Blessett v. Turcotte

Carmody, J. This action was commenced on the 17th day of February, 1907. The amended complaint alleges, in substance, as follows: That the plaintiffs have an estate and interest in certain land in Towner county, North Dakota, to wit, the N. E. ^ of section 20, township 162, of range 68. That in 1891 the land was patented t.o plaintiff Blessett, and that by deed he conveyed some title or interest — 153 — therein to plaintiff Abbey. That plaintiffs are entitled to the immediate possession of said land. That the defendants claim certain estates or interest in said land adverse to plaintiffs. That in the spring of 1897, the said land being vacant and unoccupied, the defendants entered upon and took possession of the same, and that since said entry have remained in possession of and cultivated the same. . That in the summer of 1896, the land being, vacant and unoccupied, the defendants entered upon the same, plowed back 40 acres that had been previously broken and cultivated, and did not fence the land or live on it or put any buildings on it. That the use and occupation of said land was worth $400 per year. That the adverse claim of defendants is based on a mortgage dated January 25, 1890, made by plaintiff Blessett to W. F. Galloway to secure $700 and on an assignment of the mortgage to defendants, also on a pretended tax deed dated March 11, 1897, made by the county auditor to W. F. Galloway, and on a deed from Galloway to defendants dated May 20, 1897. That said tax deed is void, and defendants have never had any title or interest in or lien upon said land, except under said mortgage, and they have wrongfully failed to pay or account for the yearly rents and profits of said land; that during the first five years the rental value of said land was enough, and more than enough, to fully pay and discharge said mortgage debt, which did not exceed the sum of $300, when the mortgage was assigned to defendants. Plaintiffs ask that the defendants set forth all their adverse claims to said property, and that the validity thereof be determined and that the same be adjudged null and void; that plaintiffs do have and recover the immediate possession of said land with $400 a year for the rental value thereof, and that so much of the yearly rental value as may be necessary be first applied to the satisfaction and discharge of the mortgage in the same manner as if it had been indorsed thereon on the 1st day of December each year, and that plaintiffs have such other and further relief as may be just and the costs and disbursements of this action. Defendants deny that plaintiffs have any estate or interest in said land; deny that plaintiff Blessett holds the legal title in trust for said other plaintiff, and allege that by virtue of a quitclaim deed dated February 13, 1907, plaintiff Blessett conveyed all his interest in said land to plaintiff Abbey, and allege that defendants are the owners and — 154 — entitled to the possession of said land by virtue of a tax deed dated March 11, 1897, issued by the county auditor of Towner county to W. F. Galloway and by a warranty deed from Galloway to said defendants executed May 20, 1897; deny that the deeds and mortgages and papers mentioned in plaintiffs’ complaint are void, and allege that said deeds and papers are valid and legal; that said mortgage was given for a good and valuable consideration. Defendants allege that more than three years have expired since the execution and delivery of the tax deed mentioned in plaintiffs’ complaint and set forth in defendants’ answer; as a further defense, that defendants are the owners of the said land and have been in actual, open, adverse, and undisputed possession of such land for more than ten years prior to the commencement of this action, that they have paid the taxes and assessments legally levied thereon during said time, and that plaintiffs’ alleged cause of action accrued more than ten years prior to the commencement of this action, and that the same is barred by the statute of limitations. The facts established on the trial, as far as material here, are as follows: The land was patented to Bobert Blessett. Blessett mortgaged the land to W. P. Galloway, defendant’s grantor, January 25, 1890, to secure payment of a note for $700 of even date due January 25, 1891. On the 1st day of December, 1891, the land was sold for the delinquent taxes of 1890 to the state of North Dakota, and a certificate of sale issued thereon to the said state of North Dakota. On the 8th day of February, 1894, the said certificate of sale was assigned by George L. Main, county auditor of Towner county, to W. P. Galloway, in which assignment the land was described as the N. E. of section 2. On the 25th day of November, 1896, notice when time for redemption from the said tax sale, hereinbefore mentioned, would expire, was published, in which notice the land was described as the N. E. | of section 2. On the 11th day of March, 1897, a tax deed on the tax sale hereinbefore mentioned was made by the county auditor of said Towner county to said W. F. Galloway. In the fore part of June, 1896, the defendant E. L. Turcotte by an oral contract made with W. P. Galloway, through his agent Geo. Galloway purchased said land for the sum of $300 and took possession of it, broke 40 acres, farmed and cultivated' the land ever since, until the trial of the action, and paid all — 155 — taxes levied and assessed against said land beginning with the year 1896. At the time defendant Turcotte made the agreement with said Galloway for the purchase of said land, Turcotte took possession and went to breaking on the land. No person laid any claim to said land until the spring of 1907, when plaintiff Blessett wrote defendant Tur-cotte a letter stating that he had sold the land. As a payment for the purchase price of said premises on August 10, 1896, defendant E. L. Turcotte executed three promissory notes for $100 each, payable to W. F. Galloway, due, respectively, November 1, 1896, November 1, 1897, and November 1, T898, which said notes were secured by a real estate mortgage executed on said premises to said W. E. Galloway by defendants Turcotte, who are husband and wife; that said notes were paid; that on the 20th day of May, 1897, said W. E. Galloway and wife executed and delivered to defendants Turcotte a warranty deed of said premises, consideration $300. On December 30, 1901, the said W. E. Galloway assigned to defendant E. L. Turcotte the real estate mortgage hereinbefore mentioned, given by plaintiff Blessett to said Galloway. On February 13, 1907, plaintiff Blessett conveyed to plaintiff Abbey by deed of quitclaim all his interest in said premises, and in the same instrument assigned to said Abbey all of Blessett’s interest in the rents and profits, and authorized him to commence and maintain such action as may be necessary to recover the possession of such land and the rents and profits, and also appointed said Abbey his (Blessett’s) attorney in fact to commence such action. The said quitclaim deed was executed in the city of Winnipeg, in the province of Manitoba, Canada. Plaintiff Blessett never paid any part of the indebtedness secured by the mortgage given by him to W. E. Galloway. The case was tried by the court without a jury, and on the 21st day of December, 1907, the court made findings of fact and conclusions of law in favor of plaintiffs and against the defendants. The court found, among other things, that the defendants claim some interest or title to said lands adverse to plaintiffs, and that said adverse claim is based on the $700 mortgage from Blessett to Galloway, dated January 25, 1890, an assignment of said mortgage, the tax deed, hereinbefore mentioned, dated March 11, 1897, and the warranty deed, hereinbefore mentioned, given by Galloway to defendants Turcotte, and also on an oral agreement made in the summer of 1896, whereby in con — 156 — sideration of $300, secured by three promissory notes and a mortgage on said land, the said Wm. F. Galloway did promise and agree to convey to the defendants title to said land. Pursuant to said promise he made to them a warranty deed and an assignment of said mortgage. The court also found that the tax deed is void; that neither said W. F. Galloway nor the defendants have ever had any title or lien upon said land, except under said mortgage. In the summer of 1896, the land being vacant and unoccupied, the defendants entered upon the same and plowed back 40 .acres that had been previously broken and cultivated. There is no evidence and no claim that defendants fenced the land or lived on it or put on it any buildings. There is no direct evidence to show the amount due on the mortgage given by Blessett to Galloway, except that in consideration of $300, secured by three promissory notes, the mortgagee, Galloway, agreed to convey said land to defendants and made to them a deed of the land and an assignment of the mortgage; that during the years 1897 to 1907, inclusive, the reasonable value of the use and occupation of said land was enough, and $150 more than enough, to pay and discharge the mortgage debt. As conclusions of law, plaintiffs are entitled to judgment that said tax deed is null and void, that it be canceled and annulled, and that said mortgage be discharged and canceled, and that the plaintiffs do have and recover the possession of said land, and that the defendants and each of them have no right or title therein, also that the plaintiffs do have and recover a judgment of $150 against defendants and costs. Judgment was entered pursuant to said findings of fact and conclusions of law, from which judgment this appeal is taken. Appellants desire a review of the entire case in this court. We are met at the outset by a motion of respondents to strike out the proposed statement of the case; excepting only the first six typewritten pages relating to the eight-seven exceptions. Said motion is made on the ground that no copy of any other part of the statement of the case was ever served on plaintiffs’ attorneys, and on the ground that no part of the statement of the case which- is included in the printed abstract was ever served on the plaintiffs’ attorneys, and that nothing therein and no part thereof or anything purporting to be a copy of the same was at any time served on the plaintiffs’ attorneys between the trial of this action and the time when the printed abstract was served. — 157 — We are also asked to strike from the printed abstract so much of the same as relates to the statement of the case and the stenographer’s minutes and the exhibits and all of the abstract excepting the judgment roll. Such motion is based on the annexed affidavit of J. E. Robinson, the pleadings and proceedings herein, the records on file in the office of the clerk of the supreme court, and on the printed abstract herein. The affidavit of J. E. Robinson is quite lengthy, and states, in substance, that the only proposed statement of the case ever served on plaintiffs’ attorneys was the six typewritten pages mentioned in. said motion, marked, “Statement of the case,” consisting of eighty-seven exceptions; that neither the stenographer’s minutes nor a copy of the same nor any of the exceptions thereto attached were ever served on the attorneys for the plaintiffs; that the printed abstract herein does not contain a copy of any part of the six pages that were served as a statement of the case; that there was not served on the attorneys for the plaintiffs any specification such as is required by rule 16 of this court (91 N W. ix). This motion must be denied. The action was tried under § 7229, Rev. Codes 1905, familiarly known as the “Newman Law,” which, as far as material here, is as follows: “In all actions tried by the district court without a jury, in which an issue of fact has been joined, excepting as hereinafter provided, all the evidence offered on the trial shall be received. ... A party desiring to appeal from a judgment in any such action shall cause a statement of the case to be settled within the time and in the manner prescribed by article 8 of chapter 10 of this Code. . . . But if the appellant shall specify in the statement that he desires to review the entire case, all the evidence and proceedings shall be embodied in the statement.” Section 7058, Rev. Codes 1905, provides, among other things, as follows: “The proposed statement and amendments must, within twenty days thereafter, be presented by the party seeking the settlement thereof to the judge, who tried or heard the case upon five days’ notice to the adverse party. At the time designated the judge must settle the statement. If no amendments are served, or if served, are allowed, the proposed statement may be presented with the amendments, if any, to the judge for settlement without notice to the adverse party.” The proposed statement in the case at bar, consisting of six typewritten pages, served — 158 — upon the plaintiffs’ attorneys, contained a specification that appellants desired a review of the entire case in this court. Rule 15 of this court (91 N. W. viii), as far as material here, is as follows: “In all cases where the specification shows that the entire case is to be reviewed in the supreme court, the statement of the case must contain a complete and literal transcript of the stenographer’s minutes (including all objections, motions, rulings, and exceptions appearing therein), corrected by the district court on settlement to conform to the truth, and a literal transcript of all evidence offered by deposition (including all objections, motions, rulings, and exceptions shown by such depositions), and must contain all of the evidence offered (including exhibits) and proceedings had upon the trial.” Plaintiffs’ attorneys knew that the trial court had no authority to settle the proposed statement of the case served upon them. They served no amendments, and, when the proposed statement was presented to the trial court, it was settled in the only way in which the trial court could have settled it. There is no claim that the statement does not contain a complete and literal transcript of the stenographer’s minutes, including all objections, motions, rulings, and exceptions, and all exhibits and proceedings had upon the trial. Respondents have not been prejudiced by the irregularity, if any, in the trial court’s settling the proposed statement of the case, and it would be extremely technical to grant this motion. 3 Enc. Pl. & Pr. p. 500, and cases cited; Scribner v. Gay, 5 Mich. 511. This brings us to the merits of the action. Appellants claim: (1) The tax deed to Galloway was valid on its face. (2) It has been of record and possession held under it for more than nine years before action was commenced. (3) There was no competent evidence to impeach its validity. (4) E. L. Turcotte was the assignee of a mortgage given by Blessett for $700 and accrued interest, no part of which had been paid. (5) Turcotte had paid all taxes on the premises since 1896. (6) Blessett had abandoned the land. (7) If Turcotte was not the owner under the tax deed, he was the mortgagee in possession. In our judgment the tax deed is void. The assignment of the certificate of sale to Galloway is void. It describes the land as part of section 2, instead of section 20. The assignment of the tax sale certificate must describe the land. It must be in writing and under the — 159 — hand and seal of the county auditor. Rev. Codes 1905, § 1588. The redemption notice is null and void. It describes the land the same as the assignment. The notice must describe the land, the amount for which the same was sold, the amount required to redeem, and the time when the redemption period will expire. Rev. Codes 1905, § 1608; Blakemore v. Cooper, 15 N. D. 5, 4 L.R.A.(N.S.) 1074, 125 Am. St. Rep. 574, 106 N. W. 566. It is undisputed that in the summer of 1896, the land being vacant and unoccupied, defendant entered upon said premises and took possession thereof, and has held possession continuously ever since. ITis possession during all that time has been confessedly adverse. Plaintiffs allege, and it is undisputed, that the adverse claims of defendant are based upon the mortgage and tax deed. No claim is made but that the mortgage given by Blessett to Galloway was a good and valid mortgage, and that no part of the same was ever paid. It is apparent from the evidence that plaintiff Blessett abandoned the land añd moved to Canada. He allowed the land to be sold for the taxes of 1890 and to go to a tax deed. He paid no taxes on the land beginning with the year 1896, and probably not before that time. The evidence does not show who paid the taxes on said land for the years 1891, 1892, 1893, 1894, and 1895. He made no claim to the land until February 13, 1907, when, for a consideration of $1, he conveyed his interest in it by deed of quitclaim to his coplaintiff, Abbey. This deed was made and executed at Winnipeg, Canada. As hereinbefore stated, plaintiff Blessett abandoned the land and moved to Canada, where he resided at the time the quitclaim deed to his coplaintiff, Abbey, was made. The mortgage executed by Blessett to Galloway gave him the right to pay the taxes and add the amount so paid to his mortgage debt. By virtue of his purchase of said premises from Galloway in the summer of 1896, appellant E. L. Turcotte succeeded to whatever rights Galloway had in said premises, and became the equitable assignee of the mortgage executed by plaintiff Blessett to Galloway January 25, 1890. It is undisputed that defendant Turcotte paid the taxes on said premises from 1896 to 1907, inclusive. There is no claim that any portion of the taxes so paid are invalid. The complaint is not strictly one for determining adverse claims. It seems to be a combination of an action to determine adverse claims for an accounting and to redeem from the — 160 — $700 mortgage. It prays that so much of the yearly rental value as may be necessary be first applied to satisfy and discharge the first mortgage in the same manner as if it had been indorsed thereon on the 1st of December each year, commencing with the year 1897, and that the plaintiffs have such other and further relief as may be just. This is an equitable action to be determined on equitable principles. Before the plaintiffs are entitled to the relief prayed for, they must do equity and reimburse the defendant E. L. Turcotte for all taxes paid by him, also pay him the full amount due upon the mortgage, as well as the value of the permanent improvements, if any, placed on said premises by defendant or his grantor. On the other hand, the latter should be required to account to plaintiff for the reasonable value ■of the rents and profits of such land during the time he has been in possession thereof. The proof upon these matters, as well as upon the question as to the length of time, if any, that defendant and his grantor were in possession as mortgagees, is entirely lacking or altogether too meager to enable this court to intelligently dispose of the equities between the parties. Owing to the condition of the record in these respects, this court has been given much difficulty which might hare been avoided. We are, of course, anxious that each party be accorded his full legal and equitable rights, and we have finally concluded that the only safe course to adopt is to order a new trial upon all issues excepting the issue involving the validity of the alleged tax deed. If, upon another trial, defendant shall fail to establish possession under the mortgage for a sufficient length of time to bar plaintiff’s right of redemption, then the district court is directed to take a full account between the parties, as to the sum due, if any, on the note or notes secured by the mortgage; the amount of taxes paid by the defendant and his .grantor on said property; the value of the permanent improvements, if any, made to said real property by defendant or his grantor; and the reasonable value of the use of such property or the rents and profits thereof, during the time defendant has been in possession of same. The judgment of the District Court is reversed, and a new trial ordered in accordance with this opinion. Morgan, C. J., and Fisk, J., concur. Spalding and Ellsworth, JJ., dissenting.