| N.D. | May 3, 1918
Lead Opinion
This action is for the cancelation of a mortgage lien. Both parties claim under a common grantor. The complaint is in effect that in 1904 Betelieuk made two mortgages, which have been assigned to Burke, and they have not been paid, and under a subsequent mortgage and the foreclosure of the same the plaintiff has become the owner of the title to the land in question. The plaintiff says to Burke: “My grantor gave you two prior mortgages which have not been paid though more than ten years have elapsed since such mortgages became due. Therefore I demand that your mortgages he canceled, with costs.”
Now, the plaintiff stands in the place of his mortgagor and for him says in effect: “It is more than ten years since I gave you those two prior mortgages, and I have failed to pay either principal or interest.
It seems quite ridiculous for a party to base a cause of action on an averment that he gave a mortgage and never paid it, and it is clearly contrary to the well-considered decisions of this court. Tracy v. Wheeler, 15 N.D. 248" court="N.D." date_filed="1906-04-25" href="https://app.midpage.ai/document/tracy-v-wheeler-6735775?utm_source=webapp" opinion_id="6735775">15 N. D. 248, 250, 6 L.R.A.(N.S.) 516, 107 N.W. 68" court="N.D." date_filed="1906-04-25" href="https://app.midpage.ai/document/tracy-v-wheeler-6735775?utm_source=webapp" opinion_id="6735775">107 N. W. 68.
But it is claimed that the law has been changed by chapter 3, Laws of 1909, which purposed to amend a section of chapter 5, Laws of 1901, in regard to a reply. It reads: “No reply shall be necessary on the part of the plaintiff except when the defendant in his answer claims a lien or encumbrance upon the property which prior to the commencement of the action was barred by the Statutes of Limitation or which shall have been discharged in bankruptcy. . . . The plaintiff may reply, setting up such defense and avail himself of the benefit thereof.” Now if it was the purpose of the statute to change the substantive law under the guise of changing the form of pleading, then it is not an amendment and the purpose of the act is not expressed by its title. The title of chapter 3, Laws of 1909, relates merely to a matter of pleading, — a reply, — and not to any substantive act. If the purpose of this act was to give a party a right to maintain an action to cancel an outlawed mortgage, then that purpose should have been expressed in its title. Doubtless it is competent for a party to show by his pleadings that he gave a mortgage and disregarded his obligations for ten years and “to avail himself of the benefit thereof.” But, as this court has held, such benefits amount to nothing and give no cause of action. It is vain for a party to plead the default of himself or' his grantor as a cause of action or of benefits. The law does not offer a reward for the violation of contract.
Judgment reversed.
Concurrence Opinion
(concurring). Without expressing any opinion upon the merits of the proposition advanced by respondent’s counsel as an original proposition, I concur in holding that the judgment of the trial court must be reversed by reason of the controlling precedents in this
In view of the argument, however, that § 152 of the Compiled Laws •of 1913 establishes a contrary rule, it seems to me proper to briefly state the reasons why this statute does not have the effect contended for. The portion of the statute relied upon is as follows: “No reply shall be necessary on the part of the plaintiff, except when the defendant in his answer claims a lien or encumbrance upon the properly, which, prior to the commencement of the action, was barred by the Statutes of Limitation, or which shall have been discharged in bankruptcy, or which constitutes only a cloud, the plaintiff may reply setting up such defense and avail himself of the benefit thereof.”
It will ho noted that the statute is entirely silent as to the effect of a reply setting up the Statute of Limitations or a discharge in bankruptcy. In so far as the right of the mortgagor to have the lien of such mortgage annulled is concerned, a reply setting up these defenses would clearly preclude the defendant mortgagee from recovering a personal judgment against him.
The statute in fact only carries into the action for the determination of adverse claims the general rule of pleading according to which one relying upon the Statute of Limitations or a discharge in bankruptcy for a defense is required to plead it. Other sections of the statute governing actions to determino adverse claims (§§ 8151 and 8153 particularly) clearly contemplate that in such action Hiere may be a personal judgment, as against a party to the proceeding, except a defendant served by publication and not appearing.
In order to establish a proper procedure whereby the plaintiff may avoid having a personal judgment entered against him upon a mortgage barred by the Statute of Limitations or bankruptcy, the statute in question was necessary, and it seems clear that when the statute is given this effect it secures to the plaintiff the “benefit” of such defense. If it had been intended to give to the plaintiff the right to have his title cleared of such a lien, in my opinion the language of the statute would have been much different from what it was.
Concurrence Opinion
(concurring specially).
I concur in the opinion prepared by Mr. Justice Robinson, for the
It is contended by counsel for the plaintiff that the legislature enacted chapter 3 of the Laws of 1909 (the statute quoted in the opinion prepared by Mr. Justice Robinson) for the purpose of abrogating the rule announced in Tracy v. Wheeler, supra. It is asserted that the statute was not called to the court’s attention in any of the subsequent cases wherein the rule announced in Tracy v. Wheeler, was reaffirmed, and is invoked for the first time in this case. Tho statute in question was adopted by tho legislature in 1909. The purpose of the enactment, as declared in tho title, was “to Amend § 7527 of the Code of 1905 Relating to Actions to Determine Conflicting Claims to Real Property.” The section relates merely to matter’s of procedure, viz., a reply in a statutory action to determine adverse claims. The rule announced in Tracy v. "Wheeler was one of substantive law, and it seems that the legislature cannot be said to have intended to change this rule by enacting a section relating to a matter of procedure in a statutory action to determine adverse claims. The statute relating to such action w^as enacted for the specific puipose of authorizing that particular form of action. The section under consideration was enacted for the purpose of prescribing certain rules of procedure therein. It should be limited to and apjdiod for the purpose for which it w’as enacted. Man
Rehearing
On Petition for Rehearing.
Plaintiff has filed a petition for rehearing wherein it is contended that the former opinion overlooked and failed to give proper consideration and effect to the statute enacted by the legislature in 1909. This statute is quoted in the opinion prepared by Mr. Justice Robinson. It is argued that as this statute was enacted after the decision was handed down in Tracy v. Wheeler, 15 N. D. 218, 6 L.R.A.(N.S.) 516, 107 N. W. 68, that the legislature intended to abrogate the rule announced in that decision.- It is said that “the legislative intent by the amendment was not to adhere to the old rule, but to obliterate it.”
It is stated that the legislature amended the statute at the first opportunity after the decision in Tracy v. Wheeler was handed down. This argument is unsound and based upon erroneous premises. The decision in Tracy v. Wheeler was handed down in April, 1906. The next legislative assembly convened in January, 1907, but the statute upon which plaintiff relies was not enacted until 1909. The statute does not purport to have any application in any action except one to determine adverse claims.' Its avowed purpose is to prescribe a rale of procedure in such actions. The case of Tracy v. Wheeler was not an action to determine adverse claims. It was an equitable action to cancel a specific mortgage. The complaint described the specific mortgage sought to be canceled with particularity, and gave the book and page of its record in the office of the register of deeds. The prayer for judgment was not “that the defendants be required to set forth their adverse claims, and that the validity, superiority, and priority thereof be determined” (as in actions to determine adverse claims), but the prayer was that the lien or encumbrance claimed by virtue of the specific mortgage described in the complaint be adjudged null and
In order that there may be no misunderstanding of our position with respect to the propositions involved in this case, we deem it proper to say that all the members of the court are agreed that the legislature had no intention of changing the rule announced in Tracy v. Wheeler et al. by the enactment of the statute relied upon by the plaintiff. And the majority of the court are agreed that the rule announced in that decision has become so well established that it ought not to be altered or abrogated by a judicial decision. If the rule is wrong, let the legislature abrogate it. The dissenting member of the court is, however, of the opinion that the rule announced in Tracy v. Wheeler is so fundamentally wrong that that decision and the subsequent decisions following it ought to be overruled.
Dissenting Opinion
I dissent.