86 N.W. 723 | N.D. | 1901
Action to recover the possession of.real estate and to quiet and confirm the title thereto. The real estate in controversy comprises 160 acres, situated in Traill county. The defendants are in possession under a claim of title. Plaintiff alleges that he is the owner of said land, and that defendants have no right, title, or interest therein. The case was tried to the court without a. jury. No evidence was offered by the defendants. At the close of plaintiff’s testimony, at the request of defendants’ counsel and on his motion, findings of fact and conclusions of law were made adverse to plaintiff’s claim of title. Judgment was thereafter entered declaring certain transfers, upon which plaintiff bases his claim of title, void an of no effect. Plaintiff appeals from the judgment, and requests a review of the entire case in this court.
It is a stipulated fact that on December 1, 1885, Gúnder G. Emmons was the owner of the land in controversy, and it is from this common source that both parties to this action claim the title they rely upon. Plaintiff sets forth his claim of title as follows: He alleges that on December u, X885, Gunder G. Emmons and Ingeborg G. Emmons, his wife, executed and delivered a mortgage covering said land to one Hiram D. Upton, to secure their joint note for $700, payable to' said Upton, of even date with said mortgage; that on June 1, 1894, said Upton assigned said note and mortgage to one R. C. Alexander, by an instrument in writing; that said mort
It is apparent that, if the foreclosure proceedings and the several conveyances are valid, plaintiff’s title is perfect, and he is entitled to the relief he demands.. The defendants do not claim title or right of possession by virtue o'f any conveyance. Their rights, if any they have, rest solely upon the fact that they are the heirs at law and next of kin of Ingeborg G. Emmons, who died prior to the foreclosure proceedings hereinbefore referred to. At the time of the execution of the mortgage, and up to the time of her death, she occupied the land in question with her husband as their homestead, and since her death the defendants have continued to so occupy it. One of the defendants, Peter Emmons, is still in his minority. The facts placed in issue by the answer are few, and require but brief mention.
The execution of the mortgage by Ingeborg G. Emmons is denied; also the assignment of the note and mortgage from Upton to Alexander. An examination of the evidence transmitted to this court leaves no doubt in our minds that the mortgage was executed by her, and that it was assigned to Alexander by Upton, as alleged in the complaint. The execution of the mortgage is satisfactorily shown by the testimony of one of the persons who witnessed its execution, and by the certificate of the notary public attached thereto, certifying to the acknowledgment of its execution by the mortgagors before such notary public. The transfer of the note and mortgage to Alexander is established by the introduction in evidence of the original written assignment, executed by Upton and duly acknowledged by him before a notary public, which acknowledgment is certified to by the notary public over his official signature and seal. Objection was made to the admission of this instrument on the ground that it is incompetent, and that no foundation was laid for its introduction. The particular ground of objection is that, the
It was urged at the trial in the District Court that the entire foreclosure proceedings were void, and that the sheriff’s deed issued to Alexander pursuant thereto, and the deed of the latter to plaintiff, conveyed no title, for the reason that “the publication of the notice of mortgage sale is insufficient to comply with the statutes in this, to-wit, that the publications occurred on May 7, 1896, May 14, 1896, May 21, 1896, May 28, 1896, June 4, 1896, and June 11, 1896, and the sale took place on June 13, 1896, being a period of only 37 days.” The foregoing quotation from the language of the order of the trial judge correctly states the facts as to the publication of the notice and date of sale, and gives the sole ground relied upon by the trial court in rendering the judgment appealed from. The case was decided before our decision was announced in the case of McDonald v. Nordyke Marmon Co., 9 N. D. 290, 83 N. W. 6, wherein for the first time a construction was placed upon § 5848, Rev. Codes, which governed the publication of the notice of mortgage sale now under consideration .. In that case the statute now in force, namely, § 5848, was distinguished from the antecedent provisions found in § 5414, Comp. Laws, under which Finlayson v. Peterson, 5 N. D. 587, 67 N. W. 953, 33 L. R. A. 532, was decided, and was construed to only require a publication of the notice of sale six times, once in each
It is- also earnestly urged by respondents’ counsel that, notwithstanding the regularity and validity of the foreclosure proceedings, they are ineffectual against minors and heirs of the mortgagors, because it is a foreclosure by advertisement, and they are not parties to the record, and that it does not, therefore, cut off' their right to redeem. This contention is based upon the theory that the power of sale contained in the mortgage authorizing the mortgagee, his heirs, and assigns, to sell the land described in the mortgage, pursuant to the statute regulating the manner of exercising the right so conferred, was merely a naked power, one not coupled with an interest, and that it was therefore revoked by the death of Ingeborg Emmons, one of the mortgagors, and that, therefore, as to the heirs of said Ingeborg Emmons, the foreclosure is without effect. A large array of cases is presented by counsel as supporting this position. All but two of them relate to foreclosure by action wherein necessary parties were omitted. It is, of course, well settled that such persons are not cut off by such a foreclosure and upon elementary principles. None of these cases have reference to the effect of a statutory foreclosure under a power of sale, and are not in point. Johnson v. Johnson, (S. C.) 3 S. E. 606, and Wilkins v. McGehee, (Ga.) 13 S. E. 84, however, squarely hold that a power of sale in a real estate mortgage cannot be exercised after the death of a mortgagor, and that a sale made thereafter does not cut off the rights of the heirs at law of the mortgagor. The express ground of these decisions is that the power of sale in those states is not a power coupled with an interest, and is therefore revoked and rendered incapable of execution by the death of the mortgagor. In holding that the power of sale was not coupled with an interest, and so expired at the death of the mortgagor, it would appear that the courts in the cases just cited were largely controlled by the fact that in those states there was “no statute recognizing or declaring the effect or providing a method for the execution of the power. It could be executed only as any other power of attorney in the name of the principal.” But, however that may be, the almost unanimous voice of authority is the other way. 2 Perry, Trusts, § 602, states that “it is a universal rule that a power coupled with an interest is irrevocable, and, as to a power of sale inserted in a mortgage, * * *
It' follows from what we have already said that the foreclosure in question. was regular and valid, and that the defendants,. having failed to redeem within the time allowed by law, have no- right, title, or interest in said premises, and that the plaintiff is entitled to judgment confirming his title to said real estate, and enjoining said defendants from asserting any claim or demand thereto, and giving possession thereof to the plaintiff. The District Court is accordingly directed to enter an order vacating its judgment heretofore entered', and to direct the entry of a judgment in plaintiff’s favor for the relief to which he is entitled, as above stated.
Counsel for respondents in his oral argument, and also in his brief filed in this court, requested that, in- the event of an adverse decision, the case be sent back to the District Court for a new trial. Section 5630, Rev. Codes, under which this case was tried and the appeal taken, among other things provides that this court may, “if it deem such a course necessary to the accomplishment of justice, order a new trial of the action.” Just how broad a discretion is intended to be given by the language qüoted is a matter of much doubt. But it is clear that the power so conferred should not he exercised arbitrarily or capriciously, but only upon substantial grounds. Such grounds do not exist in this case. It is true the respondents did not introduce any evidence in the District Court, for the reason, as appears, that the court held with the views of respondents’ counsel, which were presented at the close of plaintiff’s case, namely, that the notice of sale was insufficient, and the foreclosure proceedings void. The opportunity existed, however, for presenting testimony, if respondents so desired. There is not in this case even the suggestion of a possibility of establishing facts which would alter the conclusions we have already announced. Under such circumstances,