77 N.W. 615 | N.D. | 1898
This action originated in Justice Court, was appealed to the District Court, and a trial there resulted in a directed verdict for plaintiff. A motion for a new trial was denied, and defendant appeals from the order. The defendant, as sheriff of Grand Forks county, acting through a deputy, sold the church property belonging to the plaintiff, under a statutory foreclosure of a mortgage upon such property executed by plaintiff’s grantor. The property sold for the full amount claimed in the notice of sale, being the amount due upon the note secured by the mortgage and an attorney’s fee of $100, together with the costs of sale. The property was purchased by the mortgagee. The statute then in force (chapter 16, Laws 1889) declared that for foreclosing a mortgage upon real estate, where the same was done by a resident attorney, there should be allowed an attorney’s fee of “ten dollars, and no more.” Plaintiff, claiming that the property sold for $90 more than was due thereon, demanded such sum from defendant, and, upon his failure to pay the same, brought this action. The answer was in denial, and especially denied plaintiff’s corporate capacity. It admitted the demand, and set up full satisfaction and settlement of the claim by the mortgagee. The answer was not verified. At the trial in Justice Court, plaintiff offered no evidence of its corporate capacity. The answer was filed December 28, 1895. The case was not tried until after January 1st, 1896, the date at which the Revised Codes went into effect. Under the statute in force prior to that time (section 2908, Comp. Laws), a corporation plaintiff was required -to prove its corporate capacity where it was specifically denied by the answer. Under section 5754, Rev. Codes, no proof of corporate existence was required, unless such existence was denied under oath. The justice ruled that, insomuch as the answer was filed before the new law went into effect, its provisions could not control at the trial, and dismissed the case for want of proof of corporate existence. After plaintiff appealed to the District Court, the mortgagee, a corporation, was permitted to inter
The second point urged relates to rulings upon evidence. Plaintiff, over defendant’s objections, introduced in evidence the record of the foreclosure. We need not dwell on this feature of the case. The statutes then in force specifically make the record that was offered — to-wit, the record of the duplicate certificate of sale made by the person who conducted the same, the affidavit of publication of notice of sale, and the affidavit of sale made pursuant to such notice. — • prima facie evidence of the facts therein contained. These records show the amount that was claimed to be due upon the mortgage. They show the fact of sale, and show the amount for which the property was sold, and show thé items that were included in such amount. The sale was made for the amount claimed in the notice of sale, with interest to the date of sale, and an attorney’s fee of $100, and the proper costs. It is urged that this does not show that the propery was sold for more than was legally collectible under the mortgage. We think it makes a prkna facie case, and the defendant did not attempt to dispute it. But the record shows that the sale was made by the defendant as sheriff, by one George A. Bangs as deputy. It is urged that the record is incompetent to bind defendant until it is shown that George A. Bangs was deputy sheriff. Under the statute, the affidavit of sale must be made by the party who made the sale; and that, under section 5416, Comp. Laws, must be either the person appointed by the mortgage to make the sale, or the sheriff of the county, or his deputy. .It is patent that an affidavit of sale that did not show on its face that the sale was made by some
It is urged that as plaintiff in this case is the grantee of the original mortgagee, and took subject to the mortgage, it cannot take advantage of the attorney’s fee, but must pay the same as stipulated in the mortgage. Defendant claims that where a subsequent grantee assumes and promises to pay an existing mortgage, and the amount is treated as a part of the purchase price, that such grantee cannot, when called upon to pay the mo'rtgage, set up as a defense that the mortgage transaction was usurious as between the original mortgagor and mortgagee. We need not stop to discuss the legal principles upon which this ruling has been made. They will occurr to every lawyer. Those principles cannot apply here for two reasons: This plaintiff did not expressly assume or promise to pay the mortgage. There is nothing to indicate that the amount was treated as a part of the purchase price. The covenant against incumbrances in plaintiff’s deed excepts this mortgage, but that is the only reference to it. Another conclusive answer to .this contention is the fact that when this mortgage was given, and when the property was transferred to plaintiff, and when the mortgage was foreclosed, the statute in force in express terms limited the attorney’s fee that could be collected under a foreclosure by advertisement to $10. If we grant that plaintiff expressly assumed the mortgage, it agreed to pay just the sum which, on the face of the mortgage, the law required it to pay in order to satisfy the mortgage. That amount all parties to the transaction were obliged to know, and nothing further can be claimed.
It is urged that this defendant is not liable in this action, because the evidence shows that this attorney’s fee was received by the mortgagee, and that the same never came to the hands of the defendant. This will not excuse the defendant. The party who makes the sale is, in law, conclusively presumed to have received the amount for which he reports that he sold the property; and in Johnson v. Day, 2 N. D. 295, 50 N. W. 701, this Court said: “Nor would a mistake of the officer in ascertaining such amount in any manner bind the mortgagor or relieve the officer from liability to him for any surplus beyond the actual amount going to the mortgagee; and, if such excess had been paid to the mortgagee, then both the officer making the sale and the mortgagee receiving the money would be liable to the mortgagor for the amount of such excess upon demand made.” That case settles defendant’s liability.
The last defense urged is that the evidence shows that this claim was adjusted and settled between plaintiff and the mortgagee. We