133 N.W. 1044 | N.D. | 1911
This is tbe statutory action to determine adverse claims to real property. Tbe complaint is in tbe usual form, alleging title in fee in plaintiff, and that defendants wrongfully assert claims thereto in tbe form of judgment liens tbereon. Tbe defendant bank alone appeared and answered. By its answer it expressly admits plaintiff’s ownership of tbe real property, but denies that it wrongfully, or at all, claims any lien or encumbrance upon tbe same. Such answer alleges that such real property consists of less than 160 acres, and is of tbe value of less than $5,000, and that tbe same is and at all times mentioned in.tbe complaint was tbe homestead of tbe plaintiff. Tbe answer also alleges that said defendant bolds an unsatisfied judgment against plaintiff, which is docketed in tbe office of tbe clerk of tbe district court of tbe county wherein such property is situate; but that such judgment is not now, nor has tbe same at any time been, a lien or encumbrance upon said property or any part thereof. Tbe lower court, on motion of plaintiff’s counsel, thereafter gave judgment on tbe pleadings quieting tbe title of such property in plaintiff, and forever enjoining defendant bank from asserting any lien tbereon under its judgment, from' which judgment tbis appeal is prosecuted by such defendant bank.
Tbe assignments of error present but two questions for our consideration : First, under tbe facts pleaded, will tbe statutory action lie; or, in other words, is plaintiff entitled to any relief ? If so, then second, is be entitled to all tbe relief granted by such judgment; or, in other words, is that portion of tbe judgment perpetually enjoining appellant from asserting a judgment lien on tbe premises proper ?
Our statute authorizing tbe maintenance of an action to determine adverse claims to real property is § 7519, Eev. Oodes 1905, which reads .as follows: “An action may be maintained by any person having an •estate or interest in or lien or encumbrance upon real property . . . against any person claiming an estate or interest in or lien or encum
The only authorities relied on by respondent’s counsel in support of their contention that such action will lie are Corey v. Schuster, 44 Neb. 269, 62 N. W. 470; Dalrymple v. Security Improv. Co. 11 N. D. 65, 88 N. W. 1033; and 32 Cyc. 1324. The North Dakota case is not in point. There the defendants, who were judgment creditors, expressly asserted that their judgments constituted liens upon the property in litigation; nor does the citation in Cyc. in any way support respondent’s contention. The well recognized principle there announced is merely that “an action in equity will lie to cancel an invalid judgment or decree which is an apparent cloud on the title to land.” The Nebraska court in Corey v. Schuster, supra, says: “It is sufficient, to authorize the interposition of a court of equity, that the existence of the apparent liens of the judgments upon the premises may be used injuriously or vexatiously to harass the owner of the homestead, and injure and depreciate, his title to the property.” It appears from the opinion, however, that the judgment creditors who were made defendants expressly asserted liens on the premises under their judgments, both upon the ground that plaintiffs had abandoned the premises as their homestead and that such premises were of a character not entitling them to claim the same as such homestead under the Nebraska statute. What was said by the court on the first proposition was therefore unnecessary to the decision of the case; but it is no doubt true, as stated by said court, that it is not an essential prerequisite to the maintenance of such an action that the judgment creditors should be threatening or about to cause executions to be-issued and levied upon the exempt homestead; and we think, in the light
We realize that, under this holding, each owner of a homestead and who is a judgment debtor has a cause of action against each of his judgment creditors, although they, in fact, are asserting no claim hostile to the rights of such homesteader; but this works no hardship on such a judgment creditor, for he need not appear in the action, and in such event no costs can be allowed against him. Section 7528, Rev. Codes.
California has a statute analogous to ours, authorizing actions to determine adverse claims, and the supreme court of that state has in numerous instances held in accordance with the views above expressed. Castro v. Barry, 79 Cal. 443, 21 Pac. 946; Bulwer Consol. Min. Co. v. Standard Consol. Min. Co. 83 Cal. 589, 23 Pac. 1102; Dranga v. Rowe, 127 Cal. 506, 59 Pac. 944. In Castro v. Barry the distinction between the statutory action to determine adverse claims and the old chancery proceedings to quiet title is clearly pointed out; among other things the court saying: “The distinction between the two kinds of action is clear. They are different not merely in form (for we have no forms of action in the common law sense), but in purpose. In the former case the proceeding is aimed at a particular instrument, or piece of evidence, which is dangerous to the plaintiff’s rights, and which may be ordered to be destroyed in whosesoever hands it may happen to be. While in the latter, the proceeding is for the purpose of stopping the mouth of a person who has asserted or is asserting a claim to the plaintiff’s property,whether such claim be founded upon evidence, or utterly baseless. It is not aimed at a particular piece of evidence, but at the pretensions of an individual. The statutory action to determine an adverse claim is an improvement upon the old bill of peace. The statute enlarges the class
^Regarding appellant’s second contention, it is clear that the judgment entered is too broad. Such judgment forever enjoins appellant from asserting any lien to the premises under its judgment. As was in effect said by the Nebraska court in Corey v. Schuster, 44 Neb. 269, 62 N. W. 470, appellant will be entitled to assert a lien under its judgment on these premises at any time while owned by plaintiff, should they cease to be impressed with the homestead character, or should they enhance in value to an amount in excess of the limit fixed by statute, appellant will be entitled to subject the excess value thereof to the payment of its judgment.
The district court is therefore directed to modify its judgment in such a manner that it will not interfere with appellant’s right in the future to assert a lien under its judgment on such real property, if the facts shall entitle it to do so.
As thus modified, the judgment will be affirmed, appellant to recover costs on this appeal.