126 N.W. 503 | N.D. | 1910
This is an action to quiet title. The complaint is substantially in the form provided by § 7525, Eev. Codes 1905, and alleges that plaintiff is the owner of the land described in the complaint. It is further generally alleged that defendants claim a certain
The evidence is undisputed, and the following is a summary thereof: (1) Defendants were the owners of the land in question on November 19, 1880, and on that day executed and delivered to David Wood a mortgage thereon to secure an indebtedness from them to said Wood. (2) On March 3, 1883, the defendants executed a second mortgage on said land to Fuller & Johnson, to secure an indebtedness to that firm. (3) Through proceedings by advertisement, regular in all respects up to the sale, said David Wood foreclosed his mortgage on the 17th day of March, 1885. The notice of sale stated that the sale would take place “in front of the First National Bank Building of Casselton, in the city of Casselton,” etc. (4) The land was bid in at such sale by David Wood, the mortgagee, and an affidavit of the sale was made by the deputy sheriff who conducted it, and said affidavit was filed in the office of the register of deeds of Cass county, ón the 21st day of March, 1885. In this affidavit the deputy sheriff stated that the sale took place “at the front door of the courthouse in Fargo,” etc. (5) A certificate of sale was duly issued by the sheriff through the deputy sheriff who conducted the sale, and the same was filed and recorded in the office of the register of deeds on the 21st day of March, 1885. 'In the certificate of sale it was recited that the sale took place “in front of the First National Bank of the city of Casselton,” etc. The certificate contained all other facts required by the statute in force at that time, and stated that a deed would be issued to
Appellants contend that the title to the land in suit is still in August Friese. This is based on the fact that the affidavit of foreclosure sale made by the deputy sheriff recited “that the sale was made at the front door of the courthouse in the city of Fargo,” etc., while it was advertised to take place at the city of Casselton. As stated before, the certificate of sale and the deed recited that the sale took place according to the advertised notice, and in front of the first National Bank of Casselton. Besides this, the deputy sheriff made and filed another affidavit, stating that the sale took place at Casselton, and that the statement in the former affidavit, to the effect that the sale was made at the courthouse in the city of Fargo, was a clerical mistake.
It is claimed that there was no proof that the sale did take place at •Casselton. This contention is based on the fact that the affidavits of the deputy sheriff are self-contradictory and prove nothing. We do not think this to be true, even if the record contained no other evidence. The second affidavit states that it is made to correct an error in the former affidavit, and the record plainly shows what the error was. The certificate of sale, the deed, and other papers, show that the sale was made in front of the Casselton Bank. The error' in the first affidavit is clearly proven by competent evidence. Very slight evidence would be sufficient in such a case, as there is no contention that the sale was not in fact made in Casselton. It is claimed that the certificate of redemption issued by the sheriff of Cass county on the 17th day of June, 1886, reciting that the sale was made at the front door of the courthouse in the city of Fargo, should be considered as evidence that the sale was in fact made at the courthouse. It will be noticed that this certificate contains a recital that it was made to correct a clerical ■error in a former certificate, and from this statement it is claimed that the error in the former certificate was in reference to the place of the sale. There is nothing on which to base this assumption. It is more probable that this recital was made in view of the fact that in the
The appellants, however, do not rest their objections to the validity of the foreclosure solely on the ground mentioned. In addition to the alleged failure of proof, they allege that the deputy sheriff had no authority or right to make further or amended proof of sale after the filing and recording of the first affidavit. There is nothing in the statute in reference to filing more than one affidavit of sale. This foreclosure was made under the Compiled Laws of 188T, which authorizes a foreclosure of real-estate mortgage to be made by sale at any place within the county where the real estate was situated. Those laws further provided the manner in which a foreclosure of the real estate mortgage may be made. They required a notice of sale, certificate of sale, and contained provisions for a redemption within a year, and, if no redemption was made, the delivery of a sheriff’s deed to the purchaser. These laws further provided for the- filing and recording of certain affidavits to perpetuate the evidence of the .sale.
Kespondent’s contention is that the sale was complete and valid as a matter1 of fact and as a matter of law, without the filing of any affidavit of sale, and that the statute contemplates’ that the affidavit shall be filed solely as evidence of the sale, and not as a part of the sale. Without intimating that the foreclosure was invalid by reason of the clerical mistake in the recital of the affidavit as to the place of the sale, we are satisfied that another affidavit was properly filed to make the Teeord comply with the facts by correcting a purely clerical error. The statute permits an affidavit of sale to be filed under certain circumstances ; that is, to perpetuate the evidence of the sale. In this case .one was filed which recited a sale at a different place than that described in the notice. This was not any proof of the sale as it was made. An affidavit reciting a sale at Fargo is not any proof of a sale at Casselton. It follows, therefore, that no affidavit of sale pursuant to the notice for sale at Casselton was, in a legal sense, made until the second affidavit was filed. The time during which such an affidavit might be filed was not limited by the statute. We think that it was competent to file such additional affidavit at the time when it was filed' by the officer. The authorities are few that apply to this state of facts. In
In foreclosures by action the authorities are general that amendment *o the returns of sheriffs or other officers on the foreclosure of mortgages on real estate may be made at any time upon order of the court, in cases where innocent persons are not affected. We think the principles applicable to such amendments are in point on this case. In this case no one was affected or injured by the filing of the additional affidavit, as no new rights had accrued since'the sale.
It is further claimed by the appellants that the plaintiff cannot recover in this action, on the alleged ground that Ferdinand Piper, her grantor, never had title to the land. This contention is based on the fact that the deeds from Fuller.& Johnson to said Piper were merely quitclaim deeds and conveyed the present interest of the grantors only. As redemptioners, Fuller & Johnson quitclaimed to Piper before receiving a sheriff’s deed. Afterwards the sheriff made and delivered his deed of this land to said Fuller & Johnson. The quitclaim deed to Piper was at least an equitable assignment of Fuller & Johnson’s right to the deed under their redemption. It conveyed to Piper all the right, title, and interest of Fuller & Johnson to the land. Thereafter the sheriff gave a deed of this land to Fuller & Johnson; but Fuller & Johnson had no right to such deed at that time, as they had previously quitclaimed their rights to the land to Piper. Fuller & Johnson, however, subsequently deeded this land by a quitclaim deed to Piper, and through this deed was conveyed to Piper the interest that was acquired by Fuller & Johnson through the sheriff’s deed delivered to them after they had quitclaimed to Piper. Piper having conveyed the land to the plaintiff, the title was vested in her. Our conclusion on this objection to the foreclosure proceeding is that the title was conveyed to Piper, and by him to this plaintiff.
The title of the plaintiff in that action and his right to the possession of the premises were based solely and entirely upon the foreclosure action which the plaintiff relies on in this, action. The same issues that are litigated in this action were necessarily in issue and litigated in that action, and were necessarily adjudicated in that action. Having been an issue in that action, and having been adjudicated in that action, the matter is res adjudicata in this case. This is an additional ground why the defendant cannot prevail in this action. The defendants, however, claim that the judgment in that case was void, as shown on its face, upon the alleged ground that the district court of Cass county had no jurisdiction to entertain that action. The precise contention is that the court had no jurisdiction of the subject-matter of that action. Their contention is that the action was one for the forcible entry and detainer of real estate of which the district court had no jurisdiction
The allegations of the complaint do not correspond to any of the conditions under which the action of forcible entry and detainer is maintainable, as laid down in article 7, chap. 1, Justice’s Code, Comp. Laws 1887. The allegations of that complaint are as follows: First, an express allegation that the plaintiff was the owner in fee of the real estate described, and had been the owner thereof since the 29th day of March, 1886, and that he was entitled to the exclusive possession of the same. Second, the complaint alleges: “The defendant is now, and ever since the 29th day of March, 1886, has been, wrongfully and unlawfully in the possession of said premises, and now wrongfully and unlawfully withholds possession thereof from the plaintiffs.” After which there are allegations in the complaint of a demand for the possession and the annual value of the use of the land since March 29, 1886. The prayer for judgment is: First, for the possession of said premises; second, for damages; third, costs. The verdict found in reference to all allegations of the complaint, and the judgment determined all the facts alleged in the complaint and denied in the answer; We are therefore entirely satisfied that the issues in that case determined finally the issues in this case, and that the matter is now res ad judicata so far as these parties are concerned.
It is the contention of the defendant, however, that no legal judgment was ever entered upon the verdict in that case. The judgment was signed by the judge of the district court, and, after reciting the verdict in full, was as follows, in part: “Therefore it is adjudged that the plaintiff, Ferdinand Piper, recover of the defendant August Friese the possession of the real property described in the complaint.” And this was followed by words, “by the court,” and signed by Wm. B. McConnell, Judge. It was therefore a “final judgment,” and
It is further claimed that Piper conveyed the land to two persons at different times under contracts for the sale thereof, and that those persons did not reconvey the land to him, and that in consequence of this fact he' had no title to the land, and could not convey same to the plaintiff in this action. It is true that two contracts were made between two different parties under which Piper agreed to convey the land upon compliance with certain conditions. These conditions were never complied with, and the parties with whom Piper made the contracts abandoned the possession of the land and abandoned the contracts. Under the decisions of this court, such contracts may-be abandoned and forfeited in that way, and the title remains in the grantor without any conveyance from the person abandoning the land and the contract. By abandoning the contract and the land, the provisions of the contract are deemed waived, and the contract annulled and extinguished. Mahon v. Leech, 11 N. D. 181, 90 N. W. 807; Wadge v. Kittleson, 12 N. D. 452, 97 N. W. 856.
The judgment of the district court is affirmed.