191 N.W. 189 | N.D. | 1906
The plaintiff brought this action to determine adverse claims to 160 acres of land situated in McLean county. The complaint is substantially in the form prescribed by chapter 5, page 9, Laws 1901, and demands, among other things (1) that the defendant set forth all adverse claims that he may have to said land, and “that the validity, superiority and priority thereof be determined;” and (2) “that the same be adjudged null and void. * Hi
The defendant answered, setting forth two distinct claims. The first is a mortgage for $849.15, alleged to have been executed and delivered by the plaintiff and his wife to the defendant on October 21,1902, to secure their joint promissory note for the above sum of even date with said mortgage. The second claim is under a sheriff’s certificate to the defendant issued on August 21, 1904, at a foreclosure sale of the premises under a mortgage alleged to have been given by the plaintiff and his wife on August 1, 1903, to Flatch and Heinsius to secure the sum of $334.50, and duly assigned to the plaintiff prior to the foreclosure. It is alleged that the premises were struck off to the plaintiff at the sale for $423.13. and that there has been no redemption. The answer also alleges the due execution and recording of all the instruments referred to, and prays for judgment confirming the validity of the mortgage and the validity of the sheriff’s certificate. The plaintiff did not reply, and a reply was unnecessary. The statute above referred to, and under which this action is brought, expressly declares that “no reply shall be required on the part of the plaintiff,” except “* * * when he has made permanent .improvements under' color of title.” In other words, the statute dispenses with the necessity of framing issues by a proper pleading as in other actions, and requires the court to determine “the validity, superiority and priority” of the claims set up without a pleading assailing their validity. The presiding judge called a jury and the evidence was submitted to them pursuant to a stipulation of the parties,
Error is assigned (1) upon the denial of the motion for new trial, and (2) upon the court’s failure to determine the validity of the sheriff’s certificate. The last assignment, which is based upon the judgment roll proper,'is the only one we shall consider. That this was error is apparent from the statement already made. The purpose of the action is to determine the validity, superiority and priority of the defendant’s adverse claims. The defendant set up the certificate and asked that it be held valid. Its validity was in issue, and it was the duty of the court to determine that question, and the error in failing to do so requires a reversal of the judgment and a new trial.
The reason advanced by respondent’s counsel to support his contention that the failure of t^e trial court to find upon this issue is not ground for reversal, or granting a new trial is not tenable. He contends that the case was tried under and is reviewable in
It must be held, therefore, that an equity action, in which a jury finds part or all of the facts, “is not an action tried * * * without a jury” within the meaning of section 5630, and is therefore not governed by that section, either as to the manner of trial in the district court or as to the review in this court upon appeal. This section has no application to this action. It was the duty of the trial court to determine the validity of both claims set up by the defendant’s answer. The validity of the sheriff’s certificate was in issue and was not determined. This was error.
The judgment will be reversed, and a new trial ordered.