147 P. 903 | Utah | 1915
The plaintiff, respondent here, brought this action in the District Court of Salt Lake County to determine adverse claims and to quiet title to the real estate in question, three city lots, in himself. His claim of title is based upon a tax deed and upon a decree quieting' the title, which was in fact based upon said tax deed, although it does not so appear- from either the pleading's or decree in said action. The defendant in this
The appellant’s answer and counterclaim in this case is very voluminous, and sets forth in detail the history of the title and prior litigation relating thereto. ¥e shall refrain from setting forth any part of the answer and counterclaim, but will content ourselves with the statement that appellant claims title to the lots in controversy from the indorser of certain notes and the assignment of the mortgage given on the lots in question to secure said notes, and which mortgage was foreclosed and the lots were sold to the said assignee, to whom a sheriff’s deed was made therefor, and who after-wards conveyed the same to1 appellant. A number of conveyances, judgments, and decrees are pleaded and produced in evidence; but inasmuch as the respondent must succeed if he succeeds at all upon his claim which rests, upon said tax deed and the decree based thereon quieting the title in him, while appellant must prevail, if he prevails in this case, upon his rights arising out of the transfer to him of the interest of the assignee and the notes and mortgage aforesaid, who, as purchaser at the foreclosure sale, obtained a sheriff’s deed to said lots and thereafter conveyed the same to appellant, we shall not refer to the numerous deeds, transfers, and judgments in the record, except as it may become necessary to illustrate some point in the course of this opinion.
The facts are not in dispute, and those that control, briefly stated, are: That in December, 1888, one John W. West and his wife, Sarah A. West, -were the owners of the lots in question; that at said time they made and delivered to one St. George their certain promissory notes, and, to secure the payment thereof, executed a certain mortgage on said lots; that said St. George, before the maturity of said notes, indorsed the same to one Walter Bryant and duly assigned to him said mortgage, which mortgage and assignment thereof were duly recorded in Salt Lake County; that only a part of said notes was paid to Bryant, and he, in 1904, foreclosed said
“Affiant further alleges that he verily believes that there are persons interested in the subject-matter of the complaint whose names cannot be inserted therein, because they are unknown to this affiant and to the plaintiff, said persons being the unknown heirs of John W. West and the unknown heirs of Sarah A. West; that the only interest the said unknown heirs have in such matter is derived through John W. West and Sarah A. West, and consists simply in such interests adverse to the plaintiff in the property described as would descend to said unknown heirs in case of the death of the said John W. West and Sarah A. West.”
Now it is made to appear, without dispute, from the record, that John W. West died on December 30, 1897, Eulalia Grace West, a daughter, and, so far as known, the only child of John W. West and Sarah A. West, died without issue, so far as known, on August 28, 1901, and Sarah A. West, the wife of John W. and mother of Eulalia West, died on the 28th day of February, 1904. Whether the Wests left any heirs, lineal or collateral, is not made to appear from the record. All of the Wests were dead, therefore, when respondent’s action' to quiet title to the lots in question was commenced, and
Section 2951 reads as follows:
“If any plaintiff shall allege that there are, or that he verily believes that there are, persons interested in the subject-matter of the complaint, whose names he cannot insert therein, because-they are unknown to him, and shall describe the interest of such persons, and how derived so far as his knowledge extends, the court or the judge thereof shall malee an order for publication of summons, reciting, moreover, the substance of the allegations of the complaint in relation to the interest of such unknown parties; and after the completion of service by such publication, the court shall have jurisdiction of such persons, and any judgment or decree rendered in the action shall apply to and conclude such persons with respect to such interest in the subject-matter of the action.”
This section, with the exception of the necessary changes to make it applicable to the terms used in our statute respecting pleadings, etc., is a verbatim copy of the statute of Missouri, which, as we shall see, was in force in that state many years before it was adopted by this state in 1898 as section 2951 of the revision of 1898. It will be observed that section 2951, supra, provides that if the plaintiff alleges that there are, or that he verily believes that there are, persons interested in the subject-matter of the complaint (in that action, the lots in question), whose names he cannot insert in the complaint because they are unknown to him, and he shall “describe the interest of such persons, and how derived so far as his knowledge extends, the court or judge thereof shall make an order for publication of summons, reciting, moreover, the substance of the allegations of the complaint in relation
“These conveyances, if they failed to pass title to the lots described, operated as an assignment of Boeschen’s mortgage to the successive grantees named in said several deeds [citing cases]. If the Boeschen mortgage was not foreclosed, it remained in full force and unsatisfied, and by the conveyances set out in the findings was owned by George Cooper,” the last grantee under the mortgage foreclosure.
In 27 Cyc. 1291, the rule is stated thus:
“Where, however, the mortgagee attempts to foreclose, and purchases at the sale under his decree,, takes possession, and then conveys to a third person, and the foreclosure sale proves to have been void, his conveyance will he held to operate as an assignment of the mortgage.”
To the same effect are Smithson Land Co. v. Brautigam, 16 Wash. 174; 47 Pac. 434, and Pettit v. Louis, 88 Neb. 496; 129 N. W. 1005; 34 L. R. A. (N. S.) 356. Although the foreclosure proceedings instituted by Bryant were void, yet the conveyance of the lots by him to appellant had the effect of an assignment of the notes and mortgage to the latter. Phe notes and mortgage, at least so far as the Wests are concerned, were at the time of the assignment as aforesaid, and still are, in full force and effect. " Appellant, therefore, has whatever rights the assignment of the notes and mortgage gave him to the lots in question. He is in possession of them, and therefore, in legal effect, has the ordinary rights of a mortgagee in possession after the maturity of the debt and before foreclosure. True, respondent contends that appellant’s possession is what is known as a scrambling one, since respondent has attempted to dispute it If, however, the. possession is a scrambling one, it is so only because of respond
In view of all the circumstances and the admissions of appellant, we shall therefore not consider the effect of the statute of limitations in so- far as that question might affect respondent’s lien for taxes. We, however, do- hold that respondent cannot invoke the statute of limitations as against
The judgment, is therefore reversed, and the cause is remanded to the District Court of Salt Lake County, with directions that, if the parties shall conform to the suggestions respecting the amendment of their pleadings, then said court shall proceed with the case as hereinbefore indicated, and if the parties refuse to so amend their pleadings, then to dismiss the action, making such distribution respecting the payment of costs as to the court- may seem just and proper. Neither party to recover costs in this court.