122 N.W. 338 | N.D. | 1909
Action to cancel a sheriff’s certificate of sale on foreclosure of real estate by advertisement and the sheriff’s deed issued thereunder, and to enjoin the defendant from asserting any interest in the premises described, plaintiff had judgment and defendant appeals. It is unnecessary to quote the pleadings.
It appears by uncontradicted evidence that one Plannah K. Loring, a resident of Massachusetts, made a loan of $425 to one Homme Boschker, and took, as security therefor a mortgage upon the N. E. of section 22 in township 129 N. of range 76 W., in Emmons county, N. D. This mortgage, was executed and delivered by B.oschker to Loring about the 15th day of June, 1889, and recorded- in the office of the register of deeds of Emmons county, on the 2d day of August, 1889. The mortgagor is dead, and the plaintiff and respondent is his son. The appellant signed the mortgage note and two others given by other parties to Hannah K. Loring, as guarantor. Little or nothing was ever paid on the interest or taxes by the mortgagor, and no part of the principal has been paid. On the 9th day of September, 1898, the firm of Herreid & Williamson, of South Dakota, having been employed by the mortgagee for that purpose, issued a notice of foreclosure sale by advertisement to foreclose such mortgage, claiming that there was then due thereon the
May 6. 1905, the land not having been redeemed, the sheriff of Emmons county executed his deed therefor to appellant as assignee of the certificate of sale, and this deed was duly recorded. February 8, 1904, George W. Lynn, an attorney residing at Linton, N. D,, wrote a letter to Batchelder, the executor, as follows: Linton, N. D., Feb. 8, 1904. John M. Batchelder, Holliston, Mass. — Kind Sir: Your favor of the 2d inst. received and contents noted, and your promptness in answering my former letter is appreciated. A client of mine has requested that I pass upon the title of certain tracts of land in this county in which the late Hannah K. Loring had an estate prior to her dejath. I wish to state at this time that the purpose of my correspondence with you is not adverse in any manner to the interests of yourself or of the heirs and devisees of
The power of sale in the mortgage foreclosure is a peculiar one, quite unlike the usual power contained in mortgages. It runs to Hannah K. Loring, or agent. On the death of Mrs. Loring no one was left qualified under the terms of the power to continue or complete the foreclosure, and for the purposes of this case we may assume that the attempted foreclosure was invalid. We have held, in Winterberg v. Van De Vorste, 122 N. W. 866, that a sheriff’s certificate is personal property, and assignable by Mrs. Loring’s executor. It does not definitely appear whether the sheriff’s certificate of sale was held by the executor in Massachusetts or in this state, or whether it was assigned by him as executor under
•The respondent is not in position to invoke the aid of a court of equity to cancel the mortgage, or the sheriff’s certificate of sale and the deed issued thereunder, or to enjoin the mortgagee in possession from asserting his rights in the premises, without paying, or offering to pay, the amount due him. He not only does not come into this court with clean hands; but his hands are reeking with filth. He is attempting to avail himself of' the good offices of a court of equity while showing no disposition on his own part to follow the plain paths of equitable procedure long marked out. He appears to be wholly destitute of the most ordinary principles of fair play in his and his attorney’s dealings with appellant. This case is squarely within the rule announced in Tracy et al. v. Wheeler et al., 15 N. D. 248, 107 N. W. 68, 6 L. R. A. (N. S.) 516, and needs no further consideration. The appellant has not succeeded in estab7 fishing a clear title in himself. Hence we cannot quiet title as prayed for in his counterclaim. See Winterberg v. Van De Vorste, supra.
The judgment is reversed and the district court directed to dismiss the action.
Note — Time to bring suit limited in a fire insurance policy begins from the time of the fire. Travelers Insurance Co. v. Cal. Insurance Co., 1 N. D. 151. Bar of a statute in one state is available in another where it bars the debt. Rathbone v. Coe, 6 Dak. 93. Tax deed, void on its face, does not set the statute of limitation in motion. Heger v. DeGroat, 3 N. D. 354, 56 N. W. 150. Legislature may shorten the period of limitation, -provided a reasonable time to sue is afforded after the law is passed. Merchants Nat. Bank v. Braithwaite, 7 N. D. 358, 75 N. W. 244; Adams & Freese Co. v. Kermayer, 17 N. D. 302, 116 N. W. 98. Such time is reckoned from the passage, not