Franklin v. Jamieson-Wohler

109 N.W. 56 | N.D. | 1906

Engerud, J.

Plaintiff brought this action to foreclose a real estate mortgage given by defendant Mrs. Jameson-Wohler to one Dr. Reilly, by whom it was assigned to plaintiff. The mortgage purports to secure the mortgagor’s promissory note for $750 and interest at 12 per cent per annum from its date, October 24, 1896. The note was due November 1, 1897. It is alleged in the complaint that a prior mortgage on the premises, given to Janney, Semple & Co., had been foreclosed on January 8, 1898, and the property sold to said Janney, Semple & Co. for $455.95. That said Dr. Reilly, as second mortgagee, redeemed from said sale in January, 1899, and received a sheriff’s certificate of redemption, paying for that purpose the sum of $510.65. That thereafter the defendant Mrs. Jameson-Wohler, by fraud and stealth, and without consideration, obtained possession of an instrument which had been executed by Reilly purporting to assign to her said certificate of redemption, and that she thereafter executed to defendant Frank Wohler an assignment thereof — all of which instruments were recorded. That said Frank Wohler thereafter, pretending to be the owner and assignee of said certificate of redemption, presented th„ same to the sheriff and procured from that officer a sheriff’s deed of said premises, which deed was also recorded. The only relief prayed for is the foreclosure of the mortgage in the usual form for the amount due on the mortgage, including therein the sum paid for redemption from the first mortgage. Plaintiff’s theory apparently is that the redemption had no other effect than the payment of a prior lien, entitled him only to add the sum so paid to his own lien. The plaintiff has misconceived his rights as well as his remedy. If the facts were as alleged in the complaint, the redemption by Reilly as second mortgagee had the effect to transfer to him all the rights of the purchaser at the sale; the certificate of redemption operating as an assignment of the certificate' of sale. After the year for redemption expired he was entitled to a sheriff’s deed, which would vest the title in him. .Rev. Codes 1899, section 5544 (Rev. Codes 1905, section 7143); Sprague v. Martin (Minn.) 13 N. W. 34. Flis mortgage lien would thereby be extinguished. If the assignment of the redemption certificate was wrongfully obtained from Reilly, the remedy is a suit in equity to establish that fact and enforce Reilly’s or the plaintiff’s right to the land as a real owner thereof. The complaint clearly states no cause of action for the foreclosure of the second mortgage. This objection to the complaint, however, was apparently lost sight of in the court below.

The defendants Mrs. Jameson-Wohler and Mr. Wohler answered jointly, and allege that the note and mortgage described in the complaint were given for only $350, but that Dr. Reilly, the mortgagee, fraudulently altered the same so as to make the same appear as a note and mortgage for $750. They further allege that the redemption, although made in the name of Dr. Reilly as a mortgagee, was in fact made by and for Mrs. Jameson-Wohler, the mortgagor and then owner of the land; and that the amount paid for the redemption was the money of said Mrs. Jameson-Wohler, and not the money of Reilfy. They further aver that the entire mortgage debt was paid to Dr. Reilly. They pray for a judgment canceling the mortgage as a cloud on the title and adjudging Frank Wohler to be the owner of the land by virtue of the sheriff’s deed. The trial court found for defendants, and judgment was entered for the relief prayed for by them. This appeal is from the judgment, and appellant demands a retrial of all the issues.

It is quite apparent that Dr. Reilly and Mrs. jameson-Wohler are the real opposing parties in this action. Aside from the documentary evidence, the testimony of these two persons is virtually the only evidence in the case. It is painfully evident that each of these two witnesses are alike unworthy of credit. As to Dr. Reilly, the record clearly discloses that he knowingly testified falsely at the trial touching material facts in the case; and, as to the opposing witness, it is very apparent that she had little respect for the obligations imposed by her oath. It is undisputed that Mrs. Jameson-Wohler has had possession of the note and mortgage and sheriff’s certificate of redemption since long prior to the commencement of this action. It is also evident from the allegations of the complaint and answer, as well as from the testimony of both parties, that both of them assumed and acted on the assumption that the redemption certificate was merely an evidence of a debt or obligation in addition to that evidenced by the note and mortgage. That being so, the possession of the certificate of redemption by the supposed debtor should be given the same evidentiary force as the possession of the note and mortgage by the obligor. Rev. Codes 1899, section 5713c, subds. 1, 9 (Rev. Codes 1905, section 7317). It is prima facie' proof that the obligations have been discharged and canceled. The allegation that the possession of the papers was surreptitiously obtained by Mrs. Jameson-Wohler is supported by no other testimony than that of Dr. Reilly, who, as we have already -stated, is utterly unworthy of credit. It follows that the prima facie pi oof of discharge or cancellation, afforded by the fact that the papers are in Mrs. J ameson-Wohler’s possession, must prevail. The testimony of Mr. Prom is too vague and indefinite to be of any value as corroborative of that of Dr. Reilly. It tends to discredit Mrs. Jameson-Wohler’s testimony; but, as above indicated, that was unnecsesary, because we disregard her testimony for the same reason that we decline to believe Dr. Reilly’s.

(109 N. W. 56.)

There was no evidence that Frank Wohler is the owner of the land in question. He claims title by virtue of the sheriff’s deed, which he obtained as an alleged assignee of the certificate of redemption. But if that redemption was in fact made, as he claims, by Mrs. Jameson-Wohler, the mortgagor and then owner of the land, then such a redemption is a cancellation of the foreclosure or execution sale. Rev. Codes 1899, section 5545 (Rev. Codes 1905, section 7144) ; Sprague v. Martin, supra. This result would in no way be avoided by the device of redeeming in Reilly’s name and causing his certificate of redemption to be assigned to the mortgagor and owner of the land. There is no showing upon which to base a finding that Mr. Wohler is equitably entitled to the ownership of the land. It follows that the assignment from Mrs. Jameson-Wohler to Frank Wohler passed nothing.

The judgment should be modified so as to adjudge the ownership of the land to Mrs. Jameson-Wohler, instead of to Frank Wohler. As thus modified the judgment is affirmed, respondents to recover the taxable costs.

All concur.