195 N.W. 825 | N.D. | 1923
This is an action to cancel and set aside a sheriff’s deed issued upon the foreclosure of a certain mortgage by advertisement. The real purpose of the action is to afford the plaintiffs an opportunity to redeem from the mortgage foreclosure sale pursuant to which the sheriff’s deed was issued.
The complaint alleges that the plaintiff Koulhurst acquired title to a certain 100 acre tract of land situated in Williams county, under the Homestead Laws of the United States of America; that as owner of such land she did on or about February 16th, 1911, borrow from one, Fred Southard, the sum of $225, and execute in evidence thereof one note in that sum due August 16th, 1916; that at the same; time she executed and delivered to said Fred Southard a mortgage on the said tract, of land, also, that she did a.t the same time and place execute to him certain notes in the aggregate sum of $87.75 to wit: one note for $6.75 due August 16th, 1911; one for $13 due August 16th, 1912; one for $13 due August 16th, 1913; one for $13 due August 16th, 1914, one for $13 due August 16th, 1915; one for $13 due August 16th, 1916, and one for $16 due August 16th, 1917, each of said notes bearing interest at the rate of 12 per cent per annum after maturity; that such notes were given as a part of the interest unearned upon the said principal mortgage of $225; that at the same time and place she executed a second mortgage upon said premises to secure said commission or interest notes; that on May 17th, 1911, said-Fred Southard assigned said second mortgage to the defendant Irish, and that said Irish purchased said mortgage with full notice and knowledge that such mortgage was given' and taken solely in consideration of and to secure the payment of part of the unearned interest on said principal mortgage of $225. The complaint further alleges that on May 5, 1913, the principal mort
The complaint alleges and the trial court further found that at the time of said purported sale to Irish the mortgaged premises were reasonably worth from $2,000 to $2,400; that the sum bid by said Irish at the foreclosure sale was so grossly inadequate as compared with the true value of the premises as to shock the conscience of a court of equity. The complaint further alleges and the trial court further found that the sale was not conducted in good faith; that Irish did not become purchaser of the property fairly and in good faith; that while the notice of foreclosure sale published by Irish stated that there would be due on tbe mortgage at the date of sale the sum of $75.99, that as a matter of fact there was due thereon at that time not to exceed the sum of $55.56; that the defendant, Irish, and his attorney in charge of the foreclosure proceeding knew that the notice of mortgage foreclosure sale would be wholly ineffectual to call attention of the plaintiffs to the fact that such mortgage was being foreclosed; that he (Irish) did not exercise the power of sale in good faith; that he, on or about December 17th, 1920, executed a deed to the defendant Pearson whereby he (Irish) purported to convey the premises to him (Pearson) for a consideration of $1,200; that no part or portion of the purchase price agreed upon has been paid except the sum of $50; and that to secure
The trial court concluded that the plaintiffs were entitled to judgment cancelling and annulling the sheriff’s deed, the deed given by Irish to Pearson, and the mortgages given by Pearson to Irish. Judgment was entered accordingly and the defendants have appealed.
This action was one properly triable, and it was tried, under § 7846, Oomp. Laws 1913, as amended by chapter 8, Laws 1919. That statute provides:
“A party desiring to appeal from a judgment in any such action, shall cause a statement of the case to be settled within the time and in the manner prescribed by article 8 of chapter 11 of the Compiled Laws of North Dakota for the year 1913, and shall specify therein the questions of fact that he desires the Sivpreme Court to review, and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court. Only such evidence as relates to the questions of fact to' be reviewed shall be embodied in this statement. But if the appellant shall specify in the statement that he desires to review the entire case, all the evidence and proceedings shall be embodied in the statement.”
In this case the appellants have not demanded a trial anew of the entire case, nor have they demanded a retrial of any specified question or questions of fact. Hence, under the statute, as interpreted by several decisions, this court will not review the evidence, but following the language of the statute will deem all questions of fact as embodied in the findings of the trial court “to have been properly decided by the trial court.” State ex rel. McClory v. McGruer, 9 N. D. 566, 84 N. W. 636; Security Improv. Co. v. Cass County, 9 N. D. 555, 84 N. W. 477; Bank of Park River v. Norton, 14 N. D. 143, 104 N. W. 525. It therefore remains only to determine whether the pleadings and findings will sustain the judgment (Bank of Park River v. Norton, supra). Upon this question there is, we think, really no issue presented on this appeal; for it is not seriously contended that the findings do
While a power of sale in a mortgage is valid, and a foreclosure thereunder legally conducted has the same binding force as a foreclosure by action in which the parties are personally served with process (Comp. Laws 1913, § 8081; Grove v. Great Northern Loan Co. 17 N. D. 352, 138 Am. St. Rep. 707, 116 N. W. 345), and “the mortgagee, his assigns, or their legal representatives, may fairly and in good faith purchase the premises so advertised, or any part thereof,” at a foreclosure sale held by virtue of such power (Comp. Laws 1913, § 8083). the party having the right to exercise such power of sale is bound to exercise it in the utmost good faith towards the mortgagor, and his successor in interest. Hedlin v. Lee, 21 N. D. 495, 131 N. W. 390; 19 R. C. L. p. 594. And while inadequacy of price at the foreclosure sale is not of itself alone a sufficient ground for setting aside a sale, otherwise properly conducted (Grove v. Great Northern Loan Co. supra; Bailey v. Hendrickson, 25 N. D. 500, 143 N. W. 134, Ann. Cas. 1915C, 739; 19 R. C. L. 614), gross inadequacy of price, when coupled with the fact that the person vested -with the power of
In their complaint the plaintiffs ask that the amount, if any, due on the mortgage he ascertained, and the plaintiff, Lunde, permitted to pay the amount so found due into court; or in case such relief is denied that the plaintiffs or either of them he permitted to redeem by paying into court the sum bid by Irish at the mortgage foreclosure sale, to wit: $129.99, with-interest thereon. The trial court in its decree made no provision for payment of either of these amounts or of any amount whatsoever. As already stated, the trial court found that on May 22d, 1915, Ole Lunde, the then owner of the land, paid all notes which had matured prior to that time. Elsewhere in its findings the trial court found that on the date of the mortgage foreclosure sale held May 20fh, 1919, there was due on the mortgage not to exceed $55.56. Eor reasons already stated these findings of the trial court must be taken as correct on this appeal. While the findings do not state what installments were included in the $55.56 so found to he due, in light of the former finding that all installments which had fallen due prior to May 22d, 191.5, were paid by Ole Lunde on that date, it is apparent that the trial court actually found that the notes which fell due August 16th, 1915, August 16th, 1916, and August 16th, 1917, had not been paid and that these notes including interest thereon remained due and unpaid. The judgment appealed from is therefore modified so as to provide that the mortgage held by Irish, the sheriff’s deed issued to Irish on the foreclosure, the deed from Irish to Pearson and the mortgages from Pearson to Irish he cancelled and annulled on the condition that ’the plaintiffs or either of them within sixty days after the return of the remittitur herein pay to the clerk of the district court of Williams county, for the use and benefit of the defendants the aggregate-of-the following sums to wit: $13 with interest thereon at the-rate of 12 per cent per annum from August 16th, 1915, up to the date of payment; $13 with interest thereon at the rate of 12 per cent per annum from August 16th, 1916, up to the date of payment, and $16 with in