O'Leary v. Schoenfeld

Bruce, J. (after stating the facts as above). The main question 'which is presented to us for determination is this: A. D. Clark & Company, holder of a $640 first mortgage, foreclosed, and the Dayton-Clark Land Company, holder of a second mortgage for $1,600, purchased at the sale for $732.35. Later the plaintiff’s grantor, the Moody County Bank and the holder of a third mortgage, which by its terms was subject to the first and second mortgages before mentioned, attempted to redeem from the Dayton-Clarlc Land Company, without — 382 — paying or offering to pay in addition to the sum called for by tbe sale and amounting to $889.73, the sum of $1,600 and interest, the-amount of the Dayton-Clark Land Company second mortgage. It is. admitted that part at least of this $1,600 mortgage was not at the time-due. It is also admitted, however, that no tender of any amount of said mortgage was either made to the sheriff or to the Dayton-Clark Land Company. Was such redemption effectual as against the holder of a sheriff’s deed, which was afterward issued to the said Dayton-Clark Land Company, and as against the subsequent grantees of said company, a sheriff’s deed having been first issued to the Dayton-Clark Land Company and later another sheriff’s deed to the Moody County Bank? We think it was not. The statute indeed seems to be very clear upon the subject, and as the Dayton-Clark Land Company was a purchaser at a sheriff’s sale, and not a redemptioner under a lien, the-case is in no way limited by the decisions of this court in cases where the rights of redemptioners have been considered. Section 7140, Bev. Codes 1905, being § 7754, Comp. Laws 1913, provides: “The judgment debtor or redemptioner may redeem the property from the purchaser within one year after the sale, on paying the purchaser the amount of his purchase, with 12 per cent interest thereon, together with the amount of any assessment or taxes which the purchaser may have paid thereon after the purchase and interest at the same rate on such amount; and if the purchaser is also a creditor, having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such lien with interest.” We find nowhere in the statute which relates to the rights of a redemptioner as against a purchaser any provision which requires the purchaser, who as a creditor has other liens at the time of his purchase,, to file any notice of such liens such as is required by § 7756, Comp. Laws 1913, where the person sought to be redeemed from is a redemptioner, but not a purchaser. The Moody County Bank also must be presumed to have had notice-of the lien of the second mortgage, which was held by the Dayton-Clark Land Company, as the third mortgage, under which it sought to redeem, was expressly given subject thereto, and the second mortgage was also-of record. The purpose of the statute seems to be clear. “The legislative pur — 383 — pose, no doubt, was to obviate the necessity of requiring the person from whom the redemption is made, in order to protect his liens, which are subsequent to the one under which the sale was made, but prior to that of the redemptioner, to go through the useless ceremony of redeeming back from the person who had just redeemed from him.” Leverson v. Olsen, 25 N. D. 624, 142 N. W. 917. It is quite clear that the only right that the Moody County Bank had to redeem was a statutory right. See State ex rel. Brooks Bros. v. O’Connor, 6 N. D. 285, 69 N. W. 692; North Dakota Horse & Cattle Co. v. Serumgard, 17 N. D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N. W. 455, 456. The conclusion is inevitable that when appellant’s grantor, the Moody County Bank, paid only the amount of the face of the certificate of sale and interest and fees, and omitted to pay or tender the amount due on the $1,600 mortgage held by the Dayton-Clark Land Company, it failed to make an effective redemption, and consequently its certificate of redemption and sheriff’s deed based thereon are null and void. 3 Freeman, Executions, 3d ed. § 320; Vandyke v. Herman, 3 Cal. 295; Knight v. Fair, 9 Cal. 117. But it is claimed that the judgment of a dismissal was erroneous because the defendants have failed to show title in themselves, and the question is asked: “Where, in an action to quite title, plaintiff has proved in himself a good record title, carrying with it the presumption of actual possession, is it competent for a defendant, without showing the slightest interest in himself in the premises in controversy, to prove title in a third person in which he is in no manner in privity, and thereby attempt to defeat plaintiff’s title?” We fail, however, to see that the defendants have failed to show any interest or title in themselves, or that the answer fails to allege the same, and refer merely to the statement of facts and to the chain of title therein set forth as being conclusive on this proposition. The action, too, is one to determine adverse claims in which the plaintiff positively asserts title in fee simple in himself, and the answer includes a general as well as a specific denial to the allegations of the complaint. It is elementary that, in an action to determine adverse claims, the plaintiff must recover upon the strength of his own title, and that the failure to show such title will be fatal to his action. It is also clear that a general denial in such an action puts plaintiff’s title in issue. See Larson v. Christian — 384 — son, 14 N. D. 476, 106 N. W. 51; Hebden v. Bina, 17 N. D. 235, 138 Am. St. Rep. 700, 116 N. W. 85, 87. “The difficulty with the plaintiffs case,” says the supreme court of Wisconsin, in McGinnis v. Wheeler, 26 Wis. 651, 655, “is, that the defendant has the first chance to apply that rule, having proved to the satisfaction of the court below, and of this court, that the plaintiff had no title, and the burden being on her to show title in order to maintain the action, she becomes the first victim of the rule that one without a title” has no right to possession. The question, indeed, is not raised by the record. Defendants are not flere seeking to defeat plaintiff’s title by proof of such title in a third person. They are merely seeking to show that the plaintiff never at any time had any title in the land at all. They seek to show, and have shown, this by proving that plaintiff’s title could only be based upon a redemption from the purchaser at a prior mortgage sale to the Dayton-Clark Land Company, and that no such redemption has ever been made or accepted by the said company. We think there is no merit in the contention that there is no evidence in the record that the Dayton-Clark Land Company’s second mortgage was not paid at the time of the attempted redemption by the plaintiff’s grantor. The action is brought, and the relief is sought, not by the defendant, but by the plaintiff. The complaint asserts a title in fee simple. This is denied by the answer. The sheriff’s deed to Schoenfeld. the grantor of the defendants Tipple, is prior to that issued to the plaintiff’s grantor, the Moody County Bank. The record also shows that the mortgage to the Dayton-Clark Land Company was of record, and still is of record, and is mentioned and assumed in the subsequent conveyances. It is also specifically mentioned as an encumbrance in the plaintiff’s exhibit “L,” which is a mortgage from Bichard Champion to the Empire Land Company, which mortgage is taken subject thereto. The mortgage is put in evidence, and it would seem that the burden of proving payment, if any there was, would be upon the plaintiff. There is, too, to be found in the record, a letter from the attorneys for the plaintiff to one of the defendants, which practically concedes the nonpayment of the lien. Nor do we see any merit in the objection that the second mortgage to the Dayton-Clark Land Company “shows upon its face that the — 385 — land mortgaged was not in Mercer county, North Dakota, and in no manner affects the land in suit.” The mortgage, in addition to stating the county, positively gives the section, township, .and range. Subdivision 14 of § 7319, Bev. Codes 1905, being § 7938, Compiled Laws of 1913, provides that the courts of North Dakota shall take judicial notice “of the limits of the county and the fact that a place proved was within such limits.” Subdivision 15 of the same section provides that such courts shall take judicial notice “of the lines of the counties.” Subdivision 30 of the same section provides that the courts shall take judicial notice “of whatever ought to be generally known within the limits of the court’s jurisdiction.” Subdivision 49 of the same section provides for like judicial notice “of the government surveys and the legal subdivisions of public lands.” Under these rules the court must take judicial notice that section 11, township 144, range 85, is in Mercer county, and not in Oliver county, and hence the second mortgage was properly recorded in Mercer county. The recording of this mortgage was notice to the appellant, and to his grantor, and sufficient to put them on inquiry. Objection is made to the introduction in evidence of the deposition of Charles Lamb, for the reason stated on the trial, “that said deposition was not sealed up and indorsed with the title of the cause and the name of the officer taking the same, and was not subscribed, authenticated, and transmitted as provided by the laws of this state,” and to the introduction of the deposition of the witness Joseph W. Ilobbins, for the reason that “the said deposition was not sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the court, as provided by § 7282, Bev. Codes 1905 (§ 7900, Comp. Laws 1913), and the Code of Oivil Procedure of the state of North Dakota, that said deposition is not certified, indorsed, subscribed, and transmitted as provided by the laws of the state, and is not authenticated as provided by law.” It is contended in appellant’s brief that “these so-called depositions were not sealed up and indorsed with the title of the cause and the name of the officers taking the same, and were not by such officers addressed and transmitted to the clerk of the district court of Mercer county, North Dakota, in which court the said action was pending. They were at no time under seal, but on the contrary, Mr. Lamb, the attorney for re — 386 — spondents, carried these typewritten sheets, called depositions, in his pocket, and handed them to the clerk,” and reference is made to § 7282, Rev. Codes 1905, being § 7900 of the.Compiled Laws of 1913, in which it is provided that “a deposition so taken shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the district court of the county in which the action or proceeding is pending, if the same is pending in the district court; otherwise to the court, officer, or tribunal in which the action or proceeding is pending. It shall remain under soal until opened by order of the court, officer, or tribunal, or at the request of a party to the action or proceeding, or his attorney.” The trial court in a memorandum opinion made the following statement: “Before the trial, Rice & Benson, attorneys, appearing for plaintiff, filed written exceptions to the depositions of Joseph W. ILobbins and Charles B. Lamb, and filed written motion to suppress both of said depositions. The exceptions to said depositions were that they were not indorsed with the title of the cause by the notary before whom they were taken, and were not addressed to the clerk of the district court of Mercer county, North Dakota, and no indorsement of the filing of the same by the clerk of court appeared on the envelop containing same, and as to the deposition of said Charles B. Lamb, the further exception that he was present in person before the court. The clerk of court and said Charles B. Lamb testified orally as to the depositions, and it appears therefrom that the depositions; when taken pursuant to the notice attached and a stipulation by counsel for plaintiff, were placed in an envelop, sealed and delivered to the said Charles B. Lamb, who is attorney for the defendants Tipple, and were by him carried to and delivered to the clerk of court on the day before the trial, and had not been opened, altered, or interfered Avith in any way. The envelop containing the depositions contained no indorsement, by the notary taking the depositions, of the title of the case, or of the fact that it contained depositions in the case, and was not addressed to the clerk of court, and contained no indorsement of filing by the clerk of court. The court is fully satisfied that the depositions are the identical depositions that Avere taken on notice to counsel for plaintiff, and with their consent, and that they have not been tampered with in any way, and therefore denied the motion to suppress the depositions;-but refused to allow the use of the deposition — 387 — of the said Charles F. Lamb, and he testified as a witness concerning the subject-matter contained in his deposition. The court is firmly of the opinion that the statute with reference to the sealing, indorsing, and transporting of depositions is only directory, and for the purpose .of preserving the identity of the deposition, and to prevent fraud by altering the deposition. F. A. Patrick & Co. v. Nurnberg, 21 N. D. 377, 131 N. W. 254.” This finding of the trial court is abundantly sustained by the testimony of both the witness Lamb and by the clerk of the court, and the only criticism that can be offered is the fact that the depositions were carried to North Dakota by the attorney for the defendants, and not sent through the mail or by a special messenger. We are of the opinion, also, that the trial court did not err in its ruling. There is a presumption in favor of the regularity of taking depositions and the proper performance of duty by the officer taking the same; and a motion to suppress a deposition should generally be denied where no prejudice is shown which arises from the defect complained of. F. A. Patrick & Co. v. Nurnberg, 21 N. D. 377, 131 N. W. 254. The word “transmit” does not mean the personal carrying by the notary, nor necessarily the sending through the mails, but is satisfied by any means selected by the notary which will secure the safe transfer of the document without its being tampered with by any one. Davies v. New Castle & L. R. Co. 71 Ohio St. 325, 73 N. E. 213, 216; 4 Words & Phrases, 2d Series, 985. The presumption of the performance of duty would lead to the presumption that the witness Lamb was the agent for the transmission of the document, who was appointed by the notaiy. The proof is positive that the seals were unbroken when received by the clerk, and there is no pretense that the depositions were in any way tampered with, or were in any way different from those taken by the notrry public. This being the case, we think that no error was committed in allowing them to be introduced in evidence. Waterman v. Chicago & A. R. Co. 82 Wis. 613, 52 N. W. 247, 1136; Burrall v. Andrews, 16 Pick. 551; Spear v. Richardson, 37 N. H. 23; Veach v. Bailiff, 5 Harr. (Del.) 379. We may also add that the witness Lamb testified orally, and his deposition was therefore not used; while the deposition of the witness Hobbins was at the most cumulative, and the — 388 — material facts,, which are sought to be established thereby, are abundantly proved by the remainder of the record. The-case is not dissimilar to one where a judge hands his findings of fact and conclusions of law and order for judgment to one of the attorneys in the case to be filed for him, and which is done every day, although the statute, if technically construed, makes it the judge’s duty to file these documents himself. We are not required to believe that our long-honored profession has sunk so low that an attorney who is both an attorney and an officer of the court cannot be trusted with the duty of carrying a sealed package to the clerk of the court, even though he may happen to have some interest in its contents. There is, as we have before said, no pretense or claim of any change in or mutilation of the depositions-, or that the seal was broken when presented to the clerk, nor is there any proof of any misconduct on the part of the messenger whatever. This court has expressly held “that the exception to a deposition which is made on strictly technical grounds should not be sustained in the absence of any showing of prejudice.” We fail to see how the method of transmission which was adopted in any way prejudices the plaintiff in this case. Ueland v. Dealy, 11 N. D. 529, 89 N. W. 325. The judgment of the District Court is affirmed.