171 N.W. 255 | N.D. | 1919
Lead Opinion
This is a statutory action to determine an adverse claim to land. In such an action the complaint is a mere challenge to defendant to set forth and establish his adverse claim, or to abandon it. Defendant becomes practically the plaintiff and takes the affirmative in pleading and proof. Steinwand v. Brown, 38 N. D. 607, 166 N. W. 129. The complaint in this case merely avers that the plaintiff •owns block forty-three in the village of Mott, and in Brown’s second addition to Mott, and that the defendant claims some title or interest in the same adverse to the plaintiff. The answer, which is the real ■complaint, avers: That some time in the year 1911, the defendant Paul Bohn became the owner of the premises described in the complaint and was the Owner thereof until May 1, 1917; that on August 13, 1914, this defendant recovered judgment against said defendant, .Paul Bohn, Sr., for the sum of $1,796.20, and judgment was there
The reply, or answer, expressly denies that the judgment and lien-mentioned in the answer is superior to the rights and claims of this, plaintiff, and alleges that it constitutes only a cloud upon the title. However, that is an admission of the judgment and the docket.
As the record shows, in October, 1910, William Brown, the owner of block forty-three, conveyed the same to Paul Bohn, Sr. Then, in December, 1911, Paul Bohn conveyed the same by mortgage deed to-one Trousdale to secure $2,600 and interest. Trousdale assigned the mortgage to the First National Bank of Mott. It assigned the same to Carl Mueller, who foreclosed and obtained a sheriff’s deed to the block. On February 1, 1914, the senior Bohn conveyed the block to a junior Bohn, and it appears the conveyance was made in good faith and for a valuable consideration, and the grantee at once took and retained possession of the block. Subsequently, on August 14, 1914, the appellant recovered and docketed the judgment as alleged. The claim of appellant is that its judgment is a prior lien, because that in the mortgage and in the deed made by Paul Bohn, Sr., the block was not sufficiently described. However, in each of said conveyances the description was block 43, in the village of Mott, as the same is laid down and described in the plat of said village, on file in the office of the register of deeds of Hettinger county; and as the trial court found, in the village of Mott there is only one block 43, and it is in the village of Mott and in Brown’s second addition to the village; and at the time of docketing the judgment appellant had actual notice of the mortgage. At the time of filing the mortgage the village was new and small, and there was no possibility of mistaking the description. All the conveyances affecting block 43 were properly entered in the tract index. The credit man of appellant went to block 43, on which Bohn kept a livery stable and an implement house, and there requested Bohn to give him security on the block. However, he testifies that he had no knowledge of the mortgage or of the platting of the village of Mott. Still, he must have known where to find the plat, and it was not for him to shut his eyes and say that he did not see. By statute a register of deeds must keep a numerical index of deeds and mortgages. Sec
Tbe purpose of tbe registration statute is merely to give subsequent purchasers and creditors a ready means of seeing tbe record of prior conveyances. But actual notice of a conveyance or possession by tbe grantee has tbe same effect as tbe recording of tbe conveyance. A person cannot be a good-faitb purchaser or encumbrancer of land against a party who is in actual possession, or when be has notice of facts or circumstances sufficient to put him upon inquiry. Good faith means good faith; it means an honest intention to abstain from taking an un-cbnscientious advantage of another, even through tbe forms and technicalities of the law.
Judgment affirmed
Concurrence Opinion
(concurring specially). I concur in an af-firmance of tbe judgment. I am inclined to agree with Mr. Justice BobiNsoN that under the facts in this case tbe description was sufficient. But in any event there was evidence tending to show, and tbe trial court expressly found, that tbe judgment creditor at all times bad actual knowledge of the existence of the mortgage upon tbe premises. This would of course render tbe lien of tbe judgment subordinate to tbe lien of tbe mortgage.
