206 N.W. 703 | N.D. | 1925
This is an appeal from an order denying a motion to vacate certain proceedings had and from the judgment entered in favor of the plaintiff. The action was upon certain promissory notes which were alleged to have been executed by the defendants who were man and wife. There are four causes of action stated upon as many separate notes, which appear to be mortgage notes representing principal and interest. The answer was a general denial. A short while before the term at which the cause was to be tried, the defendants engaged new counsel who prepared a proposed amended answer and served notice of a motion, to be heard on the opening day of the term, for permission to file the same. The proposed amended answer is in substance a general denial with additional allegations to the effect that the defendant E.E. Campion was the owner of certain land in Burke county and that the defendant Flora Campion was his wife; that, as a part of the transaction in which the notes were given, mortgages were executed which constitute valid and subsisting liens upon the real property described; that the mortgages contained provisions to the effect that, if the lands were sold for taxes or if the taxes thereon had not been paid by the mortgagors, the holder of the mortgage might redeem from the sale or pay the taxes and that the amount so paid should constitute an additional lien drawing interest at the rate specified in the mortgage and be collectible as a part of the mortgage debt; that the defendant Flora Campion had no interest in the property but executed the mortgage pursuant to custom and usage in the execution of mortgages upon real property; that the property was not homestead property; *458 that there was no consideration for her signature, the same being attached for the sole purpose of waiving homestead and evidencing the fact that she claimed no homestead right in the property. It is further alleged that subsequent to the execution of the notes and mortgage, taxes for the years 1917, 1918, 1919 and 1920 were levied and assessed and, the taxes for the year 1917 not having been paid, the property was sold at the regular tax sale held in 1918, one E.R. Moore becoming the owner and holder of the tax sale certificate; that the taxes for 1918, 1919 and 1920 were paid by the owner and holder of the tax sale certificate and that thereafter such proceedings were had in manner and form as provided by law; that the "said land so mortgaged as aforesaid was duly conveyed by deed to the said E.R. Moore" and that thereafter Moore conveyed the property to the plaintiff or her predecessor in interest, the holder and owner of the notes and mortgage becoming thereby the owner of the land in fee. The legal conclusion that the mortgage lien and the indebtedness became merged in the title and ownership so acquired by the plaintiff or her predecessor in interest, is likewise pleaded.
The proceedings referred to in the notice of appeal have to do with the denial of the motion for permission to amend and with the circumstances in which the new counsel for the defendants and the defendants were disappointed in their desire and intention to file an affidavit of prejudice under the statute before the opening of the term in the event that a certain judge should preside at the term. Inasmuch as the merits of this case are involved in the facts alleged in the amended answer, we will not need to notice the proceedings complained of, if it in fact states no defense. Counsel for the appellant concedes in his brief that, if the proposed amended answer does not state facts constituting a defense, the defendants were not prejudiced by the action of the trial court in the other proceedings.
The first question to consider is this: Where one executes a note secured by mortgage, the mortgage containing a clause permitting the mortgagee to pay the taxes and add the amount to the mortgage debt, and the premises are subsequently sold to one other than the mortgagee, who acquires title by tax deed, does the conveyance of this title to the mortgagee, or his assignee, defeat the right to recover the debt? Counsel rely principally upon the case of Finlayson v. Peterson,
Counsel also argues that, as the answer shows the acquisition of the property which was held as security for the debt, it states a defense, at least pro tanto, that is, to the extent of any margin of value above the amount paid by the plaintiffs. Miller v. Little,
Judgment affirmed.
CHRISTIANSON, Ch. J., and NUESSLE, BURKE, and JOHNSON, JJ., concur.