127 N.W. 78 | N.D. | 1910
This action was brought by C. B. S. Goss against Henry Herman, Leopold Jochem, James F. Trottman, S. N. Putman, E. S. Severtson, Frederick T. Day, Melvin Grigsby, and other persons unknown claiming any estate or interest in the Northwest % of section ■32, Township 148 north, of range 66 west, in Eddy county, North Dakota. The complaint, in general, is for the determination of adverse claims, although it contains some allegations not included in the statutory form. It is unnecessary to set it out in full, or the answers, as the usual allegations will be sufficiently stated wherever necessary when considering the legal questions.
The defendant Grigsby answered, claiming title in himself and generally denying the allegations of the complaint, though admitting some, and he sets forth a counterclaim in the usual form and asks that the title be quieted in him. The defendant Day answers individually and in behalf of and as trustee for his grantee, the defendant Grigsby.
The question in this case is whether, as against the respondent, appellants have any title or interest in the described premises. The chain of title through which respondent claims, in brief, is as follows: A quitclaim deed from Day and wife delivered to the Plankington Bank May 24, 1893, which is shown, without conflict in the evidence, to have been delivered with deeds of a large amount of other property as security for indebtedness owing by Day to the bank, amounting to approximately, $200,000. This deed was recorded in the office of the register of deeds of Eddy county on the 3d day of July, 1893. A deed of assignment by the Plankington Bank, executed on the 1st day of June, 1893, to William Plankington, as assignee, in trust for the benefit of its creditors, which deed recites that it was made as provided by chapter 80 of the Revised Statutes of the state of Wisconsin and the acts amendatory thereto, and that it conveys, among other things, all and singular, the lands, tenements, and hereditaments and appurtenances, property, and effects of every kind and description, real and personal and mixed, belonging to said bank, or in which it has any right or interest, the same being more fully described in an inventory, under oath, of the officers of said bank, to be filed by it in the office of the clerk of the circuit court of the county of Milwaukee, in the state of Wisconsin, within twenty days after the execution thereof. A copy certified by a commissioner of the circuit court of Milwaukee county, Wisconsin, is the only record of this deed shown by the record, and this was recorded in the office of the register of deeds of Eddy county June 22, 1900. A-quitclaim deed from Plankington, as assignee, to Irving M. Bean, as assignee of the Plankington Bank and successor to the said Plankington, dated August 28, 1899, recorded June 23, 1900. An order of the circuit court of Milwaukee county, Wisconsin, certified to by the clerk of that court
It will thus be seen that the respondent claims title from two sources; Eirst, through the assignment for the benefit of the creditors of the Plankington Bank; and, second, through the tax deed. We may eliminate at once from our consideration the tax deed, as it is drawn in the name of the county of Eddy instead of in the name of the state of North Dakota. This is fatal to its validity. Such a deed has been held absolutely void in State Finance Co. v. Mulberger, 16 N. D. 214, 125 Am. St. Rep. 650, 112 N. W. 986; State Finance Co. v. Beck, 15 N. D. 374, 109 N. W. 357; Beggs v. Paine, 15 N. D. 436, 109 N. W. 322. The respondent claims that inasmuch as the deed from Day to Grigsby was given when Day was not in possession, and it is assumed that he had not been for more than one year theretofore, that' it is void. His argument is based on the assumption that Day could not inject himself as a party defendant into the action and defend in behalf of Grigsby, and that Grigsby cannot defend in the name of Day, his grantor, when setting up a counterclaim. This rests on a mistaken assumption of fact that Day was not an original party defendant to the action, and is doubtless an oversight on the part of counsel. As we have shown, Day was one of the original defendants, and when a defendant pleads a counterclaim setting up title in himself, and asking that title be quieted in him, he becomes, as to his own title or claim of title, a plaintiff, and we see no reason why the defense, as it relates to the counterclaim, may not be conducted by the holder of a deed given when the grantor was out of possession, in the name of the grantee, precisely the same as though he had been the actual plaintiff in the proceeding.
Several interesting questions might be predicated on the effect of the disclosure in the pleadings and evidence that this assignment was made pursuant to the Wisconsin statutes, as to whether the record discloses that these statutes do not provide for a common-law assignment, and, if not, what presumption arises from the allegations of the pleadings and the proof relating to the nature of the assignment, but we shall not determine them. If the respondent’s chain of title is perfect, and the record does not disclose that he had knowledge or notice of the fact that Day’s deed to the bank was a mortgage, then the judgment of the trial court must be affirmed. Without going into details as to the different objections offered by the appellants to the reception of the various deeds and orders and decrees of the circuit court of Wisconsin, it i§ sufficient to say that these orders and decrees are not exemplified copies, and are not entitled to admission in evidence in this state. Section 1291, Bev. Codes 1905. Their offer in evidence was met by timely objections. Considerable stress is laid upon the fact that the schedule is not attached to the deed of assignment as recorded in the office of the register of deeds of Eddy county, and it is argued that therefore the land in question is not described so as to show that the deed of assignment works a conveyance thereof. We need not pass upon this, question. The objection made to the record of the deed of assignment as evidence is fatal to the respondent’s claim of a perfect chain of title, regardless of objections to other incompetent evidence. The deed of assignment was not entitled to record in the office of the register of' deeds. The original was not recorded in that office. The only record made was that of a certified copy, certified by a party claiming to be a court commissioner in Wisconsin, without any seal of office or certifi
“1. By a justice, judge, or clerk of any court of record of the United-States.
“2. A justice, judge, or clerk of any court of record of any state or territory; or
“3. A notary public; or
“4. Any other officer of the state or territory where the acknowledgment is made, authorized by its laws to take such proof or acknowledgment.
“5. A commissioner appointed for the purpose by the governor of this state pursuant to the Political Code.”
It will be seen that the court commissioner of the circuit court of Wisconsin is not one of the officers named unless included within the provisions of paragraph 4. No proof was submitted showing that a court commissioner of the circuit court of Wisconsin is authorized by the laws of that state to take acknowledgments, and it is elementary that such proof is necessary to entitle an instrument so acknowledged to record. 1 Oye. Law & Proc. pp. 551, 613, 856. Section 5002, Rev. Codes, 1905, prescribed the requirements necessary to entitle an instrument to record, and is to the effect that it must be acknowledged by the person executing it or proved by a subscribing witness and the acknowledgment or proof certified in the manner prescribed by article 3, chapter 39, Rev. Codes 1905, having particular reference to § 5013, supra. The deed not being entitled to record in that office of the register of deeds, its record in that office, which was the only proof of the deed or of its execution submitted, is incompetent as evidence of a conveyance of title. It may be claimed, although not referred to in respond-
Plaintiff devotes considerable space in his supplemental brief to his right to have title quieted in him by reason of possession. Possession does not constitute title, at least not until it has ripened into title, or adverse actions are barred by the statute of limitations. The fact that possession furnishes a presumption of title does not preclude the adverse party from showing a lack of title. It does qualify, under our statute, the possessor to maintain an action to determine adverse claims, but when he brings such action, if he relies solely on possession, it must have continued for the length of time required by the statute, and there is no pretense in this case that respondent had been in possession more than a trifle over three years when this action was brought, and, including the possession of his grantors, claiming to hold under the assignee’s deed, if they were ever in possession, about six years and. four months. While he was in possession under color of title, the very instruments through which he claims to derive title disclose on their face their invalidity for that purpose in this state. Finally, it is claimed that the appellants Day and Grigsby have been guilty of such delay in asserting their claims to the premises as to defeat them. It appears as to appellant Grigsby that he had held the deed from Day only two years when this action was commenced. It does not appear that he had any knowledge of the claims of respondent or any of his grantors or predecessors subsequent to the Plankington Bank, prior to the bringing of this action. The same is true as to appellant Day. Knowledge is an essential element of laches. 18 Am. & Eng. Enc. Law, p. 102. The original assignee of the bank, and the one who administered its affairs for some years, was the vice president of the bank, into whose hands the deed from Day to the bank, shown to be a mortgage, was delivered. It can hardly be assumed that Day should be charged with knowledge of any purpose on the part of Plankington, while such assignee, to fraudulently dispose of Day’s equity in the land, and, in the absence of service of any notice on him of the proposed action of the court or the application made to it for leave to sell or to confirm the sale, he should not be charged with knowledge that a sale was about
“In cases of actual fraud or want of knowledge of the facts, the law is very tolerant of delay.” Hoyt v. Latham, 143 U. S. 553, 36 L. ed. 259, 12 Sup. Ct. Rep. 568. It is held in the same case that the question as to whether the sale should be vacated or not depends upon the facts as they existed at the time of the sale. The Federal courts extend the doctrine of laches much farther than it is applied by state courts, which are generally guided by the statute of limitation. Absence from the state is considered in determining the question of laches. Day was. at all times a resident of Wisconsin, and Grigsby, of South Dakota. Day was president of the Plankington Bank at the time the assignment was made, and Plankington was its vice president and executive officer. Their relations were confidential. Day was not charged with any laches in not suspecting Plankington, while assignee, of any design to defraud him of his equity in the property, and it does not appear that he attempted to do so, but the attempt to sell was made shortly after Plankington’s retirement, by a successor, and it is held that, as one cannot acquiesce in the performance of an act of which he is ignorant, so,“one cannot be said to neglect the prosecution of a remedy when he has no knowledge that his rights have been been invaded, excepting, always that his want of knowledge is not the result of his own culpable negligence.” 5 Pom. Eq.-Jur. §§ 26 & 27. The record of the certified copy of the deed of-assignment from Herman to Jochem-furnished no notice to either Day or Grigsby, but if they did serve as constructive or actual notice to the world, then Goss was charged with notice or knowledge of the contents, showing that neither Plankington, Bean, nor Herman assumed to convey any greater title than that held by the bank.
After long and careful consideration of this case, we have arrived at
The judgment of the District Court is vacated and the case remanded for the purpose stated.