Bowman v. Retelieuk

Robinson, J. This action is for the cancelation of a mortgage lien. Both parties claim under a common grantor. The complaint is in effect that in 1904 Betelieuk made two mortgages, which have been assigned to Burke, and they have not been paid, and under a subsequent mortgage and the foreclosure of the same the plaintiff has become the owner of the title to the land in question. The plaintiff says to Burke: “My grantor gave you two prior mortgages which have not been paid though more than ten years have elapsed since such mortgages became due. Therefore I demand that your mortgages he canceled, with costs.” Now, the plaintiff stands in the place of his mortgagor and for him says in effect: “It is more than ten years since I gave you those two prior mortgages, and I have failed to pay either principal or interest. [137] Therefore I demand that the mortgages be canceled, with costs, and the court gave judgment that the mortgages be canceled, with $51.40 costs. It seems quite ridiculous for a party to base a cause of action on an averment that he gave a mortgage and never paid it, and it is clearly contrary to the well-considered decisions of this court. Tracy v. Wheeler, 15 N. D. 248, 250, 6 L.R.A.(N.S.) 516, 107 N. W. 68. But it is claimed that the law has been changed by chapter 3, Laws of 1909, which purposed to amend a section of chapter 5, Laws of 1901, in regard to a reply. It reads: “No reply shall be necessary on the part of the plaintiff except when the defendant in his answer claims a lien or encumbrance upon the property which prior to the commencement of the action was barred by the Statutes of Limitation or which shall have been discharged in bankruptcy. . . . The plaintiff may reply, setting up such defense and avail himself of the benefit thereof.” Now if it was the purpose of the statute to change the substantive law under the guise of changing the form of pleading, then it is not an amendment and the purpose of the act is not expressed by its title. The title of chapter 3, Laws of 1909, relates merely to a matter of pleading, — a reply, — and not to any substantive act. If the purpose of this act was to give a party a right to maintain an action to cancel an outlawed mortgage, then that purpose should have been expressed in its title. Doubtless it is competent for a party to show by his pleadings that he gave a mortgage and disregarded his obligations for ten years and “to avail himself of the benefit thereof.” But, as this court has held, such benefits amount to nothing and give no cause of action. It is vain for a party to plead the default of himself or' his grantor as a cause of action or of benefits. The law does not offer a reward for the violation of contract. Judgment reversed.