122 N.W. 866 | N.D. | 1909
This is one of the cases now becoming very numerous in the courts of this state relating to speculation in defective titles to real estate. The facts may be summarized as follows: Annie Winterberg was, on the 1st day of May, 1889, the owner in *fee of the S. W. °f section 35, township 130 N., range 77 W., in Emmons county, and on that day executed and delivered ' a mortgage thereon as security for her note, payable in five years to one Plannah K. Loring, a resident of Massachusetts. This mortgage was recorded on the 5th day of June, 1889, in the office of the register of deeds of Emmons county, and contained a power of sale authorizing the mortgagee, or her agent, to foreclose and sell at public auction in case of default. Default was made by failure to pay the principal or any interest or taxes, and the mortgagee authorized the firm of Herreid & Williamson to foreclose such mortgage.
It affirmatively appears from the testimony of Annie Winterberg, the mortgagor, that she abandoned the mortgaged premises, and surrendered the same immediately after executing the mortgage, and that she has never since made any claim to title therein. When Lynn called upon her and requested her to sign the previously prepared deed running to Wetherby, he informed her that he sought it to make the title a little clearer. She told him that she did not know that she had any claim on it any more. He informed her that she had a little claim on it yet. She testifies that at that time she made no claim to any interest in it, and that she told Lynn that she did not want to take the land from Van de Vorste, the defendant, and that if it did not interfere with him (Van deVorste) then she was willing to sign the deed, and that Lynn informed her that it would make no difference to Van de Vorste, but would just clear up the title a little; that she first learned that it did interfere with Van de Vorste and his title not a great while after that; that she would not have executed the deed had she been informed that it would interfere with Van de Vorste’s interest and title; and that she relied upon the promise and statement of Lynn that it would not do so. Fie concedes that he showed her the five deeds which he had received from the executor, and used them to influence her to execute the deed to Wetherby, and claims that Mrs. Winterberg
It is contended on the part of the respondent that the foreclosure proceedings were absolutely void, and that no title passed, and that title should be quieted in him. Appellant asks for a reformation of the certificate of sale and sheriff’s deed, and suggests several reasons why title should not be quieted in plaintiff. We are not aided to any material extent by the brief of either party to this appeal. It will be noted that respondent has not tendered, and does not offer to pay, the mortgage, the interest, or the taxes paid by appellant or his grantors. We have little doubt that on this ground the action should be dismissed, and we might be justified in going no further than reversing the judgment and dismissing the action; but, as this would only result in further litigation, we have concluded to determine the full rights of the parties in the premises. In doing so we find it unnecessary to pass upon the validity of 'the foreclosure or the right to a reformation of any of the instruments described. We may assume that in a proper proceeding, instituted without unreasonable delay, and by a party
In Higbee v. Daeley et al., 109 N. W. 318, 15 N. D. 339, this court held that one who seeks to have a sale, under proceedings regular on their face, adjudged void must show affirmatively that he asserted his rights promptly after the discovery of the facts. In that case a foreclosure was conducted in the name of-the original mortgagee after it had assigned the mortgage; the assignment never having been recorded. The property was bid off by the assignee of the mortgage, and a sheriff’s deed issued to such assignee. The record disclosed an absolutely perfect title in the holder of the sheriff’s deed, and tlie defendant was a purchaser in good faith, as in the present instance. The court says: “It is also apparent that the defect is not one which could, under the circumstances of the case, cause any actual loss or prejudice to the plaintiff or any one else. There was a default which authorized a foreclosure, and the actual owner of the debt caused the apparent foreclosure to be made, and reaped the fruits thereof. The owner of the fee, or any other person entitled to redeem, were given the same notice of the sale, and had the same right to redeem, as they would have had if the foreclosure had been made in the name of the assignee of the mortgagee.” These were among the reasons given for holding the mortgagor, or plaintiff in that case, to the use of rea'sonable diligence to avoid the sale. The plaintiff did not commence his action for twelve years after the sale, and ten years after the time the entire debt due under the mortgage matured; and, although it is not affirmatively shown that he had actual knowledge of the sale, it was held that: “If the plaintiff knew of the facts as to the real ownership of the mortgage before third parties acquired rights, but nevertheless permitted this apparently valid sale to stand unchallenged, he is manifestly in no position to invoke the aid of a court of equity. His continued silence under such circumstances would be equivalent to a fraudulent concealment which would estop him to deny the rights of innocent purchasers.” In the case at bar the.plaintiff and his attorneys knew all about the defective sale. Williamson conducted it; was attorney for the executor, and also attorney for plaintiff in the trial of this case in the district court. See, also, Johnson v. Erlandson, 14 N. D. 518, 105 N. W. 722. Bausman v. Faue, 45 Minn. 412, 48 N. W. 13, is directly
For these reasons we are of the opinion that the trial court erred in quieting title in respondent. We might rest our opinion on other grounds. It is suggested that the facts in this case bring it within the rule of Gates v. Kelley, 15 N. D. 639, 110 N. W. 770, but as this is only touched upon in the brief, we shall pass it, as well as the question of the deed being given when the grantor had not been in possession or received rents or profits for many years. It is intimated' that the deeds from the parties claiming under the will of Hannah K. Loring conveyed title.’ They had nothing to deed. Their interest in the premises in the controversy had been sold by the executor. They had no legal or other title to convey, and they had received and accepted the proceeds of such sale. It is evident that gross frauds were perpetrated upon all the grantors in procuring the deeds to Wetherby.
The judgment of the district court is reversed, and title quieted in the appellant as to all claims of the respondent and parties claiming under or through him.