to correct a clerical error in the former affidavit, as of record in Book O of Mortgages, page 63.

S. B. BRIGHAM.

"Subscribed and sworn to before me this ninteenth day of May, A. D. 1885.

[Seal.]

"JOSHUA R. BUXTON, Notary Public, Richland County, D. T.

"Filed for record May 19, 1885, at 9 A. M.

"J. M. RUGGLES, Register of Deeds."

On the day of the sale Moses P. Propper, by Brigham, as such deputy-sheriff, gave to the purchaser a certificate of sale, as follows:

"Mary E. Pitcher, by the Sheriff of Richland County, D. T., to James Wilson.

Territory of Dakota, County of Richland--ss.: I, Moses P. Propper, sheriff of the county of Richland, territory of Dakota, do hereby certify that, by virtue of an indenture of mortgage made, executed, and delivered by Mary E. Pitcher, mortgagor, to George A. Elder, mortgagee, and the power of sale therein contained, which said mortgage bears date on the fifteenth day of August, 1881, and was on the nineteenth day of August, 1881, at seven o'clock A. M., duly recorded in the office of the register of deeds of said Richland county, territory of Dakota, in Book E of Mortgages, on pages 475 and 476, which mortgage conveyed the premises hereinafter described to secure the payment of two thousand five hundred dollars, and interest, according to the conditions of one certain promissory note therein described, on the ninth day of May, A. D. 1884, at the hour of ten o'clock in the forenoon of said day, having first given public notice of the time and place of the sale by publishing the same as required by law, I did offer for sale at public auction, at the front door of the court-house, in the county of Richland and territory of Dakota, and I then and there openly and publicly struck off and sold the same to James Wilson for the aggregate sum of three thousand twenty-three dollars and _______ cents, in the manner and at the price following, to-wit: All of section number thirteen, (13,) township one hundred and thirty-six (136) north, of range numbered fifty (50) west; all of said property herein described being sold by me as one parcel, for the price hereinbefore mentioned. And I further certify that the said premises were then and there sold at public auction, and that said purchaser was the highest bidder for said premises, and for each tract or parcel included therein, and that the price hereinbefore mentioned was the highest price bid for each distinct parcel, and the whole price so bid was paid in by said purchaser; and I further certify that the said premises are subject to redemption within one year from the date of said sale, unless said premises are previously redeemed as provided by law.

In testimony whereof I have hereunto set my hand and seal this ninth day of May, A. D. 1884.

"MOSES P. PROPPER, Sheriff of Richland Co., D. T.

"By S. B. BRIGHAM, Deputy-Sheriff.

"Signed, sealed, and delivered in presence of

"C. M. STEVENS.

"J. R. BUXTON."

This certificate of sale was acknowledged as follows:

"Territory of Dakota, County of Richland--ss.: On the ninth day of May, in the year 1884, before me, a notary public in and for said county and territory, personally appeared S. B. Brigham, deputy-sheriff of the county of Richland, territory of Dakota, known to me to be the person who is described in and who executed the same as such deputy-sheriff, for the uses and purposes therein expressed, and for and on behalf of said Moses P. Propper, sheriff of said county.

[Seal.]

"JOSHUA R. BUXTON, Notary Public, Richland Co., D. T.

"Filed for record this ninth day of May, A. D. 1884, at 4 o'clock, P. M.

"J. M. RUGGLES, Register of Deeds."

From this sale no redemption was made, and May 12, 1885, the sheriff's deed of the premises was made to the respondent. This deed was made by R. N. Ink, sheriff of Richland county. The deed recites Ink's official standing, the description of the mortgage, the sale by the sheriff of Richland county to the mortgagee, the execution of the certificate of sale by the sheriff to the respondent, the fact of no redemption, and then conveys to the said John Wilson (respondent) all the estate, right, title, and interest which the said Mary E. Pitcher had on the fifteenth day of August, 1885, or at any time thereafter, in the said premises described in the deed. This deed is signed:

[Seal.]

"R. N. INK, Sheriff of Richland County, D. T."

--And is duly witnessed....