Zimmerman v. Boynton

• Decision Date: 27 January 1930
• Citation: 229 N.W. 3,59 N.D. 112
• Court: North Dakota Supreme Court

229 N.W. 3

59 N.D. 112

J. A. ZIMMERMAN, Appellant, v. CLIFFORD C. BOYNTON, Respondent

Supreme Court of North Dakota

January 27, 1930

Appeal from the District Court of Emmons County Hutchinson, J.

Modified and affirmed.

Arthur B. Atkins, for appellant.

"By the Code a sheriff's deed is presumptive evidence of the regularity of all previous proceedings, and can be given in evidence without preliminary proof." Conger v Converse, 9 Iowa, 554.

"The sheriff's deed proves prima facie under said statute that the sale under which it was made was legal." Shields v. Miller, 9 Kan. 390.

"It has long been held that the recitals in the sheriff's deed are prima facie evidence of the facts therein set forth and that the introduction of the judgment under which the sale was made is not required to make a case." Ammerman v. Linton (Mo.) 214 S.W. 170; Everson v. State, 66 Neb. 154; Lindeberg v. Messman, 218 P. 844; Mill v. Moore, 113 S.W. 788.

"A presumption lies in favor of the regularity of the proceedings of any court of general jurisdiction. When such a court acts within its jurisdiction, every presumption is in favor of its judgment." 15 R.C.L. 879.

"Whenever the validity of an executed order of sale is drawn in question other than by appeal, writ of error, certiorari, or timely application to the court wherein the order was made, the attack is collateral." Shane v. Peoples, 25 N.D. 188, 141 N.W. 737.

I. F. Wagner, for respondent.

A denial of the complaint puts in issue the plaintiff's title. (Cal.) 71 P. 510; Hebden v. Bina, 17 N.D. 235, 116 N.W. 85.

"If a judgment creditor purchasing at an execution sale is not regarded as a bona fide purchaser, a party claiming under him is not an innocent purchaser and acquires no better title than that of the judgment creditor." 23 C.J. 766.

"A judgment void for want of jurisdiction is open to contradiction or impeachment in a collateral proceeding. By the weight of authority such want of jurisdiction must affirmatively appear on the face of the record." 32 C.J. 514.

"The lack of jurisdiction affirmatively appearing on the record, it may be taken advantage of on collateral attack." O'Malley v. Fricke, 80 N.W. 436.

Burr, J. Burke, Ch. J., and Nuessle, Birdzell, and Christianson, JJ., concur.

OPINION

BURR

This is an action to determine conflicting claims to the north half of section 19, township 135, range 74 in Emmons county. The complaint is in the statutory form, and alleges plaintiff is "the owner in fee simple" of this land, that defendant claims an interest in it, but has none. The defendant answers denying plaintiff's interest in the land and in a counterclaim sets up "that he is the fee title owner of the real estate in the plaintiff's complaint set forth and that he was such owner at all times mentioned in said complaint." This allegation is denied by the plaintiff. The trial court found "that the plaintiff has no title to, interest in, or lien or incumbrance upon" the land; and

"That the plaintiff went into possession of said premises hereinbefore and in said complaint described on or about the 1st day of June, 1928, by virtue of a sheriff's deed, executed by A. H. Fischer, as Sheriff of Emmons County, to this plaintiff, and that during all times herein mentioned the plaintiff, or his grantee [?], has been in possession and is now in possession of said premises;"

"That the plaintiff, while in possession under said sheriff's deed, in good faith, and without notice of any claims of the defendant, paid taxes upon said premises hereinbefore and in said complaint described in the sum of $ 489.09."

Judgment was ordered dismissing the action and giving the defendant his costs and disbursements. From the judgment entered the plaintiff appeals, and demands "a new trial of the entire case," in this court.

Plaintiff claims title to the premises under and by virtue of a sheriff's deed issued on execution sale in the case of Marshall Field and Company, a corporation, against this defendant, wherein an attempt was made to attack these premises, the defendant being then the owner of the land. The certificate of sale was assigned to this plaintiff and the sheriff's deed issued to him. It was under this deed plaintiff went into possession of the land and paid taxes thereon. Plaintiff introduced the certificate of sale, the assignment to him, his sheriff's deed, testimony as to possession and payment of taxes, and rested. The defendant moved to dismiss the action for failure to establish title. There was no ruling on this motion and defendant offered in evidence the judgment roll in the case of Marshall Field & Company against himself, on the theory that this record on its face showed the judgment rendered therein was null and void, and, as the plaintiff's title rested upon the validity of this judgment, he therefore had no title to the land. This was his sole defense. Plaintiff claims this is a collateral attack upon said judgment.

The defendant being the owner of the land at the time judgment was rendered against him in favor of Marshall Field & Company it was proper to offer the sheriff's deed in evidence in order to make out a prima facie case in favor of the plaintiff in this action. The deed was duly acknowledged and recorded. Our statute says:

"The deed shall be sufficient evidence of the legality of such sale, and the proceedings therein, until the contrary is proved, and shall vest in the purchaser or other party as aforesaid as good and perfect a title in the premises therein mentioned and described as was vested in the debtor at or after the time when such real property became liable to the satisfaction of the judgment."

See § 7763 of Compiled Laws. It is not urged that the deed did not contain the recitals required by the statute. In Bliss v. Waterbury, 27 S.D. 429, 131 N.W. 731, in a statute identical with ours, the court held that it was proper to admit such deed without further proof. As § 7916 of the Compiled Laws says:

"Every instrument conveying . . . real property acknowledged . . . as provided in the Civil Code, may . . . together with the certificate of acknowledgment or proof be read in evidence in an action or proceeding without further proof;" and as § 7763 says that such deed vests in the purchaser "as good and perfect a title in the premises" as was vested in the debtor, -- the only issue being whether the title of the debtor was divested by the proceedings in the Marshall Field and Company case against him -- a prima facie case was made by the plaintiff in offering the deed in evidence.

The record in the case of Marshall Field & Company shows that the plaintiff in that case had a claim of $ 969.85 against the defendant with interest, and attempted to obtain a judgment through constructive service. A writ of attachment was issued, attempted levy made on this land, summons was published after an affidavit for publication had been filed, the defendant defaulted, proof was made, order for judgment and judgment for $ 1,081.27 rendered, special execution against this land issued, the land sold for the amount of the judgment, and eventually a deed issued to the plaintiff in this case.

The alleged defects in the proceedings, claimed by the defendant to so vitiate them as to render the judgment void, are reduced to three. The defendant says: The "execution was not under the seal of the court," the affidavit for attachment was made upon information and belief; and "that there was no valid seizure of the land for the reason that no valid levy was made, the notice not stating the amount of the plaintiff's claim."

We dismiss the first alleged defect. The judgment roll in this case includes the special execution in the Marshall Field & Company case and bears the seal of the district court.

The order for judgment and the judgment in the case of Marshall Field & Company against this defendant contain recitals enumerating all necessary steps to obtain jurisdiction, including the filing of "an affidavit for attachment" and a "notice of levy." There is no pronouncement, however, to the effect that either was a valid or a sufficient instrument, but there is a statement that "the defendant is wholly in default herein by reason of his failure to serve or file notice of appearance, demurrer, or answer herein as is provided by law." It is clear, therefore, that if the court had jurisdiction of the subject-matter in the Marshall Field & Company case such recitals render the judgment conclusive against collateral attack. See Baird v. Williston, 58 N.D. 478, 226 N.W. 608. As said in Erker v. Deichert, 57 N.D. 474, 222 N.W. 615, "these recitals as to jurisdictional facts . . . are deemed to import absolute verity unless contradicted by other portions of the record."

Defendant says these recitals are contradicted by other portions of the record, and refers to the affidavit for attachment. In view of our holding as to the necessity for strict compliance with the statute in filing notice of levy of attachment we need not consider whether the affidavit for attachment in this case complies strictly with the requirements of law.

It is claimed the levy was void, the specific defect being that in the notice of levy the sheriff did not state the amount of plaintiff's claim as required by sub-div. 1 of § 7547 of the Compiled Laws.

Jurisdiction of the subject-matter is indispensable to the validity of a judgment and if there be no such jurisdiction the judgment is void. Fauntleroy v. Lum, 210 U.S. 230, 52 L. ed 1039, 28 S.Ct. 641; Sache v. Wallace (Sache v. Gillette) 101 Minn. 169, 11 L.R.A.(N.S.) 803, 118 Am. St. Rep. 612, 112 N.W. 386, 11 Ann. Cas. 348; 15 R.C.L. 844. The defendant says this lack of jurisdiction of the subject-matter is shown on the record...