Arnold v. Nichols

Beard, Justice. The defendant in error, William R. Nichols, brought an action against the plaintiff in error, Alice Arnold,, in the District Court to quiet title in him to certain described real estate and to cancel a certain mortgage of record thereon. Decree was entered in favor of plaintiff 'below, and defendant, Arnold, brings error. Defendant in error filed'a motion to strike the bill of exceptions from the record for the reason that it was not presented for allowance within the'required time. The decree was rendered May 5, 1916; the motion for a new trial de.nied May 13, 1916, and the bill was not presented' for allowance until September 30, 1916. The trial judge who signed the bill certifies that “time for allowing bill of exceptions was not asked for or granted.” Following the rule announced in International Harvester Co. v. Jackson Lumber Co., 170 Pac. 6, decided by this court January 21, 1918, the motion to strike the bill from the record must be granted and the bill of exceptions is therefore stricken from the record. In the absence of a bill of exceptions the only question presented by the record here is the sufficiency of the petition to state a cause of action. The petition was not demurred to in the court below and the question is raised for the first time here by the petition in error. While the objection that the facts stated in a petition are insufficient to constitute a cause of action may be made for the first time in this court, the better practice is to do so by demurrer in the trial court. The petition in this case is quite inartificially drawn, but, fairly construed, we think it states a cause of action. It is alleged, in substance, that plaintiff is the owner in fee simple of the land described in the petition by virtue of a warranty, deed. That Charles Graham and Menirva J. Ross, prior to [462] the time plaintiff acquired title to said land, were the owners thereof and conveyed the same :by warranty deed to John A. Ross through whom by mesne conveyances plaintiff obtained title. That at the time of said conveyance by said Graham and Menirva Ross the mortgage sought to be cancelled in this action was a valid and subsisting lien of record on said land. That thereafter and after the debt secured by said mortgage became due, said Graham purchased said mortgage and had the same assigned to him, and thereafter assigned the same, without recourse, to defendant, Alice Arnold, both of which assignments were placed on record. We think the petition when liberally construed, as it must be when attacked for the first time in this court, fairly alleges the warranty of the title against encumbrances ;by Graham, a breach of the warranty by reason of the existence of the mortgage on the land at the time he conveyed it, and that he thereafter became the owner of the mortgage. Upon the facts alleged in the petition, the purchase of the mortgage by Graham extinguished the lien. The rule being that payment by one who has warranted against in-cumbrances extinguishes them. “When one who has conveyed land with warranty, which is subject to a mortgage, whether made by him or by another, afterwards takes an assignment of such mortgage, he holds it for the benefit of the person to whom he has granted the land, and the mortgage is in fact discharged by coming into his hands. Even if he should assign it to one who in good faith pays full consideration for it, the purchaser would acquire no lien upon the land.” (2 Jones on Mortgage (7th Ed.), Sec. 867.) The facts stated in the petition in this case brings it within that rule. Graham by his deed covenanted to protect the title against incumbrances;' and at that time the mortgage in question was a valid lien upon the land. When he took it up he simply did that which he had agreed to do, and by so doing the lien was extinguished. All he acquired by his purchase of the mortgage, if anything, was a personal claim against the mortgagors, and his assignee, de [463] fendant Alice Arnold, took nothing more, especially as the debt secured by the mortgage was then past due. There 'being nothing stated in the petition which would tend to take the case out of the rule above stated, the petition stated a cause of action. No prejudicial error being made to appear by the record, the judgment is affirmed. Affirmed. Potter, C. J., and Blydenburgh, J., concur.