114 N.W. 724 | N.D. | 1908
This is an action to determine adverse claims to 160 acres of land in Nelson county. The register’s receipt and the patent to this land were issued in the name of Ole Ackenland. The plaintiff claims title by virtue of a sheriff’s deed, issued’ to it on May 13, 1903, under a foreclosure of a mortgage from Ole S. Ackerland, for the sum of $350, on July 24, 1883, to Emma B. Gove, and by her assigned to the plaintiff on February 25, 1902. The consideration recited in the assignment was “$1 and other valuable consideration.”’ The defendant Mary S. Hodgson claims title under a tax deed, issued to her on July 16, 1900, and under a sheriff’s deed, issued to her on January 27, 1902, on an assignment of a sheriff’s certificate of sale under a mortgage for $35, given to F. T.
The appellants contend that the judgment of the district court is erroneous for the following reasons: (1) ,That the sheriff’s deed to the plaintiff was void as to Halstenson as a champertous deed1, he having been in possession of the land when the same was issued; (2) that the plaintiff acquired no title to the land, for the reason that the mortgage foreclosed by it was given to one Ackerland and the land was patented to one Ackenland; (3) that the mortgage under which the defendant Mary S. Hodgson acquired title was prior to the mortgage under which the plaintiff acquired its title; (4) that the claim under which plaintiff acquired title is stale, and a court of equity should not entertain the same, but should presume that the same had been paid and satisfied; (5) that the trial court erred in refusing to allow an amendment to defendant Halstenson’s answer, setting forth the value of the improvements placed on the land by him; (6) that the trial court erred in not substituting the personal representative of E. J. Hodgson, deceased, as a party on the suggestion of counsel for Halstenson and Mary S. Hodgson; (7) that the court erred in decreeing the tax deeds invalid without a tender or payment of all just taxes. The claim of maintenance or champerty as to the sheriff’s deed to the plaintiff while Halstenson was in possession cannot be sustained. Plaintiff’s title was derived through a foreclosure of mortgage from the owner of the land. Section 8734, Rev. Codes 1905, expressly authorizes the giving of a mortgage upon land adversely held by another. Galbraith v. Payne, 12 N. D. 164, 96 N. W. 258. The deed was given pursuant to the mortgage given by the owner of' the land before Halstenson went into possession. Deeds given while possession is so held are not deemed champertous, and possession under such deeds is not adverse, when based upon the mortgage. Halstenson’s possession was based on a contract for a deed from E. J. Plodgson. Hodgson had not any title to the land when the contract was given. For that reason Halstenson had no rights to the land, as Hodgson had nothing to convey. Halstenson’s possession did1 not therefore make the sheriff’s deed champertous under section 7002, Rev. Codes 1899. Sheriff’s deeds ghren pursuant to foreclosure sales do not come within the application of said section. They are in the nature of
The contention that Hodgson held title under tax certificate and tax deeds is not borne out by the evidence. The allegations of the answer are not sustained as to payment of taxes or as to the ownership of the land under tax deeds.
It is next claimed that the plaintiff has not title to the land for the reason that the mortgage under which it claims was given by Ole S. Ackerland, while the title is shown to have been in Ole Ackenland. It is claimed as a matter of law that the mortgagor in this mortgage is not the same person that held the legal title. Unexplained, there would be force in the contention. But the record shows sufficient facts to overthrow the contention. It is shown that Ole Ackerland was the entryman under the land laws, and was then known under the name of Ackerland. It is also shown that Ackerland was in possession of the land when the mortgage was given. It further appears as a circumstance having some bearing on the identity of the person giving these mortgages that the original papers from the United States government are produced by the plaintiff. The receiver’s certificate was issued on July 23, 1883, and the mortgages were given on July 24th. No person by the name of Ackenland has made any claim to the land, nor is he shown to have been in any way connected with the land or title during the lapse of about 24 years. Further, in the body of the mortgage we find the name of Ole S. Ackerland as mortgagor. The notary certifies that Ole S. Ackenland, who appeared before him, is known to him to be the person who signed the mortgage. This was a statement by the notary that Ole S. Ackerland and Ole S. Ackenland are the same person. Under these facts we think it is shown that no such person as Ackenland was ever the owner of the land, or in any way connected with the title thereto. The name in the patent and register’s receipt was evidently inserted by mistake. Conceding, without deciding, that the name Ackenland is not practically the same as Ackerland, and that they are not presumed to be the same person under the doctrine of idem sonans we are satisfied from the record that the patentee of the land and the mortgagor were one and the same person.
The use of the initial “S” in the mortgages, although it was not used in the patent, is immaterial. It is not an unusual occurence to drop an initial in writing a name, and the authorities are general
It is claimed that defendants are entitled to judgment as the holders under the prior mortgage. As stated before, the mortgages were executed, acknowledged, delivered, and recorded at the same time. Plaintiff’s mortgage matured four years later than the mortgage under which defendants claim. Defendants’ mortgage was foreclosed in 1886, although a deed was not issued until 1900, but the deed was issued before the plaintiff’s mortgage was foreclosed. The fact that defendants’ mortgage was first foreclosed, and a deed issued, is the basis of defendants’ contention that they hold the title free from the lien of the plaintiff’s mortgage the same as though their mortgage had been in reality a first mortgage, and that the holder of the mortgage under which plaintiff claims was barred of all rights to the land after the time for a' redemption had expired, and had no rights under this mortgage, except to a pro rata distribution of the money derived from the foreclosure sale. We cannot agree to this contention under the facts of this case. Under the evidence, the two mortgages did not stand upon an' equal footing. The plaintiff’s mortgage was a prior mortgage to that of the defendants’, although both were of equal standing and priority, so far as the record is concerned. E. J. Hodgson and Day were engaged in the mortgage loan business in Minnesota, North and South Dakota. They loaned money for eastern capitalists on commission secured by second mortgages. These second mortgages were jointly owned by Day and' Hodgson, although taken in Day’s name. Day testifies that their customary manner of doing business was to take second
Complaint is made that the court did not require payment or tender of the taxes on the land by the plaintiff before granting it any relief. There is no ¡proof that the Hodgsons or Halstenson ever paid any taxes on the land, and the other defendants have not appealed. The tax deed on which Mary S. Plodgson relies was void on account of failure to describe the land in the assessment roll. The land was described as the S. E. 4, etc.
The appellants Halstenson and Mary S. Hodgson, at the close of their testimony at the trial, suggested the death of the defendant E. J. Hodgson, and suggested the advisability and necessity of bringing in his personal representatives as parties. This was not done, and the failure to do so is urged as ground for a reversal of the judgment. The court has found that the interests of E. J. Plodgson were litigated and adjudicated in this action, and the record so shows. It was discretionary with the trial court whether to postpone the trial at that stage of it in order to have the personal representatives brought in. Sykes v. Beck, 12 N. D. 242, 96 N. W. 844.
The defendant Halstenson asked leave to amend his answer from a general denial to one alleging his possession of the land under color of title and the making of valuable improvements thereon while in possession. The request for the amendment was made after Halstenson’s evidence had been taken. It was discretionary with the court whether to allow the amendment or not, and there was no abuse thereof in refusing to do so. No reason was advanced why the application had not been made before trial or at the commencement of the trial. The records showed what plaintiff’s claim of ownership was, and the exercise of diligence would have resulted in advising defendant thereof without waiting until plaintiff had produced its testimony at the trial.
Appellants contend that plaintiff’s claim is stale, and should be presumed to have been paid and satisfied. They concede that the statute of limitations has not run against the mortgage. The plaintiff’s mortgage matured in 1888, and foreclosure was commenced in 1902. There are no facts in the record showing any prejudice on
Complaint is also made against the judgment because the plaintiff did not produce the notes secured by its mortgage at the trial. This was an action to quiet title, and not to foreclose the mortgage. The regularity of the mortgage or of its foreclosure was not attacked, and whether the notes had been .paid was in no way involved.
This judgment was affirmed.