114 N.W. 728 | N.D. | 1908
This action was brought to determine adverse claims to certain real property in Ramsey county, the plaintiff alleging ownership in fee of the property in controversy. The complaint is in the statutory form ,and the' answer consists of a general denial, and also alleges title in fee in the defendants, and prays that title be quieted in them.
The facts are undisputed, and are as follows: On November 10, 1886, one Lewis Comonow was the owner in fee of the property in controversy, and on said date he and his wife Sarah, one of the defendants, executed and delivered an instrument in form a trust deed of said property to secure the payment of $557 according to the terms of a promissory note executed on that day by the said Lewis Comonow and payable to one William F. Baird. By the terms of the instrument the grantors in form sold and conveyed the premises in question to one William G. Nixon in trust, he being designated in the deed as trustee and party of the second part; and said instrument provides that in case of death, absence or inability to act of the said second party, then one Frank R. Davis is appointed as his succesor in trust, and William F. Baird is designated as party of the third part. The instrument provides that in case the grantors shall pay such indebtedness and all taxes,
The plaintiff evidently proceeded in such foreclosure proceedings upon the theory that said instrument was a mortgage containing a
Assuming the instrument to be a mortgage, it will not strengthen plaintiff’s case, for the very obvious reason that it contains no power of sale authorizing him as such assignee to foreclose by advertisement, hence his only remedy was by an action in equity. The power of sale runs to Nixon as trustee and his successor in trust, and no language is therein contained from which it can be argued that even Baird, the third party and beneficiary under the instrument, could exercise the power, and hence the plaintiff, who is merely his assignee, acquired no such right. Except as otherwise expressly provided by law, the power can be exercised by such person or persons only as may be selected by the grantor of such power. This is well settled. 28 Am. & Eng. Enc. Law, 767, and cases cited. Under the express provisions of our Revised Civil Code for 1905 (section 6159) a power of sale may be conferred by the mortgagor upon the mortgagee or any other person. Godfrey v. Monroe, supra. Furthermore, it is settled in this state that such a power can be exercised only by a person having the legal title to the mortgage. The fact that Baird assigned the note and his interest in the security to plaintiff is not sufficient, as Nixon was the legal owner and holder of the instrument. True he held the same merely in trust, and Baird was the beneficiary under such trust; but this did not constitute Baird the legal owner of the instrument, so as to vest in him the power to foreclose by advertisement. See Morris v. McKnight, 1 N. D. 266, 47 N. W. 375; Clark v. Mitchell, 81 Minn. 438, 84 N. W. 327, and cases cited; Bachus v. Burke, 48 Minn. 260, 51 N. W. 284. In Morris v. McKnight this court said: “From the adjudicated cases, and the wording of the statute, we conclude that, when a party seeks to foreclose a mortgage in this state by advertisemént, claiming such right as assignee, the record must show complete legal title to such mortgage in such assignee; otherwise such foreclosure will be a nullity. Any other rule would discourage bidding at such foreclosure sales, and result in the sacrifice of property, and the title so conveyed would remain under suspicion, and values be thereby
A still further obstacle in the way of plaintiff’s recovery is the evidence, which we think was properly admitted, showing that prior to the commencement of this action he parted with any interest he may have had in the property to one Ardery, and so far as the record discloses, he had no interest in the property at the date the action was brought. The case of Galbreath v. Payne, 12 N. D. 164, 96 N. W. 258, cited and relied upon by appellant’s counsel, is not in point as we construe the opinion. In the case at bar it does not appear, as it did in Galbreath v. Payne, that the property was adversely held by any one at the date of such transfer, or that plaintiff had not been in possession thereof or receiving the rents and profits therefrom for over one year prior to such transfer.
We conclude-, therefore, that plaintiff wholly failed to establish his ownership of the property as alleged. This it was incumbent upon him to do in order to make out his cause of action, as he must recover, if at all, upon the strength of his own title, and not because of the weakness of his adversary’s title. Conrad v. Adler, 13 N. D. 199, 100 N. W. 722, and cases cited. “It is only after plaintiff has shown a right in himself * * * that defendant’s title becomes material.” See, also, Hannah v. Chase, 4 N. D. 351, 61 N. W. 18, 50 Am. St. Rep. 656.
It follows that the judgment of the district court was correct, and should^ be affirmed in so far as it denied any relief to plaintiff. It does not follow, however, that defendants were entitled to have the title quited in them as was adjudged by the trial court. There was no attempt to show that the indebtedness or any portion thereof secured by the trust deed or mortgage was ever paid or tendered to the owner or holder of the note secured thereby, hence