Winterberg v. Van de Vorste
| Decision Date | 29 June 1909 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Emmons County; Winchester, J.
Action by Annie Winterberg suing for the use and benefit of George W. Lynn, against Johannes Van de Vorste. Judgment for plaintiff, and defendant appeals.
Reversed.
N. A Armstrong and John H. Perry, for appelant.
Sheriff's certificate is personal property and foreign executor had jurisdiction over it. Joy v. Elton, 83 N.W. 875, 9 N.D. 428
The various deeds are void for champerty. Revised Codes 1905 Sec. 8733; Brynjolfson v. Dagner, 109 N.W. 320; Galbraith v. Payne, 12 N.D. 164; Schneller v Plankinton, 12 N.D. 561.
No claims can be made thereunder. Higbee v. Daeley, 109 N.W. 318; Bausman v. Faue, 45 Minn. 412, 48 N.W. 13; Shelby v. Bowden, 94 N.W. 416.
George W. Lynn, for respondent.
Death of mortgagee revoked attorney's authority to foreclose. Brown v. Skotland, 12 N.D. 455, 97 N.W. 543; Scruggs v. Driver, 31 Ala. 274; Harper v. Little, 11 Am. Dec. 25; McDonald v. Hannah, 51 F. 73.
Action prosecuted in name of original grantor for beneficial, plaintiff, is not champertous. Galbraith v. Paine et al., 12 N.D. 164, 96 N.W. 258; Schneller v. Plankinton, 12 N.D. 561, 98 N.W. 77.
This is one of the cases now becoming very numerous in the courts of this state relating to speculation in defective titles to real estate. The facts may be summarized as follows: Annie Winterberg was, on the 1st day of May, 1889, the owner in fee of the S.W. I/4 of section 35, township 130 N., range 77 W., in Emmons county, and on that day executed and delivered a mortgage thereon as security for her note, payable in five years to one Hannah K. Loring, a resident of Massachusetts. This mortgage was recorded on the 5th day of June, 1889, in the office of the register of deeds of Emmons county, and contained a power of sale authorizing the mortgagee, or her agent, to foreclose and sell at public auction in case of default. Default was made by failure to pay the principal or any interest or taxes, and the mortgagee authorized the firm of Herreid & Williamson to foreclose such mortgage.
by advertisement under the power of sale, and accordingly first publication of notice of foreclosure was made, as provided by law on the 23d day of September, 1898. Between the dates of the first and second publications the mortgagee, Hannah K. Loring, died, and, apparently without knowledge of her death, publication of the notice was continued for the full time required by statute, and on the 5th day of November, 1898, the date fixed in the notice for sale of the premises, sale was made by the sheriff of Emmons county, and, Herreid & Williamson, being the highest bidders, the sale was made, and the sheriff's certificate executed in the name of said Loring as purchaser. Such certificate, and the other papers required and customary in such cases, were delivered to said attorneys, and recorded on the 14th day of November, 1898. The death of Hannah K. Loring occurred on the 24th day of September, 1898. She left a last will and testament wherein she constituted John M. Batchelder, of the county of Middlesex and state of Massachusetts the executor thereof. Such proceedings were had in the probate court of Middlesex county that on the 22d day of November, 1899, her will was admitted to probate, and said Batchelder was on the same day duly appointed as executor, and forth-with qualified as such. It also appears that he was appointed and acted after her death, and before qualifying as executor, as conservator of her estate. The certificate of sale went into the possession of said Batchelder as executor, and on the 20th day of February, 1900, he sold and assigned the same for the sum of $ 457 to one J. E. Horton, by an instrument in writing, which was duly recorded in the office of the register of deeds of Emmons county, on the 30th day of March, 1900. The laws of Massachusetts are pleaded and are offered in evidence, and show that under such law said sheriff's certificate of sale was personal property, and that the executor was authorized to convey the same without procuring an order of sale from the courts of Massachusetts. No redemption was made, and on the 1st day of May, 1900, the sheriff of Emmons county executed and delivered to said Horton the usual sheriff's deed which, it is claimed, conveyed said real estate to Horton. Such deed was recorded in Emmons county on the 1st day of May, 1900, an thereafter, and on the same day, Horton conveyed by warranty deed, which was duly recorded on the 8th day of May, 1900, to the defendant and appellant herein, who since that time has been in exclusive possession of the premises. Annie Winterberg abandoned the premises at or about the time of the execution of the mortgage, and, although she knew of the foreclosure proceedings, never raised any objection thereto, or made any claim of their invalidity, or that she retained any title in the premises. On the 13th day of April, 1905, on the representation and at the request of George W. Lynn, for whose use and benefit this action is brought, for the consideration of $ 20, Annie Winterberg quitclaimed said premises to one Wetherby, and it is alleged that she did so by reason of the promise made by Lynn, acting for Wetherby, that he would not disturb the title or possession of appellant; that such promise was false, and was fraudulently made for the purpose of obtaining such deed. On February 8, 1904, Lynn wrote the following letter to said Batchelder: And by means thereof, and on payment of $ 2.50 to each devisee, obtained quitclaim deeds from all the devisees under the will of said Hannah K. Loring to Wetherby, who thereafter deeded to Lynn by quitclaim deed. Neither Lynn nor Wetherby have ever been in possession of nor received any rents or profits from said real estate. Annie Winterberg has at all times since the execution and delivery of such mortgage been an actual resident of the state of North Dakota. The answer demands affirmative relief, that said certificate of such foreclosure sale, and all foreclosure proceedings, be reformed to show said Batchelder as executor to be the purchaser at said sale, and that the same be held valid and be confirmed, and that said sheriff's deed be validated, and that the defendant and appellant be adjudged to be the owner in fee of such real estate, and for general relief. On the trial evidence was received showing the circumstances and facts surrounding the several transactions, most of which are in harmony with the statements of the answer. The court entered judgment against the defendant, adjudging that plaintiff is the absolute owner of the premises described, and quieting title in him, and directing the issuance of execution to place him in possession thereof, and for costs. From such judgment defendant appeals, and demands a trial de novo in this court.
It affirmatively appears from the testimony of Annie Winterberg the mortgagor, that she abandoned the mortgaged premises, and surrendered the same immediately after executing the mortgage, and that she has never since made any claim to title therein. When Lynn called upon her and requested her to sign the previously prepared deed running to Wetherby, he informed her that he sought it to make the title a little clearer. She told him that she did not know that she had any claim on it any more. He informed her that she had a little claim on it yet. She testifies that at that time she made no claim to any interest in it, and that she told Lynn that she did not want to...
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