The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-05-07
DECISION OF THE
SUPREME COURT

In the supreme court Of the state of
North Dakota, October term 1910.
c. B. s. Goss, respondent. VS.. Henry
Herman, Leopold E. Jochem, James e.
Trotman. NJ. Putnam, z. s. severton,
Frederick T. Day, Melvin Grigsby and
all ohtr persons unknown claiming
any right, estate or interest in or lien
or encumbrance upon the property de-
scribed in the complaint and all un-
known heirs, defendants. Melvin
Grigsby and Frederick T. Day, appel
lants.
1. A tax deed executed in the name
of the county Of Eddy by the county
auditor of said county instead OF in
the name OF the state of North Dakota,
is void and conveys no title.
2. In an action to determine ad-
verse claims, when a defendant named
in the summons and complaint pleads
a counter claim asserting title in him
self adverse and superior to that of the
plaintiff, such defendant becomes, as
to his claim Of title, in effect plain
tiff and may maintain his counter
claim in the name OF his grantor in
the same manner as though he had
been the party initiating the suit.
8. Courts of this state cannot take
judicial notice of the assignment or
bankruptcy laws of another state.
4. A copy of deed of assignment
for the benefit of creditors, certified
to be a copy by court commissioner
Of a circuit court of Wisconsin and
containing no original acknowledge
ment by the grantor therein named
is not entitled to record in the office
of the register of deeds in the county
In this state wherein the lands are
situated which are claimed to be con-
veyed bys such deed of assignment.
5. Notwithstanding a copy of a
deed of assignment as described in
paragraph was in fact recorded In
the office Of such register of deeds
the record there of is not competent
evidence of title to land therein des-
cribed.
6. Section 501S, r. C. 1905, contains
provisions relating to the acknowl-
| edgement of an instrument taker
without this state and prescribes T.
necessary requirement to entitle II
10 TSCOTus anu clLiOIB SuS1 4CQuA1C-
ments is one that 1t shah be acknowl.
edged before one of certain Officers
therein named. A court commissioner
is not among those SO named and the
record of an instrument purportinE
to be acknowledged before a cour
commissioner of another state is no
lcompetent evidence in the absence o.
proof that he was authorized by the
| laws of such state to take acknowl
Judgements.
| Z. Records OF proceedings and de-
crees of foreign courts, not exemplifiet
but only certified as correct copie
or transcripts by court commission
er Of such court, not under seal, ar
incompetent as evidence in courts o
this state on the trial of actions there
in.
s. Whether deed by a foreign as
| signee for the benefit of creditor
which has annexed and as a part OF
a decree of a foreign court confirm
ing the sale which such deed purport
to have been made to carry out, an
ordering the execution, and deliver
thereof, such decree containing recit
ais to the effect that it is granite
on the petition of the assignee, con
veys title to land in this state where
in no assignment was in fact made an
no proceedings ancillary to the for
eign assignments have taken place, |
the absence Of proof that 1t was undo
voluntary assignment, it not deter
mined.
8. While possession of real propert
furnishes presumption of title,
does not preclude the adverse part
from showing want Of title in tn
party claiming thorough POSSESSION.
10. On the principle that know
edge is an essential element Of lache
defendants in an action to determiT
adverse claims to real property, WI
allege title in themselves, are not pre-
Guided from maintaing a defense b
j lapse of time while such defendant
were ignorant of the claims Of the az
verse party, prior to the bringing
the actions.
: IL. Under the facts disclosed by IL
a record in this case, although it is
e the supreme court for trial de nov
d and particularly in view OF the Lax
OF evidence on some material question
relative to the title of both appellan
: and respondents, it is remanded to Il
! district court for new trial.
4 (Syllabus by the court)
i Appeal from the district court
Eddy county, Burke j. Action to d
$ termine adverse claims to real prope
ty From a judgment quieting tit
in plaintiffs defendants, Grigsby al
Day appeal.
D. Judgment OF district court vacat
and action remanded for new tri
Maddux Rinker, Grigsby & Orig
by, (Chas. e. Wolfe Of counsel) I
: appellants.
" Geo. w. Thorpe and Edward
e Wright for respondents.
r. Opinoin of the court by Spauldir
e r., all concurring.
Ellsworth. J., being disqualified, d
- not participate, w. G. Crawfol
Judge of the tenth judicial district S
ting in his place by request.