69 N.W. 185 | N.D. | 1896
This action was brought to determine a certain homestead claim of the defendant to lot 2 of block 2 in Keeney & Devitt’s addition to the City of Fargo, which claim the complaint alleges is unfounded in law. The action was tried without a jury, and, after filing its findings of fact and conclusions of law, the- District Court entered judgment upon the findings in favor of the plaintiff, declaring the said claim of the defendant- to be groundless in law, and null and void. Defendant appeals from said judgment. The evidence is not brought to this court. The only error assigned here is that the conclusions of law found by the trial court, and the judgment, are not warranted by the facts found.
The facts which, in our opinion, are decisive of the case in this court, are as follows: On the 3rd day of June, 1884, one Frank B. McCauley and one Reynolds each owned an undivided one-half interest in, and had a fee-simple title to, the lot in controversy, and which is above described, viz. lot 2. On the date above stated, said McCauley and Reynolds (said lot being then wholly unincumbered)'executed and delivered their mortgage to one William Aylmer upon said lot, to secure a debt of $2,000. The mortgage was duly recorded. At the time the mortgage was delivered, and continuously thereafter up to the 20th day of
From the findings of fact which we have narrated, in substance, the trial court deduced the following conclusions of law: First, that, at the time the McCauleys made and delivered their quitclaim conveyance of lot 2 to this defendant, they had no right, title, or interest in said lot, and, consequently, that the defendant acquired no interest whatever by said deed of quit-claim; second, that the plaintiff was entitled to a judgment declaring that the plaintiff’s title is good and valid, and free and clear of any cloud or incumbrance caused by said deed, or the record thereof.
We have no doubt or hesitation in saying that the legal conclusions of the trial court were entirely correct and proper. The conceded facts do not permit of doubt that, when the McCauleys executed their quit-claim deed of the premises in question, and upon which alone the defendant predicates his alleged interest in the premises, the McCauleys had definitely, and with no expectation to return, removed from the territory (now state) of North Dakota, and had, without any possible doubt, purposely given up and abandoned their residence in the City of Fargo, and had been out of the territory and state for a period of about four years before the deed was made. Not only is there no finding of a purpose on the part of the McCauleys to return to their residence in Fargo at any time after their removal to the State of Washington, in 1886, but the findings preclude any theory that such purpose existed. They were nonresidents at the time of the trial, and nothing in the record indicates any intention on their part to return to this state at any time. Their absence, therefore, from their former place of residence in the City of Fargo, exhibits a fixed purpose to live out of the state, and therefore a fixed purpose to finally abandon their former homestead premises
In making this claim, however, the defendant, in terms, concedes — and is forced to do so when he seeks to redeem — that the foreclosure was entirely regular, and that the purchaser at the sale acquired the fee-simple title vested in the mortgagor's (McCauley and Reynolds) when the mortgage was made. This is tantamount to saying that the entire fee was by the foreclosure divested from McCauley and Reynolds, and that the purchaser became seised of the entire fee-simple title to the lot in question. That such foreclosure had this effect is not open to doubt; nor
It follows from these considerations that if the McCauleys had never removed from the premises, and abandoned their homestead, — as they certainly did, — an action of ejectment could be
The judgment of the District Court will be affirmed.