1 N.D. 266 | N.D. | 1890
There is, in this case, no controversy as to the facts, both parties accepting the findings of the court. These are, in substance, that plaintiff is the owner of the land in controversy subject to a certain mortgage dated September 14,
Appellants’ cousel contend in this court that the trial court, in canceling the foreclosure proceedings under the circumstances, disregarded the well-established rule in equity, and which is also a statutory rule in this state, (Civil Code, §§ 2011, 2012,) to the effect that a court of equity will not entertain an action to cancel an instrument invalid on its face, or upon the face of another instrument necessary to the use of the former in evidence, for the reason that an instrument which thus carries its own infirmity on its face cannot constitute a cloud. The argument is this: Title under the forclosure can only be asserted by tracing back through the assignments of the mortgage. Under the ruling such assignments are held to be insufficient in law to sustain the foreclosure by Elizabeth McKnight. Hence, every effort to assert the title exhibits its invalidy. We see no escape from this position, and, while the rule itself has been severely criticised, (see 3 Pom. Eq. Jnr. p. 437,) yet, as it has legislative sanction in this state, we cannot regard the criticism. For the reason above stated a reversal will be- necessary, but in order to definitely determine the rights of the parties respectively, we must notice the other points in the case.
It is contended that the court erred in holding that the record must show a legal chain of title from the mortgagor to the foreclosure purchaser. In the broad sense of the words, perhaps, the position of counsel is correct, but, in the sense in which the court used the language, we deem the rule most salutary, and it is not without support in the authorities. Our statute (§ 5412, Oomp. Laws, subd. 3) provides, as a condition precedent to foreclosure by advertisement, “ that the mortgage containing such such power of sale has been duly recorded, and, if it shall have been assigned, that all the assignments thereof have been
The supreme court of Michigan, in Miller v. Clark, use this language: “The assignments which are required to be recorded are those which are executed by the voluntary, act of the party, and this does not apply to cases where the title is transferred by operation of law, the object of the statute being to restrict the execution of the power to the owner of the legal title to the instrument; hence, the executor or administrator of the owner of the mortgage can, as owner of the legal title, execute the power, and proceed in that manner to foreclose the mortgage.” In Morrison v. Mendenhall, 18 Minn. 232, (Gil. 212,) the court upheld a foreclosure where an assignment of the mortgage had been made by an attorney in fact whose authority was not of record. The mortgage was partnership property. The partnership consisted of three persons, one of whom was made managing partner by the articles of copartnership. The assignment was executed by the managing partner for himself, and by one-other partner for himself, and by the managing partner as attorney in fact for the absent partner. The transfer was made in the usual course of firm business, and the court upheld it. But in that case the court, after quoting the statute, say: “The manifest purpose of this requirement of the statute was to make the contents of the mortgage, and, so far as the statute goes, to make the title to the mortgage, matters of record. This mode of foreclusure being altogether in pais, and having been devised (as it undoubtedly was) to avoid the delay and expense of judi
One further question remains. Does the record in this case show such chain of title? We think not. The mortgage run to “Beecher & Dean.” It is not shown even that such parties were copartners, nor is the Christian name of either developed by the mortgage. It is held in Sherry v. Gilmore, 58 Wis. 332, 17 N. W. Rep. 252, where a tax-deed named Gilmore & Ware as grantee, that “the grantee in the tax-deed in question is so described as to indicate a partnership, and the evidence shows that, at the time of the delivery of the deed, the defendants were partners, using the firm name of “Gilmore & Ware.” A firm name is always held sufficient to designate the true name of all the persons composing the firm, and is always used in transaction of the business of the firm.” The point was made in that