124 N.W. 79 | N.D. | 1909
Lead Opinion
The complaint of' the plaintiff states the following facts: On the 26th day of April, 1901, the defendant and
The complaint also contains the following.,allegations: “That, by reason of the premises, defendant’s right to .said premises and the possession thereof have ended, and the plaintiff is the owner in fee simple and entitled to the immediate possession of said premises and the whole thereof, and on information and belief that the said defendant claims certain estates or interests in, or lien, or incumbrances upon said premises adverse to the plaintiff.” The prayer for relief is in the following language: “Wherefore, plaintiff prays judgment that it be adjudged ,and decreed that-
The defendant appeared and answered, setting forth the following facts: After admitting the making of the contract, and that crops were grown on said land during the years 1903 and 1904, and that no payments were made upon said contract except those set forth in the complaint, and that the defendant did not accept the return of the promissory note, send that the notices set forth in the complaint were duly served upo'q. the defendant, the answer alleges that all defaults were waived by the .plaintiff by reason of his delay in forfeiting said contract. The answer further contains a denial that the plaintiff or said Brown is, or ever was, the owner of said premises or in possession thereof. The answer further alleges that the defendant is now the owner in fee simple of said land, by virtue of a conveyance thereof to him from one Verone Deutz, who was the owner thereof on the 19th day of December, 1903, on which day she conveyed the same to this defendant; that said Verone Deutz was the absolute owner of said premises by virtue of having title thereto, through regular conveyances in regular chain from Howard, the original owner and patentee of said land. The answer demands the following relief: “Wherefore, the defendant asks that he be decreed to be the owner in fee simple of the above described land; that the plaintiff be decreed to have no interest in said property; that the title to said property be quieted in said defendant; that the defendant have possession of the promissory note, for his costs and disbursements herein, and for such other and further relief as the court deems equitable.”
The complaint sets forth a cause of áction to determine adverse claims. The facts show that the plaintiff claims to be the absolute owner of this land, through a sheriff’s deed under a foreclosure of the Howard mortgage, and alleges cancellation and forfeiture of the
The defendant answers by setting forth absolute ownership in himself, and asks for affirmative relief; that the title be quieted in him by virtue of such ownership under the Deutz deed. The district court made findings of fact and conclusions of law in favor of the plaintiff and against the defendant, and ordered judgment in favor of plaintiff quieting the- title in him, and ordered that the plaintiff have possession of said premises. The judgment or decree did not adjudge that the plaintiff have possession of the premises. The defendant has appealed from the judgment entered pursuant to such findings of fact and conclusions of law, and demands a review of all the evidence under the provisions of section 7229, Revised Codes 1905.
The following facts are conceded: Both parties claim title through Howard as their source of title, and he was the patentee of the land from the United States government. Plaintiff claims through a sheriff’s deed under foreclosure of a mortgage given by said Howard. This foreclosure is conceded to have been invalid. It is not disputed that Brown was in possession of the premises under the sheriff’s deed, or that he placed the defendant, Scharf, in possession of said land under the executory contract for the purchase of said land, set forth in the plaintiff’s complaint. It is also now conceded that Scharf has never been out of such possession under said contract since April 26, 1901, when said contract was entered into. No person has ever been in actual possession of said land except the plaintiff, or Brown, or the defendant, since the year 1886, when Howard left said premises. On June 1, 1901, one, Joseph Blass, who continued to be the owner of the fee to this land on account of said invalid foreclosure, conveyed the same to one Walters, for a nominal' consideration of $5.50, and, on the
Conceding, for the purpose of this case only, that the Brown deed was subsequent to the Walters deed because held by the bank until the consideration was paid and until after the Walters deed was delivered, we cannot agree with the conclusion that the Brown deed was a nullity. When the Walters deed was executed.and delivered) neither Blass nor Walters was in possession of the land. The possession was. actually in Scharf, and his grantor, Brown. This being true, the Walters deed was void as to the persons in possession and holding adversely, under the decision of this court in Galbraith v. Payne, 12 N. D. 164, 96 N. W. 258. So far as the persons in possession of the land are concerned, the deed conveyed nothing, and, as against these parties, the title was still in Blass. ■ After the delivery of the deed to Brown the title passed to him, as the possession of Scharf was not adverse • to him. Scharf’s possession was Brown’s possesion. Such possession was held solely by virtue of'the contract for the purchase-of the land between Brown and Scharf. That contract was still in force, and there is no contention that payments had been fully made thereon, or that the terms'- of same had been fully complied with.
In the Matter of Department of Parks, 73 N. Y. 560, the court said: “But Dally entei'ed into possession under Harxds. Whatever he possessed was clearly under his parol agreement of purchase. He did not claim the land in hostility to Harris, but all he claimed, and all he could claim, was such right as his agreement gave him. It is too well settled to be disputed that one who enters upon land under a mere agreement to purchase does not hold the land adversely as against the vendor until his agreement has been fully performed, so that he has become entitled to a conveyance.” Atxthorities holding that the possession of the vendee is under the vendor in such contracts, and what constitutes adverse possession un
Another contention is that Brown was unable to give a good title to this land and could not, therefore, comply with the terms of the contract, and that this amounted to a constructive eviction of Scharf from the premises, and, having been thus constructively evicted, he had a right to buy the outstanding title to said land from Deutz; in other words, it is contended that, in the suit which was pending between Deutz as plaintiff, and Brown, Scharf, and others, as defendants, Deutz must inevitably have judgment for the ownership and possession of the land, and that Brown and Scharf would be ousted from the possession of this land under the Deutz deed. This does not at all follow. The Deutz deed was procured through Walters, and the deed from Blass to Walters was void'on account of adverse possession of Brown and Scharf. It follows from this that there was no title in Deutz, inasmuch as the title to this land had previously been conveyed to Brown by a valid deed from Blass, and the Deutz deed was therefore a nullity. If the Deutz suit had proceeded to judgment in the place of having been dismissed, there is no room for the statement that Deutz would have prevailed in the litigation. Furthermore, it is undisputed that Brown, in order to avoid the possibility of a decision that the Blass deed was void as to him, had procured a deed directly from Blass to Scharf, which would have been turned over to Scharf if he had not taken a deed from Deutz. By repudiating the contract with Brown and taking a void, conveyance from Deutz, he acted at his own -risk, and is not entitled to any equitable consideration by reason of the fact that he 'secured no rights to this land from Deutz. As already shown, the contention that Brown could not give a good title fails, inasmuch as the Blass deed made Brown’s title good in view of his legal possession of the land.
There being no constructive eviction, and Scharf’s possession not being adverse to Brown, but being legally Brown’s possession, defendant, being in possession under his contract only, could not buy or take Walters’ title as long as the contract with Brown was in force, and the Walters deed would have been unavailing to Scharf, but would have inured to Brown’s benefit if it had been a valid deed. Some cases seem to distinguish between adverse possession rendering conveyance by those out of possession champertous and adverse possession for a period sufficient to give title by
The defendant earnestly contends for a disaffirmance and .reversal of Galbraith v. Payne, supra. That decision is criticized as.recognizing a rule, that has become obsolete -and not now within the reason of the rule as existing when adopted. If we could concede all that is contended for by the appellant, our duty would be clear to uphold the Galbraith decision. Not only do we deem the rule binding under existing conditions, but it is well sustained, by the opinion in the case. That decision has done-much towards permanently quieting titles of those in possession under technically defective titles as against conveyances of a technically legal title by those out of possession. That case has been repeatedly cited in subsequent cases in this court, and has become a rule of procedure in respect to the property rights that should not be changed without some reason other than that a different rule is preferred. Unless shown to be wrong, stability in decisions 'should -be adhered to, or chaos must- inevitably follow in decisions of courts, in view of changes always certain to come in the membership of courts. However, if .we were to concede all that is said against that decision, the appeal for another rule should be made to the legislature and not. to the courts. Three sessions of the legislature have passed since that decision, without even an attempt to change the rule as to the effect of selling pretended titles as against those in possession. We are satisfied with the decision in that case, and do not deem it necessary to say anything further in its favor. -
The judgment is affirmed.
Dissenting Opinion
(dissenting). I am firm in the conviction that the majority opinion is unsound for several reasons and wholly without support in, and contrary to, the authorities. I shall endeavor, as briefly as possible, to prove the correctness of my assertion.
Conceding the correctness of all that is said in the opinion with reference to the case of Galbraith v. Payne, and the rule there announced it is entirely clear to my mind that the majority opinion wholly misapplies such rule. I assert, without fear of successful contradiction, that no court ever before invoked such rule in behalf of a plaintiff to enable him to make out his case as to proof of title for the purpose of quieting such title. That is exactly what is done in the majority opinion as I read it. The paintiff has come into a court of equity alleging title and asking that same be quieted in him. Pie proves such title only by invoking the rule against champerty, and nevertheless, strange as it may 'seem, is permitted to recover. Without the aid of such rule he must fail. Pie cannot recover on the weakness of his adversary’s title, but solely on the strength of his own title. If, for any reason, the rule of the Galbraith case, cannot be applied in his favor, plaintiff’s case must fail, for it is undisputed that Blass’ deed to Walters was both delivered and recorded prior to the deed to Brown. There are at least two reasons why the rule of the Galbraith case, conceding, for the purpose of argument, that such rule has not been abrogated in this state, cannot he invoked in plaintiff’s favor. First, such rule can never be invoked by a plaintiff; and, second, if it could, still plaintiff is not in a position to invoke it as he' was not, at the time the deed from Blass to Walters was delivered, in the actual adverse possession of the land within such rule. After an exhaustive research I can find no authority permitting a plaintiff to invoke such rule. On the contrary the universal holding of the courts, as far- as I have been enabled to discover, is to the effect that such .rule may be invoked only by a defendant, and by him solely, for the purpose of protecting his actual adverse pos- . session. Scharf is the only person who could have invoked such rule. Smith v. Paxton, 4 Dana (Ky.) 391; Kenede v. Gardner, 4 Hill (N. Y.) 469. “The person in possession of land cannot
The case of Smith v. Paxton, 4 Dana (Ky.) 391, is a pioneer case in this country on this point, and its soundness has never been questioned. I quote: “The whole statute contemplates a protection to the occupant, as a defendant, in a controversy with a plaintiff who is seeking, as such, to disturb his possession. * * * While the legislature was vigilant in prescribing the form, and providing the modes by which the defendant, as such — the possessor— might avail himself of the defense afforded by the statute in bar of the suit or action of the adversary claimant, no provision whatever is made to enable him to avail himself of its provisions, in the prosecution of a suit. And none of the guards provided by the statute are made to apply to a plaintiff. And while the fourth section inhibits any right of action or suit in behalf of either of the contracting parties, who have violated the provisions of the second section, no restriction is imposed upon him as defendant, and no penalty denounced against his rights of defense. * * * It clearly points to the protection of the occupant only. And the provisions in the foregoing as well as the following sections of the statute were intended to throw around him such guards as would enable him successfully to defend his occupancy from outstanding adversary claims. We are therefore clearly of opinion that the forfeiture in the second section was intended as a shield to the possession, and not as a sword; as a weapon of defense, and not of offense; as a protection against the remedy sought by a plaintiff, and not as an instrument wherewith to assail the possession of others.” In the majority opinion the plaintiff is permitted to invoke such rule affirmatively — not defensively — in order to establish his title, and for the sole purpose of obtaining the affirmative equitable relief of quieting such title. Not only this, but what is still more erroneous, he is permitted to do this as against the actual occupant of the land. With due deference to the majority of the court, I most emphatically protest against such a misapplication of the rule. In the Galbraith Case, and the subsequent cases in this court adhering to the rule there announced, such rule was correctly applied in so far as the proposition here under consideration is concerned.
Aside from the foregoing opinion of this court the authorities are all to the contrary, as far as I can discover. I here cite a few of them: Heard v. Phillips, 101 Ga. 691, 31 S. E. 216, 44 L. R. A. 369; Slatton v. Tenn. C. I., etc., Co., 109 Tenn. 415, 75 S. W. 926; Boone v. Chiles 10 Pet. 177, 9 L. Ed. 388; 1 Warvelle on Vendors, pp. 201-202. In Boone v. Chiles, supra, the Supreme Court of the United States, in speaking of the legal relations between a vendor and a vendee under a contract for a deed, said: “Equity makes the vendor without deed a trustee to the vendee for the conveyance of the title. The vendee is a trustee for the payment of the purchase money, and the performance of the terms of the purchase. But a vendee is in no sense the trustee of the vendor as to the possession of the property sold. The vendee claims and holds it in his own right, for his own benefit, subject to no right of the vendor, save the terms which the contract imposes. His possession is therefore, adverse as to the property, but friendly as •to the performance of the conditions of purchase. In virtue of his legal title, the vendor has a.legal right of possession, but equity will not permit him to assert it unless the vendee has violated the contract.- He will be enjoined if the vendee performs it.” In Heard v. Phillips, supra, the Georgia court said: “It has several times been ruled by this court that the possession of one holding under a bond for titles to land is not adverse to the obligor of the bond, or the representatives upon his estate, in the sense that such possession may be the foundation of a prescription as against such obligor of his estate. Hines v. Rutherford, 67 Ga. 606; Allen v. Napier, 75 Ga. 275; Hawkins v. Dearing, 93 Ga. 108 (19 S. E. 717). Indeed, a vendee under a bond or contract for conveyance, though placed in possession by the vendor, does not hold adversely to the latter. By the very fact of taking under a bond or contract for a deed to be thereafter executed by the vendor, a purchaser recognizes the title of the vendor, and acknowledges himself
It is in effect asserted in the majority opinion that by entering into the contract of purchase from Brown, and by going into possession under such contract, defendant is estopped to question plaintiff’s title. I do not think the doctrine of estoppel can be extended to such length; if it can, the plaintiff, by mere force of an estoppel, would acquire a fee interest in the property, something which he did not theretofore possess. There is no legal reason why defendant’s good faith conduct in entering into the contract upon the assumption that Brown had the title and right to sell should operate to confer upon Brown an advantage not theretofore possessed by him. It is no doubt true that plaintiff’s rights as a mortgagee should remain intact. Blass held subject to such rights, and defendant, through the Deutz deed, merely succeeded to Blass’' title. The authorities cited by respondent’s counsel in support of their contention that defendant will not be permitted to purchase an outstanding title and assert the same in hostility to the title of his vendor are, with a few exceptions, ejectment cases, and hence not in point. Of course, in such an action the defendant,' who has gone into possession under plaintiff’s title and in recognition thereof, is estopped to deny such title in an action involving merely the right to possession. In such an action the vendee is estopped under the same principles that a tenant is estopped to deny his landlord’s title. If plaintiff had sued for the possession merely, his right to recover would have been clear, but instead of doing so he brought an action to determine 'adverse -claims in which he asks that his alleged title be quieted, and that defendant be
If plaintiff had sued merely for possession, defendant would have been estopped to deny his title, but he goes much further, and asks that defendant be required to set forth all his adverse claims to the property, “and that the validity, superiority and priority thereof
In the opinion in the Galbraith case, among other things, it is said : “An examination of the authorities will show that, while a deed of a disseisee conveys no title which can be enforced in the name of the grantee against the disseisor or his privies, they go no further. It is now held that such deed is good against the grantor, and that it entitles the grantee to an action to recover the land, in the name of the grantor, but to his own use, even against the disseisor. * * * By executing and delivering the deed the grantor impliedly authorizes the grantee to use his name in an action to recover the land, and for that purpose the grantor is a real party in interest, within'the meaning of the statute requiring every action to be prosecuted in the name of the real party in interest. * * * It is true the common-law doctrine and statutes declaratory thereof seem to be in increasing disfavor in a number of states, on account of. the embarrassing restrictions placed upon the right of free alienation.”
If the common-law doctrine is still in force here, the above statement of the law is, no doubt, strictly correct, although its effect is to recognize what must to every legal mind be deemed extremely technical rules. To say that a grantor’s deed, whose property is adversely held, is perfectly valid as between him and his grantee and
But ic is said in the Galbraith case that this common-low doctrine was not abrogated by the Revised Codes adopted in 1895, and that the rule is still in force in this state. The opinion speaks of the “omission” from the Codes of 1895 of sections 3303, 4870, Comp. Laws of the territory (being section 681, Civ. Code, and section 74, Code Civ. Proc. 1877), and then proceeds to hold that said sections were merely declaratory of the common law, and hence their “omission” from the Codes “did not affect the law as it theretofore existed.” These sections were not only omitted in the 1895 Codes but were expressly repealed thereby (see page 1517, Rev. Codes 1895), and if we are to credit the legislative assembly with any purpose whatever in repealing said sections, we must credit it with an intent, at least, to change the rule of the common law which, up to that time, had been perpetuated in force here by virtue of said sections, and which was so palpably unreasonable and useless, As argued by appellant’s counsel, “it is absurd to say that the legislature was engaged in the repeal of these statutes for the purpose of perpetuating the same rule of law which they enunciated. It would convict the legislative body of imbecility to say that they were repealing statutes simply that the same law might be perpetuated.” The express repeal of a law indicates an
Section 3303 (section 681, Civ. Code 1877) : “Every grant of real property, * * * is void, if at the time of the delivery thereof, such real property is in the actual possession of a person claiming under a title adverse to that of the grantor.”
Section 4870 (section 74, Civ. Proc. 1877) : “Every action must be prosecuted in the name of the real party in interest. * * * But an action may be maintained by a grantee of land in the name of a grantor, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision.”
How could the legislative purpose to abrogate such rule be made more manifest than by the express repeal of such sections, where nothing of a similar nature was enacted to take their place? With due deference to the ability of the distinguished members of the court as constituted at the time' Galbraith v. Payne was decided, I disagree with the views therein announced. Such decision does not constitute a rule of property, as it merely relates to remedial rights. It relates simply to a rule of practice -as to the person in whose name the action to recover the land or to quiet title shall be prosecuted. As before stated the decision recognizes the fact that the deed is valid as between the grantor and grantee and operates to convey title, but that an action against the adverse holder must be brought and prosecuted in the grantor’s name, and that the successful assertion of title by the grantee in the grantor’s name at once inures to the benefit of the grantee. As directly in point, holding that it relates merely to the remedy, see Campbell v. Eq. Loan & Trust Co., 17 S. D. 31, 94 N. W. 401, and cases cited.
We, then, have this situation: The legislature in 1895 (Rev. Codes 1895, page 1517, sections 2, 3) expressly repealed and abrogated section 681, Civ. Code, and section 74, Code Civ. Proc. 1877; but continued without change section 189 of the Penal Code as section 7002, Rev. Codes 1895. By section 7738 of the Revised Codes of 1895 it is provided: “The provisions of this Code so far as they are the same as existing statutes, must be construed as continuations thereof, and not as new enactments.” The
Construing section 8733, Rev. Codes 1905, in the light of the express repeal of the other sections and the evident intent of the legislature in thus abrogating the old rule, making such conveyances void and requiring the grantee to sue in the grantor’s name,
In my opinion the situation of the parties and their respective rights are as follows: Plaintiff is merely a mortgagee and, as such, is entitled to the possession which defendant obtained from Brown under the contract. Defendant took from Deutz subject to such mortgage, and is not entitled to any affirmative equitable relief without offering to do equity. Tracy v. Wheeler, 15 N. D. 248, 107 N. W. 68, 6 L. R. A. (N. S.) 516. He makes no such offer but relies wholly upon his rights under the deed. What are his rights thereunder? Blass held the legal title, but the same was held subject to such mortgage indebtedness. Having surrendered the possession to the mortgagee, Blass’ legal title merely conferred upon him and his grantee a right of redemption. Defendant agreed to purchase, and Brown agreed to sell, the land for the consideration of $1,600. Plaintiff purchased from Brown subject to such contract, and therefore, if such contract had not been forfeited, plaintiff, as such mortgagee, would be entitled to -receive from defendant only this sum with interest, less the payments made. It is clear, however, that such contract has been terminated by a valid forfeiture, hence defendant is entitled to no affirmative relief in this action. His remedy is an action to redeem from the Howard mortgage by paying the plaintiff the amount justly due him thereon. Appellant’s counsel do not contend that such contract is still in force. In fact, their entire printed brief and argument is directed to the proposition that appellant had a right to and did, in fact, acquire the title to the land in dispute, and that Brown had no title thereto, but merely a mortgage lien thereon. The attitude of the appellant at all times since he received the deed from Deutz has been that of utter hostility to the contract. He concededly has at all times since then wholly ignored such contract and the right of Brown or plaintiff thereunder, having at no time shown a desire -or willingness to make good his defaults. Plaintiff acted strictly within his rights in declaring the forfeiture and defendant has no just cause for complaint.
My conclusion, therefore, is that plaintiff, having no title, cánnot maintain this action to quiet title, and that although defendant has the title he holds the same subject to the Howard mortgage and to plaintiff’s right as mortgagee to the possession of the land, and is not entitled to the equitable relief prayed for in his answer, or to any equitable relief in this action, having, failed to tender or offer to do equity by satisfying such mortgage indebtedness. The judgment should accordingly be reversed and the action dismissed.
Concurrence Opinion
I concur in the views of Judge Fisk upon the first point, but choose to express no opinion upon the other questions involved. I think, however, that plaintiff should in this action, be restored to the possession as mortgagee, and the judgment appealed from modified in this respect.
