206 N.W. 218 | N.D. | 1925
When this action was commenced, the plaintiff, Anna Nelson, was insane, and John Nelson, a son, brings it as her guardian in her behalf.
On March 21, 1908, the land in controversy was conveyed by defendant John Nelson, husband of the plaintiff, to Anna Nelson, the incompetent. She was then his wife. The premises were then occupied as a homestead. On October 15, 1909, Anna Nelson was adjudged insane and committed to the state hospital at Jamestown; on November 8, 1909, her husband was appointed her guardian by the county court of Foster county. On June 25, 1910, she was released on parole from the state hospital for the insane, and formally discharged therefrom on January 4, 1911, as cured. She remained at home thereafter. On
On August 26, 1920, John Nelson, “a widower,” executed a mortgage to secure the sum of $6,000 to the defendant Walrod upon the premises in controversy. Walrod’s good faith in making the loan is not questioned. Having defaulted in the payment of the loan, Walrod commenced foreclosure proceedings in January 1923. In the foreclosure action Anna Nelson was made a party defendant and upon the petition of the mortgagee, Walrod, one Dwight Jones was named as her special guardian. The guardian filed no answer in the foreclosure proceedings, and did not appear at the trial, but filed an affidavit reciting that he had consulted a lawyer — name not stated — who had advised him that Mrs. Nelson had no meritorious defense. It does not appear that the relatives of Mrs. Nelson had any actual knowledge of this transaction until after the sale. In that action the complainant alleged that Mrs. Nelson, has, or claims to have “some interest in or lien upon said mortgaged premises which interest or lien, if any, has accrued since the lien of said mortgage herein described, and is subject thereto and inferior to plaintiff’s claim.” A decree of foreclosure was duly entered, and in June, 1923, the premises were sold under execution and a sheriff’s certificate issued accordingly. The judgment “forever barred” Anna Nelson from asserting “interest in or lien upon said property,” and decrees, among other things, that her “interest” in the premises is “secondary, inferior and junior to that of the mortgage.” This part of the decree adopts the language of the prayer for relief. In December, 1923, the present action was commenced for the purpose of having the deed of conveyance of February 17, 1912, decreed null and void, canceling, as of no effect, the Walrod mortgage, and voiding in all respects the proceedings had for the foreclosure of the same. The prayer also asks for a decree that John Nelson and the defendant Walrod bo for
The trial court made findings of fact, conclusions of law, and order for judgment in favor of the plaintiff, adjudging, in substance, that the deed of February 17, 1912, was void and of no effect; that the mort-gp -e to defendant Walrod dated August 26, 1920, was void and of no & it; that the proceedings to foreclose the mortgage aforesaid be set asile and the sheriff’s certificate issued pursuant thereto be decreed voii and of no effect; that defendants Walrod and Nelson — the latter del tulted in this action — have no right, title to or interest in the prf mises in controversy; that they are forever barred from claiming or así uting any right or title thereto; anil that the title to the premises be quieted in the plaintiff, Anna Nelson, as against the claim of de-fi'udants Nelson and Walrod. The trial judge finds that Mrs. Nelson ‘'ñas been continuously insane since the 15th day of October, 1909, at which time she was adjudged insane and committed to said asylum,” and that she “was insane at the time she executed the deed to John Nelson.”
From this judgment Walrod appeals and asks a trial anew. Nelson does not appeal. It appears, from the facts stated above, that on the date of the transfer here challenged, Anna Nelson was under the guardianship of the grantee, her husband, although not confined in the state hospital for the insane; and that she was not formally restored to sanity until sometime later. Walrod contends that she was competent to transact business and to effect the conveyance at the time it was made; that the guardianship had, in legal effect, been abandoned, although the guardian, had not been formally released or discharged. He further contends that this action is a collateral attack upon the judgment in the foreclosure action and that inasmuch as Anna Nelson was made a party defendant therein, duty served, and a special guardian appointed for her, she cannot in this proceeding raise a question as to the validity of her deed of conveyance to John Nelson, on February 17, 1912.
“One of the most characteristic symptoms of the disease is the
“In spite of this emotional dullness to their experiences and environment, there is usually present an irritability and a tendency to impulsive outbursts of anger that often makes it difficult to care for them and not infrequently may have a forensic importance.” 1 Peterson, Haines & Webster, Legal Medicine & Toxicology, p. 606.
In the dementia praecox patient “there generally occurs a progressive lessening of his spontaneous initiative and an unsteadiness in his ability to keep at a task. As the disorder continues he tends to develop various abnormalities of attitude and conduct. . . . He may show stupor, with disinclination to care for himself or give attention to his surroundings. . . . The most common disturbance is the hesitation that occurs as a result of the blocking of the thought processes.” Ibid.
The uniform tenor of the testimony of the witnesses for the plaintiff is that Anna Nelson never spoke unless spoken to, and then only if urged persistently; that she would do some work, e. g., milk the cows, when told to do so; that she would never undertake any task without specific instructions; that she would not complete it without detailed directions. In short, there was a “progressive lessening of her spontaneous initiative and an unsteadiness of her ability to keep at a task.” She would become easily irritated and then spit at the objects of her anger; she would remain standing indefinitely if a certain chair was not placed for her; and she would never take part in games, conversation, or social intercourse. She developed “various abnormalities of attitude and conduct” said to mark the victim of this malady. This testimony covers a period prior and all the time subsequent to the execution of the deed to her husband. The notary who took her acknowledgment says he talked with her “nothing more than to say 'Good morning’,” and that she remained in the room where she signed “I don’t think any longer than it would take to sign her name.”
There remains but one serious question in the case, and that is whether the rights of the plaintiff were finally adjudicated in the foreclosure action. The defendant strongly insists that the proceeding is a collateral attack on a judgment that has become final and cannot, therefore, upon familiar principles, be maintained.
Before any testimony was offered, counsel for the plaintiff said to the court: “At the outset we submit to the court that the only question for determination by this court is the mental condition of the plaintiff at the time of the execution by her of the deed to her husband, who was at the time her guardian appointed by the county court of Foster county.” The first witness was thereupon sworn and counsel for defendants objected to the introduction of any evidence on the ground, among others, that the complaint showed that plaintiff’s claim of interest in the land had been the subject of adverse adjudication in the foreclosure action and that the judgment therein could not be thus collaterally attacked.
It thus appears that the parties did not, at least at the opening of the trial, construe the action as an attack upon a judgment, but rather as a proceeding to quiet title. The complaint contains allegations of fraud sufficient to warrant the introduction of evidence for the purpose of vacating the judgment in the foreclosure action, on that ground, in so far as it purports to adjudicate upon the rights of plaintiff in the land. There is, however, no evidence of fraud in procuring that judgment, unless an inference thei’eof should be drawn from the fact that the special guardian did not answer, but filed an affidavit in which he
We think it must be held tbat tbe primary purpose of tbe present action was, as stated by counsel for tbe plaintiff, to set aside tbe deed of February 17, 1912, and to quiet title in tbe plaintiff, on tbe theory that John Nelson never acquired any mortgageable interest in tbe land.
We are confronted with a judgment which expressly decrees tbat the interest of tbe plaintiff is “secondary, inferior and junior to tbat of tbe mortgage.” From tbat judgment no appeal has been taken; no motion has been made to vacate tbe default against tbe plaintiff on any of tbe grounds enumerated in § 7483, Comp. Laws 1913. There was jurisdiction of tbe person of tbe defendant by service on a special guardian duly appointed by the court. Tbe trial court says tbat tbis guardian acted in good faitb and tbe record contains no evidence to tbe contrary. “As. a general rule, a court of equity in a suit to foreclose a mortgage, will not undertake to determine tbe validity of a title prior to tbe mortgage and adverse to both mortgagor and mortgagee; because such controversy is independent of tbe controversy between tbe mortgagor and tbe mortgagee as to tbe foreclosure or redemption of tbe mortgage, and to join tbe two controversies in one bill would make it multifarious.” Hefner v. Northwestern Mut. L. Ins. Co. 123 U. S.
In Dickerman Invest. Co. v. Oliver Iron Min. Co. 135 Minn. 254, 160 N. W. 776, it is said:
“The judgment determined that the Congdon interest was subsequent to the lien of the mortgage. What the evidence was we do not know nor could we review it if we did. Under the evidence it may have been right or it may have been wrong. Whether right or wrong the adjudication is final. If wrong it could have been corrected on appeal. It cannot be attacked collaterally. That it is now sought to do. We think the weight of authority favors the view that such a judgment is binding and cannot be assailed collaterally.”
Again in the same case, it is said:
. “The rule which denies the right to litigate a paramount title is one of practice or procedure. There is nothing in the constitution of the court or the character of the adverse title that forbids its determination. It is not, it seems to us, a question of jurisdiction, unless a statute or some positive rule of law makes it so and there is none in this state. Besides under the pleadings and findings the asserted claim was subsequent to the mortgage. It was not the litigation of a claim conceded to be paramount. If the judgment is not a bar a defendant alleged to have a subsequent interest could always relitigate upon the theory that his interest was prior and paramount. A judgment of foreclosure would "not be a final adjudication of interests alleged to be subsequent. This result should not follow and we hold that it does not.”
Nothing would be gained by a lengthy discussion of the authorities. We have examined all those cited by the plaintiff. We are convinced that the sounder reason supports the rule that if the issue of paramount title be in fact, though with impropriety, injected into foreclosure proceedings, and that issue is adjudicated, the irregularity is not jurisdictional and the decree is conclusive collaterally. Hefner v. Northwestern Mut. L. Ins. Co. supra; Dobbins v. Economic Gas Co. 182
What our views as to tbe equities may be is of no particular importance. In tbe divorce action no steps were taken by any one to protect whatever interest Mrs. Nelson might have bad in tbe land, although a neighbor of tbe Nelsons and a friend of tbe present guardian was named special guardian in that proceeding. Defendant Walrod made tbe loan in reliance upon tbe record title and there is no claim or suggestion that be acted either negligently or in bad faith at any stage. In tbe foreclosure action service was bad on Mrs. Nelson in tbe manner provided by law in tbe cases of incompetent defendants. Those interested in tbe present action did nothing then to apprise tbe court of her claim. A judgment was entered and she did not appeal or move directly to set it aside. She is bound thereby.
Judgment reversed and case dismissed.
After reargument.
After tbe foregoing opinion was filed, all of the issues were reargued by counsel for both parties. After careful reconsideration of tbe questions of law and of fact discussed and decided in tbe original opinion, we are satisfied that our conclusions therein expressed are correct.
