Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-01-28
Supreme Court
FROM SARGENT COUNTY.

D. S. B. Johnston Land Company,
Plaintiff and Appellant,
VS..
F. n. Mitchell, Louise NJ. Mitchell,
Charles NJ. Scoville and Olivia SEQ.
vile. Defendants and Respondents.
/. In the statutory action 20 deter
mine adverse claims to real property,
the plaintiff alleges that it has an
interest in such property and that de-
PENDANTS CAIN certain estates or in.
terests in or liens upon the same, ad.
verse 20 plaintiff. The usual prayer
ior judgment quieting the title is
made and plaintiff also prays for the
recovery Of the possession Of the pro-
perry from defendants with a money
judgment for the use and occupation
thereof. BY their answer defendants
put in issue plaintiffs alleged inter-
est in such property but admit that
It has certain equities therein. They
also by way of counter-claim allege
tie in fee and pray that such title
be quieted in them as against all
claims asserted by plaintiff.
The trial court found IN defendants
favor as to the ownership of the land,
but denied them any affirmative re-
lief under their counter-claim except
upon condition that they first do
equity by satisfying Or rendering the
amount Of all claims held by plaintiff
against sucn real property, consisting
Ut two old mortgages long since barr
cd by the statute of limitations and
nunarOuc fayoc mold fhor oruroro<
ing with interest on November i,
1917, TIE SUN of $~2,543.27.
On a trial, de novo in the supreme
coHr: the findings and conclusions of
the trial court are in all things at
firm ed, except as to n question of
TACT mentioned in the opinion, re-
garding which counsel inadvertently
failed to furnish any competent proof.
A new trail is granted for the purpose
OF permitting proper proof thereof to
|"be supplied. es - j.
:. IN the statutory action to deter.
miGc adverse claims to real property
the plaintiff must recover, if at all,
upon the strength of his own title
and not upon the weakness of his ad-
versary's title.
3. Plaintiffs only source of title is
through an alleged foreclosure in
1887 OF a commission mortgage on
The premises upon which there was
only a small sum due. Such mort:
gage was given in 1884 and ran to a
cc-partnership under the firm name
Of d. S. B. Johnston, Son & Hance.
In 1885 a corporation was organized
under the name of d. S. B. Johnston
Land Mortgage Company which pur-
chased and took yer the assets Of
such co-partnership including such
mortgage. At the date Of such at.
tempted foreclosure proceedings
there was nothing of record to show
ownership of this mortgage in such
corporation. Held, following Hebden
". Bina, II n. D. 235, that the exer-
else of the power of sale in said mort
gage by such corporation was not
authorized under the provisions of
sections 5412 Comp. Laws of 1887,
and consequently the foreclosure, was
void and the purchaser at the sale,
the d. S. B. Johnston Land Mortgage
Company, acquired no title thereun.
der, but merely became an equitable
assignee OF such mortgage.
4. A purchaser at a void foreclos.
ure sale does not become a mortgage
in possession unless he acquires the
actual possession Of the premises
through. the expires or implied con-
sent of the mortgagor or owner of the
land. The premises being at the
time unoccupied wild prairie land the
fee owner will be deemed to be in
the possession thereof.
). 4. recital in the sheriff's deed
under foreclosure proceedings by ad-
y~ertisement that the D. S. B. Johns
ton Land Mortgage Company has
been renamed d. S. B. Johnston Land
Company is no evidence Of the fact
Of such change in lame.
g.. The plaintiff having failed to
establish it's alleged title or even that
it is a mortgage in possession, is not
in a position to assail the validity Of
defendants title and right of posses
sion.
l.. For reasons stated in the opin-
ion tie statute against champerty and
maintenance cannot be urged by
plaintiff to destroy defendants title.
S. TO entitle defendants to affirm
alive equitable relief they must do
equity by paying or rendering to the
plaintiff all sums equitably due it, and
the fact that plaintiff purchased one
of its mortgages upon the land long
after it became barred by the statute
Of limitations, does not eXOnerate de-
PENDANTS from paying such sum as
may be due thereon as a condition to
their obtaining affirmative relief.
Syllabus by the County
Appeal from District Court, Sar-
gent County: Allen, j.
From a Judgment in defendants ia
vor. plaintiff appeals.
Affirmed. Opinion of the Court by
Fisk, c. J. .a.
! Watson & Young and +. T. Conmy,
Fargo, N. D., for Appellant.
Purcell & Divet and w. V. Hoag-
land, Wahpeton, N. d., for Respond
ents.
The band at Crazy will give a con-
| cert and lance on LincOln'S birthday.