source: Caselaw Access Project

author: SATHRE, Judge.

license: Public Domain

text:
    STEWART et al. v. BERG et al.
    No. 7409.
    Supreme Court of North Dakota.
    July 28, 1954.
    Rehearing Denied Sept 2, 1954.
    J. K. Murray, Bismarck, for appellant A. D. Hostetler.
    Emil A. Giese, Carson, for respondents.
   SATHRE, Judge.

This is an appeal from an order of the District Court denying defendant’s application to vacate a default judgment and for leave to answer. The action was brought to determine adverse claims and to quiet title in the plaintiffs to the following described real estate situated in the County of Grant, and State of North Dakota, to-wit: The Northeast Quarter (NE14), and Northwest Quarter (NWj4), and Southeast Quarter (SE14), of Section Twenty-nine (29), and Northeast Quarter (NEJ4), and Southeast Quarter (SE}4), and Southwest Quarter (SWj4), and North Half of Northwest Quarter (N% NW(4) and Southeast Quarter of Northwest Quarter (SE14NW14) of Section Thirty-two (32), all in Township One Hundred Thirty-two (132) North, Range Eighty-six (86) West of the Fifth Principal Meridian.

The complaint is in the statutory form. Service of the Summons was had by publication as required by statute. There was no answer or appearence by any of the defendants, known or unknown. Judgment by default was entered on the 29th day of July, 1950.

On the 21st day of February 1953, A. D. Hostetler, designating himself as an unknown defendant, served notice of motion to vacate the default judgment and to permit him to interpose answer.

The hearing on the notice of motion to vacate was had before the Hon. J. O, Wig-en, Judge of the District Court of Grant County on the 24th day of July 1953 after which the court entered an order denying the motion to vacate and the defendant Hostetler appealed. The application to vacate the default judgment was not brought within a year after the rendition of the judgment as required by Section 32-1713, NDRC 1943, and therefore his right to reopen was barred unless he could establish that the court in rendering the default judgment was without jurisdiction or had failed to comply with some jurisdictional pre-requisite.

The land involved in this action was acquired by Grant County through tax deed proceedings. Thereafter the plaintiffs in this action purchased the land from Grant County. The record owner at the time the tax deed proceedings were had by Grant County was one John Soehren. The defendant A. D. Hostetler claims to be the owner of Section Twenty-nine (29) Township One Hundred Thirty-two (132), Range Eighty-six (86), Grant County, North Dakota, by virtue of a warranty deed from the said John Soehren dated on the 12th day of December, 1935.

This deed was not introduced in evidence, nor is there any testimony that it was recorded in the office of the register of deeds.

The regularity and validity of the tax deed proceedings by Grant County were not an issue in the District Court and are not an issue here. Three points are presented by the appellant on this appeal:

1. That the district court was without jurisdiction to enter judgment in the default action in that the sheriff’s return was defective, and did not comply with the statutory' requirements; that the affidavit for publication of the Summons was defective and did not comply with the statutory requirements ;
2. That the class of defendants designated as unknown persons had a limitation attached thereto. That there is no allegation in the complaint nor in the affidavit for service by publication that not any of the defendants designated as unknown persons were in possession of the land.
3. That the court abused its discretion in not vacating the default judgment.

The only testimony in the case is that of Emil A. Giese, the attorney for the plaintiffs in the default action who was called as a witness by the defendant A. D. Hos-tetler. He testified that the summons and complaint were dated April 10, 1950 and that on that date said summons and complaint were delivered to the sheriff for service and that on the 11th day of April 1950, the sheriff of Grant County made his return of defendants not found. In his return the sheriff certified that the Summons and Complaint came into his hands for service on the 10th day of April 1950, and that he had made diligent search and inquiry for the defendants named in the Summons and Complaint, naming each of said defendants, and for all other persons unknown claiming any estate or interest in or lien or in-cumbrance upon the property described in the Complaint but that after such search and inquiry for the purpose of serving the Summons and Complaint, he was unable to find any of the defendants in the State of North Dakota or to make personal service of said Summons and Complaint upon any of said defendants. The return was dated at Carson, North Dakota, on the 11th day of April 1950.

Mr. Giese further testified that after the sheriff had made his return and on the 11th day of April 1950 he filed the Summons, Complaint, Sheriffs Return and his Affidavit for Publication of the Summons in the office of the Clerk of the District Court, and that the affidavit for publication was executed by him as attorney for the plaintiff on April 11, 1950, after filing the Summons, Complaint and Sheriff’s Return.

In his brief the defendant asserts that the Sheriff’s Return and the Affidavit for Publication are untrue and false and fatally defective upon their face and that the sheriff made no search for defendants unknown. Clearly it would have been an idle act to attempt to make a search for a person unknown and not in possession and whose interest was not shown in the records of the office of the register of deeds, clerk of the district court or the county auditor.

In the case of Bartell v. Morken, N.D., 65 N.W.2d 270, we said:

“We also point out in answer to a further objection by the plaintiff as to the validity of. these proceedings that there is no requirement as to unknown parties defendant that the sheriff make a return stating that after diligent inquiry for the purpose of serving the summons he is unable to make personal service upon such defendants. The absurdity of such a return is apparent. To require the sheriff to make a return in a civil action showing that he has made diligent search and inquiry for persons unknown and whose interests are unknown would be a completely idle and unfruitful act and one which the law does not contemplate.”

The sheriff’s return certified in the language of Section 28-0620, NDRC 1943, that after diligent search and inquiry for the purpose of serving such summons and complaint he was unable to find any of the said defendants in the State of North Dakota or to make personal service of the Summons and Complaint upon such defendants. The Summons and Complaint were delivered to the sheriff on. April 10th and he made his return on April 11th. The Summons, Complaint, Sheriff’s Return and Affidavit for Publication of the Summons were filed in the office of the Qerk of the District Court April 11, 1950. The Affidavit of Publication of the Summons executed by the attorney for the plaintiffs complied strictly with the requirements of Section 28-0620. It was made and filed at the time of filing of the Summons and Complaint, and after the return made by the Sheriff. The appellant has not cited any fact or circumstance which would indicate that the Sheriff’s Return and the Affidavit of Publication were false and untrue.

The defendant next argues that the designation in the pleadings “all other persons unknown etc.”, is defective and,that under the provisions of Section 32-1706, NDRC 1943, the phrase “and not in possession” should have been added to such designation.

Section 32-1705 prescribes the form for joining unknown defendants and reads as follows:

“In an action to determine adverse claims all persons appearing of record to have estates or interests in, or liens or encumbrances upon, the property, and all persons in possession, may be joined as defendants, and all others may be joined by inserting in the title of the action the following: ‘All other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the complaint.’ ”

Section 32-1706 reads as follows:

“All persons having or claiming an estate or interest in, or lien or encumbrance upon, the property described in the complaint, whether as heirs, de-visees, legatees, or personal representative of a deceased person, or under any other title or interest, and not in possession, nor appearing of record in the office of the register of deeds, the clerk of the district court, or the county auditor of the county in which the land is situated, to have such claim, title, or interest therein, may be proceeded against as persons unknown, and any order, judgment, or decree entered in the action shall be valid and binding on such unknown persons whether of age or minors, and on those claiming under them.”

There is no provision or requirement in either statute to the effect that the phrase “and not in possession” must be added to the designation “unknown defendants.” On the contrary section 32-1706 provides specifically that “all persons having or claiming an estate or interest in, or lien or encumbrance upon, the property described in the complaint, whether as heirs, devisees, legatees, or personal representatives of a deceased person or under any other title or interest, and not in possession, nor appearing of record in the office of the register of deeds, the clerk of the district court, or the county auditor of the county in which the land is situated, to have such claim, title, or interest therein, may be proceeded against as persons unknown”. Clearly the defendant’s contention in this respect is without merit.

The plaintiffs purchased the real property involved herein in November 1943 and took possession at that time and were in possession thereof at the time of the commencement of the action and there is no proof in the record to the contrary.

In his proposed answer the defendant Hostetler states that he purchased the land in question from John Soehren on the 12th day of December 1935 the then owner, “that immediately upon such purchase this answering defendant went into possession of same and remained in possession of said property until the 12th day of December 1942 at which time he moved to Coeur d’ Aleñe, Idaho.”

In the record are also the affidavits of O. E. Loeffler, the register of deeds, O. Heupel, county auditor and M. F. Land-grebe, clerk of the district court, stating that they have made examination of the records in their offices with reference to Section Twenty-nine (29) Township One Hundred Thirty-two (132) North Range Eighty-six (86) West, Grant County, ¡North Dakota, and that there are no instruments of record in their respective offices disclosing that A. D. Hostetler at any time had any interest in or lien or encumbrance upon the said described premises. These affidavits were made March 4, 1953.

Defendant finally contends that the court abused its discretion in not vacating the default judgment.

Section 32-1713, NDRC 1943, provides:

“A defendant in an action to determine adverse claims, proceeded against by name or as an unknown party, or his representative, on application and sufficient cause shown at any time before trial, must be allowed to defend on such terms as may be just, and any such defendant or his representatives upon good cause shown, and on such terms as may be just, may be allowed to defend after trial and within one year after the rendition of judgment therein, but not otherwise.”

This is a special statute having application to actions brought to determine adverse claims proceeded against by name or as unknown parties. In order to be entitled to take advantage, of this statute the defendant must make his application for reopening of a default judgment within one year after the rendition of such judgment but not otherwise. In the instant case the default judgment was entered on the 29th day of July 1950. The defendant did not make his application for reopening and vacating the judgment until February 21, 1953, a period of two and one half years after the rendition of the default judgment. Clearly under the statute the trial court was without power to reopen and vacate the judgment.

The judgment is affirmed.

MORRIS, C. J., and BURKE and GRIM-SON, JJ., concur.

JOHNSON, J., did not participate.


author: JOHNSON, Judge.

text:
    HOFFER et ux. v. CRAWFORD et al.
    No. 7448.
    Supreme Court of North Dakota.
    Aug. 20, 1954.

      Cox, Cox, Pearce & Engebretson, Bismarck, for appellants.
    Lanier, Lanier & Knox, Fargo, for respondents.
   JOHNSON, Judge.

On May 28, 1952, the plaintiffs commenced an action against the defendants to determine adverse claims and quiet title to 720 acres described as: “Section 34-138-69 and the SW^NW|4, Lot 4, Section 2-137-69.” The actual purpose of the action is to set aside and have declared void a mineral deed given by the plaintiffs to defendant D. W. Crawford to an undivided one-fourth interest in and to all of the oil, gas and other minerals in and under the above described land and that may be produced therefrom.

The transaction resulting in the mineral deed to D. W. Crawford took place at the farm of the plaintiffs on May 18, 1950. On the same day the plaintiffs executed a gas, oil and mineral lease to B. E. Winder of Fort Worth, Texas, and another mineral deed to D. W. Crawford covering one-half of the oil, gas and other minerals in and under and produced from the following described land: SE^NEj^,, Lot 1, Section 2-137-69. The oil, gas, and mineral lease and the mineral deed covering the eighty-acres are not involved in this action.

The defendants are the grantees of the minerals obtained by the defendant D. W. Crawford, or James H. White and W. C. Duncan, who purchased a part of the minerals granted to D. W. Crawford and in turn sold them to the other parties. The plaintiffs claim that the mineral deed for the 720 acres was obtained by fraud. D. W. Crawford answers and denies the allegation of fraud and states that he obtained the mineral deed for value; that thereafter he transferred a interest to James H. White and W. C. Duncan, a ⅛ interest to John R. Bowker and a ⅜6 interest to R. C. Moss. The other defendants answer that they are innocent bona fide purchasers for value.

The case was tried to the court and resulted in judgment for the plaintiffs. The defendants appealed and demanded a trial de novo.

There are two issues for determination. The first and primary issue, is whether or not the mineral deed covering the 720 acres was obtained from the plaintiffs by fraud and misrepresentation so as to render it void, and second, whether or not John R. Bowker, R. C. Moss, and James H. White and W. C. Duncan and their grantees are innocent purchasers for value, and take the minerals deeded to them free from fraud, if any was involved.

The plaintiffs purchased the 720 acres involved' in this action from the Federal Land Bank of St. Paul. It had reserved fifty per cent of all oil, gas and minerals in and under said land. The plaintiffs owned the other fifty per cent. The plaintiffs owned one hundred per cent of the minerals in and under the 80 acre tract which is not involved in this action.

D. W. Crawford of Gainesville, Texas, was in the business of obtaining oil, gas and mineral leases and buying minerals. He was assisted in his operations by his two sons, D. B. Crawford and P. E. Crawford. On May 18, 1950, Robert Mayer, a neighbor, introduced these two men to the plaintiffs. As a result of the meeting between these men and the plaintiffs, the oil, gas and mineral lease and the two mineral deeds were executed to D. W. Crawford. ,

The oil, gas and mineral lease and the two mineral deeds given by the plaintiffs to D. W. Crawford were filed for record in Stutsman County on the 23rd day of May, 1950.

After acquiring one-fourth of the minerals in the 720 acre tract from the plaintiffs, D. W. Crawford, on May 23, 1950, made, executed and delivered a mineral deed to John R. Bowker for an undivided ⅛ interest in and to all of the oil, gas and minerals in said tract. On June 1, 1950, D. W. Crawford made, executed and delivered a mineral deed to an undivided ⅜6 interest covering the same tract of land to R. C. Moss. On June 2, 1950, D. W. Crawford made, executed and delivered a mineral deed covering an undivided ⅛ interest in and under the same property to James H. White and W. C. Duncan. All these mineral deeds were filed for record in Stutsman County a few days after they were executed and delivered.

It thus appears that by June 2, 1950, D. W. Crawford had conveyed his entire one-fourth interest of the oil, gas and other minerals that he had obtained from the plaintiffs.

The evidence discloses that D. W. Crawford did not buy these minerals as an agent for any of the parties defendant. He was buying them for himself.

On July 11, 1950, James H. White and W. C. Duncan made and executed a mineral deed covering an undivided ¾08 interest in and to all the oil, gas and other minerals in and under the land covered by the original mineral deed from the plaintiffs to D. W. Crawford, to C. W. Cahoon; on August the 2nd, 1950, they executed a deed to ¾08 interest in the minerals covering the same property to E. M. Solow; on August 8, they executed another mineral deed to an undivided ½16 interest in the same property to J. F. Hyman; and on June 25, 1951, they executed a mineral deed to an undivided 1⅜1@ interest covering the same property to Eloise Munson.

By* June 25, 1951, White and Duncan had conveyed all the minerals that they had obtained from D. W. Crawford. These deeds were all filed and recorded in Stutsman County prior to the institution of this action.

It is admitted that the plaintiffs did not appear before a notary public. The mineral deed covering the 720 acre tract was notarized by John L. Graf, a notary public at Streeter, North Dakota. He is a banker and knew the signatures of the plaintiffs and attached his acknowledgment to the mineral deed. The certificate of acknowledgment is in proper form.

The home of the plaintiffs is located on the SE]4, Section 34 — 138-69. It has been their homestead since 1941. It is conceded by the appellants that the mineral deed describing the 720 acres obtained by D. W. Crawford is not effective as to the homestead property.' NDRC 1943, 47-1805; Dixon v. Kaufman, N.D., 58 N.W.2d 797. The mineral deed to the homestead was void. No title to the minerals in or under the homestead passed to D. W. Crawford or any of his grantees or the grantees of his grantees.

Assuming that fraud was involved in the procurement of the mineral deed by D. W. Crawford, the question for determination is whether or not the mineral deed covering the balance of the property vested title in the grantees of D. W. Crawford and the grantees of his grantees as innocent purchasers for value without notice. For a determination of that question it is necessary to examine the facts closely tp ascertain whether the original mineral deed to D. W. Crawford was executed under such circumstances as to make it void or merely voidable.

The main dispute on the facts centers around the claim of the plaintiffs that at the time of their talk with the Crawford brothers no mention was made of a mineral deed. There is also a conflict in the testimony as to the manner in which the lease and two mineral deeds were executed.

The facts disclose some discussion as to the mineral interests of the plaintiffs in the land as the Crawfords ascertained that they owned one-half of the minerals.in the 720 acre tract acquired from the Federal Land Bank and one hundred per cent of the minerals in the 80 acre tract acquired by them from another source. The lease covers 800 acres.

The plaintiffs assert that the Crawfords offered 2$‡ an acre for an oil, gas and mineral lease. The Crawfords contend that they offered 25^ per acre for an oil and gas lease and one-half of the minerals owned by the plaintiffs. The evidence discloses that Robert Mayer, who introduced the Crawfords to these plaintiffs, had entered into an oil, gas and mineral lease with D. W. Crawford, and had sold him one-half of his minerals. Mr. Graf, the notary, had also executed an oil, gas and mineral lease and sold minerals in a 960 acre tract at the same price. The evidence does not disclose that the plaintiffs knew of these transactions with Mayer or Graf. They are merely mentioned for the purpose of showing that other persons had entered into similar transactions as the plaintiffs.

Both the plaintiffs testified that D. B. Crawford and they were the only persons present at the time of the execution of the oil, gas and mineral lease and the two mineral deeds. They did not remember that they had executed three instruments. They contended that the instruments stuck together; that they signed the oil, gas and mineral lease which was on top at a table in their home; that after Jacob Hoffer had signed the instrument Mr. Crawford pushed up the top instrument so that they could see where they were to sign the other instrument underneath it. Mr. Hoffer signed first and his wife immediately afterwards. They claim that they thought the bottom instrument was a copy of the top one and state that they asked for a copy. They do not claim that the bottom instrument was represented to them as being the same as the top one. D. B. Crawford states that he does not remember that they asked for a copy of the instrument. D. B. Crawford testifies that he separated the three instruments, laid them on the table, showed them to the plaintiffs, and explained them.

Mrs. Hoffer was asked on cross examination the following question: “Q. When the paper was pushed up and you signed the one underneath, did it look to you exactly like the one on top? A. Well, I wouldn’t say it looked exactly like it.” The evidence discloses that neither of the plaintiffs attempted to look at the instrument underneath. Neither of the parties attempted to push up the top instrument much further than was necessary to sign the bottom one. The plaintiffs think there were only two instruments, but the evidence shows .that there were actually three. Neither of the plaintiffs picked up the instruments nor did they attempt to examine them.

Neither are the plaintiffs able to explain how the instruments stuck together. They did not examine them closely enough to determine whether they were stapled or clipped together. However, they insist that they stuck together. This is .denied by D. B. Crawford.

The plaintiffs had never meFthe Crawford brothers until May 18, 1950. They were dealing with complete strangers. After the oil, gas and mineral lease and the two mineral deeds had been signed by the plaintiffs they received a check drawn on D. W. Crawford for $110 as a consideration for the oil and gas lease and the two mineral deeds. The check is dated May 19, 1950, and is drawn in favor of Jacob F. Hoffer, on D. W. Crawford, signed by Philip Crawford and payable at the First State Bank of Gainesville, Texas. In the upper left hand corner of the check appears, “leases and ½ Mineral North of Streeter, N. D.” It is contended by the plaintiffs that this notation was not on the check when it was delivered. The Crawfords drew the check and claim that this notation was on it when it was delivered to Jacob Hoffer. The check is typewritten except for the signature and ordinary examination thereof would indicate that the entire check including the notation was written on the same typewriter.- The check was cashed May 27, 1950, by Jacob Hoffer.

It will be noted that the oil and gas lease is dated May 18, 1950, and the two mineral deeds and the check are dated May 19, 1950. There is no question that all these documents were executed on the same date. On cross examination Mr. D. B. Crawford was asked to explain this. He was asked: “Q. Now, will you tell me how you account for the fact that you were only out there once and the lease is dated under their signature the 18th, and the deed is dated on the 19th, a date which you never saw them? A. The lease was supposed to be dated ahead of the mineral deed.” He was further asked: “Q. Why is the lease supposed to be dated a date earlier than the deed? A. Because the mineral is subject to the lease.”

From this testimony it would appear that the Crawfords dated these instruments as they did for the reason that they were under the impression that the oil lease would have to be dated ahead of the mineral deed in order that the mineral deed be subject to the lease.

Under all the facts and circumstances involved in the transaction resulting in the oil, gas and mineral lease and the two mineral deeds signed by the plaintiffs on May 18, 1950, there is some question whether any fraud was involved.

“In any event, fraud is not to be lightly inferred or to be inferred from slight presumptions.
“It follows from the rule that fraud will not be presumed that the burden of proving fraud rests on the party who relies on it either for the purpose of attack or defense.
“Tlie rules which impose the burden of proof on one alleging fraud and which deny a presumption of fraud rest on the fact that fraud is regarded as criminal in its essence, and involves moral turpitude at least, while, on the other hand, the presumption is that all men are honest, that individuals deal fairly and honestly, that private transactions are fair and regular, and that participants act in honesty and good faith. The presumption is against the existence of fraud and in favor of innocence, the presumption against fraud approximating in strength the presumption of innocence of crime. Where a transaction is capable of two constructions, one of which is honest and the other is fraudulent, or where the facts are equally consistent with honesty and with fraud, fraud will not be presumed and the transaction should be held honest.” 37 C.J.S., Fraud, § 94, pages 397-400.
“The law presumes that all men are fair 'and honest, that their dealings are in good faith, and without intention to disturb, cheat, hinder, delay, or defraud others; where a transaction called in question is equally capable of two constructions — one that is fair and honest and one that is dishonest — then the law is that the fair and honest construction must prevail, and the transaction called in question must be presumed to be fair and honest.” Krause v. Krause, 30 N.D. 54, 63, 151 N.W. 991, 994.

See, also, Union Bank of Dunn Center v. Hackett-Gates-Hurty Co., 62 N.D. 549, 243 N.W. 926

There is a presumption that private transactions have been fair and regular. NDRC 1943, 31-1103, subd. 19.

However, the trial court saw and heard the witnesses and came to the conclusion that fraud was involved. Its finding is entitled to appreciable weight. It does not follow, however, that such fraud vitiates and voids the mineral deed to D. W. Crawford so as to prevent innocent purchasers for value from acquiring title to the minerals granted to them by him or granted to them by his grantees free from such fraud.

The plaintiffs are intelligent people; they have had considerable experience in business affairs; they operate a fairly large farm; they read and write english; they had an opportunity to examine and thoroughly check the instruments before signing them. They thought they had signed only two documents whereas they actually signed three. If their belief that the second instrument was their copy of the top one was justified, and that is what they claim they thought, the signature of a third instrument should have been sufficient to at least put them on inquiry as to its nature. They knew the difference between an oil, gas and mineral lease and a mineral deed. Mrs. Hoffer knew that they did not look alike. Neither of the plaintiffs picked up the instruments to examine them nor did they look at the instruments underneath the oil, gas and mineral lease. They did not attempt to ascertain how the instruments stuck together. They did examine a blank oil, gas and mineral lease prior to the execution of the lease and the mineral deed. They merely assumed that the instruments were the same, if their version of the facts is to be considered in its most favorable light. The testimony of D. B. Crawford is that he laid the documents on the table, separated them and told them what they were.

Considering all the facts and circumstances and all the evidence; that these parties were dealing with complete strangers; that there was no confidential relationship between them and the Crawfords; and that there is a serious question whether the plaintiffs, by preponderance of the evidence, have presented facts which overcome the presumption of honest and fair dealing, we have come to the conclusion that the mineral deed executed by the plaintiffs to D. W. Crawford covering an undivided one-fourth interest in and to all the oil, gas and other minerals in and under the 720 acres purchased by them from the Federal Land Bank, was merely voidable and not void.

“A deed that is absolutely void passes no title. It gives no constructive notice and a claim of bona fides may not be based upon a void instrument, even when placed of record in the manner prescribed by statute. 45 Am. Jur., Records and Recording Laws, Section 106; 26 C.J.S., Deeds, § 68.” Dixon v. Kaufman, N.D., 58 N.W.2d 797, 805.

A deed obtained by fraud is sometimes void, but more often is merely voidable, depending on the facts on which the claim of fraud is based. 55 Am.Jur., Vendor and Purchaser, Sec. 666 and 667; 16 Am.Jur., Sec. 35; 45 Am.Jur., Sec. 106; 26 C.J.S., Deeds, § 68b.

“Uniformity does not prevail among the courts as to the circumstances of fraud which will render a deed void and inoperative as against the claims of an innocent purchaser. It would seem, however, that in such cases the innocent purchaser should be protected unless the fraud is clear, unequivocal> and its force undiminished by lack of care on the part of a mentally compe~ tent, defrauded grantor." Dixon v. Kaufman, 58 N.W.2d at page 805. (Emphasis supplied.)

The facts here indicate that the plaintiffs as literate people of normal mentality and maturity, dealing with a complete stranger did not exercise that care and caution which would be normal under all of the circumstances. If we accept Jheir version of what happened at the time the mineral deed was executed, a fraud was perpetrated upon them. The act, however, of the plaintiffs in signing the mineral deed now involves innocent purchasers who have paid valuable consideration for mineral deeds based on the original mineral deed executed by the plaintiffs.

“When one of two innocent persons must suffer by the act of a third, he by whose negligence it happened must be the sufferer.” NDRC 1943, 31-1105, subd. 34.
“If a loss results to parties ignorant and innocent of the fraud, it must fall on those whose lack of care and attention made the fraud possible rather than upon those who were wholly unconnected with the fraudulent transaction. If the plaintiffs, or either of them, had read or even looked at the mineral deed before they signed it, they would have known what they were signing. The words ‘mineral deed’ in black capital letters three-eighths of an inch high appear on the face of the instrument and also on the back. Not only did they fail to read before they signed, but they did not read the mineral deed until some two weeks later. Their misplaced confidence in Larson resulted in a loss for which they must bear responsibility as against bona fide purchasers with respect to their nonhomestead lands. Pure Oil Co. v. Swindall, Tex.Com.App., 58 S.W.2d 7; Busby v. Smith, Tex.Civ. App., 53 S.W.2d 138; McArthur v. Johnson, 61 N.C. 317, 93 Am.Dec. 593; Lanier v. John L. Roper Lumber Co., 177 N.C. 200, 98 S.E. 593.” Dixon v. Kaufman, 58 N.W.2d at page 805.

If the plaintiffs had taken the time to look at the instruments underneath the oil, gas and mineral lease they would readily have discovered that they were not only signing an oil, gas and mineral lease but also two mineral deeds. The mineral deeds are headed in large black letters "Mineral Deed" The mineral deed form differs from the form of an oil, gas-and mineral lease. A person of average intelligence, knowledge and experience could detect the difference if such person examined the instruments. It is presumed that a person takes ordinary care of his own concern. NDRC 1943, 31-1103, subd. 4.

These plaintiffs, by assuming that they were signing a mere copy of the oil, gas and mineral lease and by failing to examine the second and third instruments which they actually signed, have put it in the power of the original mineral deed grantee to give other mineral deeds covering the same property to innocent purchasers who have parted with valuable consideration for the same.

“Where the rights of an innocent purchaser may be affected by holding the deed inoperative to pass title, only unusual circumstances, such as misreading the instrument to a blind or illiterate person, fraud on a mentally defective person, the surreptitious substitution of one instrument for avvother, or representation of its contents by a person in whom the grantor is entitled to place confidence, will support a plea of fraud as to the character of the instrument.” 16 Am.Jur., Deeds, Sec. 35, p. 458. (Emphasis supplied.)

None of these elements are present in this case. The purchasers of mineral interests from D. W. Crawford could not have ascertained that the original deed to him was procured by fraud. The deed and the certificate of acknowledgment were regular and a stranger to the original transaction had no way of knowing that the grantors did not appear before a notary. Examination of the original instrument or the record would not have disclosed any irregularity.

rA certificate of acknowledgment by a notary on a deed, if regular on its face, is presumed to state the truth but it may be impeached by clear and convincing evidence. Yusko v. Studt, 37 N.D. 221, 163 N.W. 1066; Hazlett v. Mathieu, 57 N.D. 57, 220 N.W. 647; Cox v. McLean, 66 N.D. 696, 268 N.W. 686; Nichols v. Schutte, 75 N.D. 207, 26 N.W.2d 515.

There was nothing to put the purchasers from D. W. Crawford on notice of any irregularity in either the acknowledgment or fraud in the inception of his deed. Therefore, under the well established principle set forth, the plaintiffs must be the ones to suffer. Their own lack of diligence and misplaced confidence in D. W. Crawford’s agents has resulted in their loss and they must bear the burden thereof.

It is contended that the mineral deed constitutes a forgery and is, therefore, void for any purpose. As authority for that contention reference is made to the note in 14 A.L.R. at p. 316 following the case of Austin v. State of Tennessee, 143 Tenn. 300, 228 S.W. 60, and also the note in 56 A.L.R. 582, dealing with the procurement of a signature by fraud as a forgery. Particular reference is made to the case of Horvath v. National Mortgage Company, 238 Mich. 354, 213 N.W. 202, 56 A.L.R. 578. The annotation in 14 A.L.R. 316 states:

“While the courts are not in entire accord on the question, in a majority of the cases it is held that fraudulently procuring a genuine signature to an instrument does not constitute forgery. Wells v. State, 89 Ga. 788, 15 S.E. 679; People v. Pfeiffer, 243 Ill. 200, 90 N.E. 680, 26 L.R.A.,N.S., 138, 17 Ann.Cas. 703; State v. Corfield, 46 Kan. 207, 26 P. 498; Johnson v. State, 87 Miss. 502, 39 So. 692; State v. Mitten, 36 Mont. 376, 92 P. 969; State v. Flanders, 38 N.H. 324; People v. Underhill, 142 N.Y. 38, 36 N.E. 1049, reversing 75 Hun. 329, 26 N.Y.S. 1030; Com. v. Sankey, 22 Pa. 390, 60 Am.Dec. 91; Hill v. State, 1 Yerg. 76 [9 Tenn. 76], 24 Am.Dec. 441.” (Emphasis supplied.)

It is also stated:

“In some jurisdictions the view is-taken that the procuring of a genuine-signature to an instrument by fraudulent representations constitutes forgery. State v. Shurtliff, 18 Me. 368; Com. v. Foster, 114 Mass. 311, 19 Am. Rep. 353; Gregory v. State, 26 Ohio St. 510, 20 Am.Rep. 774, 2 Am.Crim, Rep. 146. See also State v. Farrell, 82 Iowa 553, 48 N.W. 940.”

This, however, is the minority rule.

In the case of Hauck v. Crawford, S.D., 52 N.W.2d 92, at page 94, the court comments on the foregoing notes dealing with the procurement of a signature by fraud as forgery as follows:

“We are not inclined to accept the trial court’s holding that the manner in which plaintiff’s signature was obtained constituted a forgery. As disclosed by the notes in 14 A.L.R. 316 and 56 A.L.R. 582, such holding is a minority view, and seems to us unsound. We believe the rule we have announced in Federal Land Bank v. Houck, supra [68 S.D. 449, 4 N.W.2d 213], and in this opinion will better sustain the ends of justice. Our holding, we believe, recognizes actualities. The signature was the real signature of the plaintiff. True, plaintiff was induced to sign by a false representation, but to hold a signature thus obtained a forgery seems artificial and out of harmony with the actual facts.” Hauck v. Crawford, S.D., 62 N.W.2d 92, 94.

Our statute defines good faith: “Good faith shall consist in an honest intention to abstain from taking any unconscien-tious advantage of another even though (through) the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious.” NDRC 1943, 1-0121.

Insofar as the grantees of D. W. Crawford and their grantees are concerned there is a total absence of any evidence on which they could base any information or belief of facts which would render the transaction as to them unconscientious. They had a right to rely on the presumption of fair and honest dealing.

The mineral deeds given by D. W. Crawford and the mineral deeds made, executed and delivered by his grantees to other grantees are valid except as to the homestead property. These grantees obtained title to the minerals as bona fide purchasers for value without notice.

The judgment of the trial court is affirmed as to the homestead property and the mineral deed of the plaintiffs covering that property is void. As to the remaining real property of the plaintiffs involved in this action the mineral deeds in the hands of innocent purchasers for value are valid, and as to that property the judgment of the trial court is reversed.

MORRIS, C. J., and GRIMSON, SATHRE and BURKE, JJ., concur.


text:
    LEE et al. v. THORENSON et al.
    No. 7320.
    Supreme Court of North Dakota.
    Aug. 25, 1954.

      Asmundur Benson, Bottineau, for appellants.
    W. H. Adams, Bottineau, McGee & McGee, Minot, for respondents.
   SATHRE, Judge.

This action arose out of a controversy between residents of Brander, Kane and Tacoma Townships, Bottineau County, and the Board of Drain Commissioners of Bot-tineau County relative to the construction of a proposed drain designated as Kane-Tacoma Drain No. 2. The proceedings were had under the provisions of Chapter 61-21, NDRC 1943, prescribing the procedure for establishing drainage projects.

On November 15, 1950, a petition was filed with the Board of Drain Commissioners of Bottineau County for construction of the proposed Kane-Tacoma Drain No. 2, which petition was signed by the requisite number of freeholders and was in form as required by Section 61-2110, NDRC 1943. It described the point of origin, general course, terminus and the laterals of the proposed drain.

At the time of the filing of the petition the members of the Board of Drain Commissioners were Fred A. Gessner, Bert Henry and Rex Stair. Section 61-21031 1953 Supp. NDRC 1943 provides that no member of the drain board, appointed, qualified and acting under the provisions of Chapter 61-21, NDRC 1943 shall act on any matter wherein he is interested. It was found that Rex Stair and Bert Henry had land within the area of the proposed drain, and they resigned from the Board of Drain Commissioners. Elmer Issendorf and George Thorensen were appointed to succeed them and thereafter they qualified as members of the drain board. After the filing of the petition for construction of the proposed drain a number of meetings were called by the drain board which were attended by many of the landowners in the drainage area, and a majority of them were in favor of the construction of the drain. The drain board contacted the United States Soil Conservation office at Westhope, North Dakota, and consulted with one Mr. Brown, the engineer in charge of said office. Fie in turn consulted with C. A. Haskin, U. S. Soil Conservation engineer at Fargo, North Dakota, head of the soil conservation in the state. The soil engineers made surveys of the area of the proposed drain, in 1949, 1950 and 1951. The surveys were revised from time to time, and a plat of the final survey was made and accepted by the drain board, and on August 13, 1951 a meeting was called by the board to be held on August 30th, 1951 in the gymnasium of the school house in Newburg in said Bot-tineau County. Notice of this meeting was given to all affected landowners and published as required by law. Prior to the meeting of the drain board on August 30, several landowners in the area of the proposed drain, filed written objections to the construction of the drain and petitioned for discontinuance of the project.

The proceedings at this meeting were conducted in accordance with the provisions of Section 61-21141, 1953 Supp. NDRC 1943, and the voting rights of the affected landowners were determined by the formula provided by Section 61-21151 1953 Supp. NDRC 1943, which sections are as follows: 61-21141,

“When the hearing provided for in section 61-2114 of the North Dakota Revised Code of 1943 is held, the board shall first prepare a roster or roll of affected landowners and shall limit voting rights to such affected landowners. A record shall be made by the board of affected landowners present in person or by agent and such records shall be preserved in the minutes of the meeting. Affected landowners shall then be informed of the probable total cost of the project and their individual share of such costs. A reasonable time shall be afforded landowners to discuss and hear the evidence and opinion for and against the project and the board shall fix a time within which objection to the establishment of the drain as provided by section 61-2115 of the North Dakota Revised Code of 1943 shall be filed with the board. Such objections shall be in writing, but a telegram shall be deemed writing, and any form of written objection that sufficiently indicates the intention of the writer shall be sufficient. Once the deadline for signing objections has been reached, no further objections can be filed and no person objecting shall withdraw his or her name from the list of those objecting after the deadline for filing objections has been reached. Any withdrawals of objections before that time shall be in writing only, under the same rules as govern the making of objections. When the objections of affected landowners have all been filed and the deadline for filing objections has been reached, the board shall immediately proceed to determine whether or not a majority voice or vote as determined by section 6 herein (61-21151) is opposed to the construction of the drain. Until such determination is made, the board is without jurisdiction to take any further steps in the matter except to determine whether a majority voice or vote is objecting or not to adopt the required resolution for discontinuance, if a majority objects. (Approved March 19, 1949, emergency.)”
“61-21151. In order that there may be a reasonably fair relation between ■the amount of liability for assessments and the power of objecting to the establishment of a proposed drain, the voice or vote of affected landowners on the question of establishing the drain shall be arrived at in the following manner:
“1. Every landowner shall have at least one vote or voice.
“2. In addition thereto each landowner shall have one additional voice or vote for each $100.00 or major fraction thereof of assessment that his land is subject to as established by the board under the provisions of section 4 of this Act (61-21131). (Approved March 15, 1949, emergency.)”

At the August 30th meeting a roll call vote was taken of all the landowners present on the question whether the proposed drain should be constructed. By applying the formula provided by said section 61-21151 it was found that 304 votes were cast, of which 224 were cast in favor of the construction of the drain and 80 votes were cast against it, and it was determined that a majority of the affected landowners were in favor of construction of the drain.

Thereafter and on September 5th, 1951, the drain board issued its order establishing said Kane-Tacoma Drain No. 2. The order stated that:

“A petition for the location and establishment of a drain, having been on the 15th day of November A.D.1950 filed with the Board of Drain County Commissioners, in and for Bottineau County, State of North Dakota; and said Commissioners on the 5th day of Sep A.D.1951, having personally viewed and examined the route of such proposed drain, and the land intended to be drained thereby; and it appearing to said Board that such drain is necessary and for the public good, and that it will be of benefit to the public health, convenience and welfare; and that the petition as filed with the Board is sufficient under the law; and that there was and is sufficient cause for the making of such petition; and also that the construction of such drain will not cost more than the amount of benefit to be derived therefrom; and said Commissioners having caused a survey and measurement of the line of said proposed drain to be made by a competent surveyor, establishing the commencement and terminus of said drain, determining the route, width, length and depth thereof; and said surveyor having prepared profiles, plans and specifications of the proposed drain, and an estimate of the cost thereof, and a plat of the land to be drained, showing the regular subdivisions thereof, all of which are now on file in the office of the Auditor of said County, and on file in the office of this Board, subject to inspection;”

Then follows a detailed description of the point of beginning of the drain, its general course, its laterals and its terminus. Notice of said order and a copy thereof were sent to each landowner affected by said order which notice stated that such landowner had the right to appeal to the district court of Bottineau County, and that such right of appeal would expire in thirty days, and that the date of expiration of such right of appeal was October 29, 1951. The objectors to the construction of said drain, the appellants herein, appealed to the district court of Bottineau County from the order of the drain board, and the appeal was heard before the Hon. Harold B. Nelson, District Judge without a jury.

The court affirmed the proceedings had by the Board of Drain Commissioners and found as facts that the Board of Drain Commissioners was a legal board and qualified to act on all matters presented to it pertaining to drainage and that all proceedings had by the board in establishing Tacoma-Kane Drain No. 2, were regular; that there was necessity for establishing said drain and that the benefits thereof were in excess of the cost thereof. Judgment was entered accordingly and the appellants appealed and demanded a trial de novo in this court.

Appellants contend that the members of the board of drain commissioners were disqualified to function as commissioners for the reason that they failed to subscribe and file their oaths of office in the office of the county auditor within the time required by section 61-2105, NDRC 1943. This section provides:

“Any person appointed as a member of the board, within ten days after his appointment, shall take, subscribe, and file in the office of the county auditor on oath faithfully to perform the duties of a drain commissioner Under the law, and at the same time'he shall make, execute, and file in the auditor’s office a bond to the county with sureties to be approved by the auditor in such sum as shall be ordered by the board of county commissioners, conditioned for the faithful discharge of his duties as drain commissioner.”

Appellants’ exhibits 1, la, 2, 2a, 3, 3a, 8, and 8a show that Fred A. Gessner, president of the board was appointed September 8, 1949, signed the oath of office September 15, 1949, and filed it with the county auditor September 26, 1949. George Thorensen and Elmer Issendorf were appointed February 6th, 1951, took the oaths of office March 9, 1951, and filed them'with the county auditor April 9, 1951.

It is clearly established by the record that the board of drain commissioners took no action in the proceedings for establishing the drain involved here until after each of the members of the board had qualified by taking the required, oath and filing it with the county auditor together with the certificate of the state commissioner of insurance that such member was bonded as required by law.

The rule as to' the effect of failure to qualify within the time prescribed by statute is stated as follows in 67 C.J.S., Officers, '§ 41, page 194.

“A failure to qualify for an office may create a vacancy in the office, but it has been held that, in the absence of a statute so providing, a failure to qualify, although it may - afford. cause for forfeiture of the office, does not create a vacancy; and, even though it is irregular and improper to induct one into office without the required bond having been given, such a one is legally in office and so remains until removed by judicial process, and if the oath is taken or the bond filed at any time before proceedings are taken to declare a vacancy it is sufficient.”

No action was instituted before the county commissioners to declare vacancies on the Board of Drain Commissioners, nor was any other action brought for such purpose. The Board of Drain Commissioners was a legally constituted board when the members thereof had subscribed and filed their oaths of office in the form provided by law. Under the facts and circumstances in the instant case, the failure of the members of the board to subscribe and file their oaths of office within ten days as provided by Section 61-2105, supra was not such an omission as to affect their qualifications to function as a Board of Drain Commissioners. The essential requirement is that the members of the board must subscribe and file their oaths of office before entering upon the discharge of their official,duties.

Appellants contend further that the cost of the drain exceeds the benefits that would be derived from its construction.

Several of appellants’ witnesses’ testified that the drain if constructed would be an expense to them and of no benefit. Their testimony was in the main conclusions and was not supported by any specific facts and therefore were of little probative force.

Mr. C. A. Haskin, drainage engineer for the U. S. Soil Conservation of North Da-' kota, a witness for the respondents, testified as follows:

He was at the head of the Soil Conservation at Fargo, North, Dakota as drainage engineer. He inspected the area of the proposed drain in. June 1949, in August 1949,-in the spring of 1950, and in August 1951. * He checked the final drawings and map of, the proposed drain in February or March 1951. He stated that when he first examined the proposed drainage project at least 500 acres were definitely under water; other lands that were seriously damaged by being too wet to be worked would probably be about 1,700 to 2,000 acres, and in his opinion as an engineer this number of acres could be reclaimed by the construction of the proposed drain. He stated there would be 17.8 sections of land or approximately 11,000 acres, within the drainage area of the proposed drain that would be benefited by the project. With reference to the method used in preparing plans for drainage projects he testified as follows:

“Q. Mr. Haskin, in making the plans and specifications or plans for this ditch, how did you arrive at the size of the ditch? A. The size of the ditch was arrived at from standard engineering work as to runoff. It is a standard practice of most engineers. These runoff figures are for certain areas- depending on steepness of the land. We call them the runoff curves. They give the amount of runoff per square mile for this sized area and for different slopes.
“Q. Have you done considerable drainage work in North Dakota? A. Yes, I couldn’t say how many jobs, but it runs up in the hundreds.
“Q. Mr. Haskin, this Exhibit 11, this long exhibit, does the drawing Exhibit 11, the plan of this ditch, — - you may state whether or not that plan represents your best judgment for the construction or for the drainage of this area? A. Yes, it does.
“Q. And you have been engineer on construction of hundreds of ditches in North Dakota? A. Yes. "
“ * * * * * *
“Q. In ■ your plans here you have taken advantage of the lay of the land there, according to your plan, to get the most water out of there that it is possible'To get? A. Yes, we have routed the ditch so that it, you might. say, catches the largest amount of water along its course and also taking into consideration we have routed it so that it is the cheapest ditch that could be built along that area.
“Q. This ditch as estimated here would cost approximately fifty thousand dollars. In your opinion as a drainage engineer, would the benefits exceed the cost of the ditch? A. Yes, it is my belief that the benefits would exceed the cost of the ditch.
“Q. That is your judgment as a drainage engineer? A. Yes.
“Q. Now this work you did here you did on request from the drainage board as part of your duties as a Federal employee? A. Yes. I might answer that this way: we have a working agreement with the Mouse River Soil Conservation District whereby we furnish engineering service to them in their soil, water and conservation work, providing they have the men to do the work.
“Q. The Government provides that? A. Yes. That is done without cost to the drainage board”.

With reference to the cost of the proposed drain he, Haskin, stated that it would be $49,947.18 exclusive of the cost of easements, and that approximately one third thereof or $17,153 would be paid jointly by the State Water Conservation and Bot-tineau County.

Mr. Haskin testified further that in his judgment as a drainage engineer the benefits from the construction of the proposed drain would exceed the cost of its construction.

Arlie Oman, a licensed civil engineer testifying for the respondents stated that he was employed by the Soil Conservation Service, and that he and one Richard Mourn, another civil engineer in the employ of the Soil Conservation Service, made the survey for the Kane-Tacoma Drain No. 2 under the supervision of the Chief Engineer, C. A. Haskin. He described in detail the laying out of the course of the drain, the depth at the various surface elevations, and what gradient the drain should have when designed. He stated that when he was making the survey there were four hundred or five hundred acres under water, and that from 1,600 to 2,000 acres of land could be reclaimed by the construction of the proposed drain, and that there were some seventeen sections of land included in the drainage area. The approximate length of the drain, including its laterals, would be eleven miles. The outlet of the drain was a coulee emptying into the Mouse River. He stated further that in his judgment the construction of the drain in accordance with the survey made represented the most practical method of reclaiming the land in the drainage area, and that there was a necessity for construction of the proposed drain in order to reclaim the lands in the area. The testimony of Richard Mourn a civil engineer with the Soil Conservation Service, testifying for the respondents, agreed in detail with the testimony of Arlie Oman whom he assisted in making the survey for the proposed drain.

The minute book of the Board of Drain Commissioners was introduced in evidence as appellants’ exhibit 6. It contains a record of all of the proceedings had in the matter of establishing Kane-Tacoma Drain No. 2, including the petition for establishing the drain, the action taken by the board for surveys, notice of hearing on said petition, minutes of the hearing thereon, order establishing the drain and notice of the entry of such order.

Exhibit 15 is a recapitulation of the estimated cost of the drain and assessments made by the drain board against each parcel of land benefited by the drain. Attached to said recapitulation is a schedule describing each parcel of land, the amount of assessment and listing the name of the owner.

Appellants argue that the landowners who presented petitions to the drain board at the August 30th meeting obj ecting to the construction of the drain constituted a majority of the landowners affected and that under Section 61-2115, NDRC 1943 it was the duty of the drain board to discontinue the proceedings for construction of the drain. Section 61-2115 is as follows:

“If a majority of the landowners whose land is subject to assessment for the construction of the proposed drain petition the board to have further proceedings discontinued, the board, by resolution, shall order further proceedings discontinued.”

The petitions of the objectors to the construction of the drain are appellants’ exhibits 4 and 5. Exhibit 4 contains 12 names and recites that the petitioners are the owners of two quarter sections of land in the area of the proposed drain and states that the drain will affect their lands and will do more harm than good. Exhibit 5 contains 15 names and recites that the petitioners are landowners affected by the proposed drain and that they are opposed to it, but the petition does not show the acreage of land of which the petitioners are the owners.

Section 61-2115 quoted by appellants must be construed together with Section 61-21151, Supp. NDRC 1943 quoted elsewhere in this opinion. Said section prescribes the formula by which the drain board shall determine the voting rights and number of votes to which each landowner is entitled. Exhibits 4 and 5, the petitions of the objectors to the drain, were considered by the drain board at the meeting on August 30, 1951. In tabulating the number of votes to which each of the landowners was entitled under said formula it was found that 224 votes were cast in favor of construction of the proposed drain and 80 votes were cast against it, and it was determined by the drain board that a majority of the affected landowners were in favor of construction of the drain. The appellants presented no competent evidence that the drain board erroneously determined the total number of votes cast or the number of votes to which each affected landowner was entitled. The district court found as a fact that the petitions for discontinuance of the proceedings for construction of the said drain were insufficient and contained the names of less than a majority of the landowners affected by the drainage project.

After a careful consideration of the entire record we are agreed that the district court correctly affirmed the proceedings had by the Board of Drain Commissioners.

The judgment is affirmed.

MORRIS, C. J., and BURKE and CRIMSON, JJ., concur.

JOHNSON, J., did not participate.


author: MORRIS, Chief Justice.

text:
    KUNTZ v. PARTRIDGE et al.
    No. 7434.
    Supreme Court of North Dakota.
    Aug. 20, 1954.
    Rehearing Denied Sept. 22, 1954.

      J. K. Murray, Bismarck, for plaintiff and appellant.
    Cox, Cox, Pearce & Engebretson, Bismarck, for defendants and respondents.
   MORRIS, Chief Justice.

This is an appeal by the plaintiff and appellant from an order denying a motion for a new trial. The complaint upon which the action was tried seeks to, recover $6,800 actual damages and $5,000 punitive damages upon a hybrid cause of action partaking of both trespass and conversion. The property involved consists of a four room dwelling house situated on Lot 5, Block 2 of the East Side Addition to the city of Coleharbor and certain personal property contained therein.

It is specifically alleged:

“That on or about the 10th day of October, 195! the defendants and the defendant George Chilton at the instigation of the other defendants above named did, while the plaintiff and her husband were absent from their home and with the intent to cheat and defraud the plaintiff and her husband but of her said hdme, maliciously raise said dwelling house from its foundation on said Lot 5 and did wrongfully and unlawfully steal, take and carry away said dwelling house with its con-' tents, and did move said dwelling house onto another lot, thereby depriving the plaintiff of the possession of same and depriving her and her husband and family of a home; .that at said time plaintiff’s furniture, cooking utensils, beds, bedding, clothing, and other personal property of the plaintiff, was then and there situated in said home; that same was of the reasonable market value of $600.00; that there was also situated, in said dwelling house, property of the plaintiff’s husband, Frank; Kuntz, of the reasonable market value of at least $200.00; that the said Frank Kuntz has assigned, sold and delivered his said personal property to the plaintiff and his cause of action against the defendants by reason of the taking of his personal property wrongfully and unlawfully, and that the plaintiff is now the owner of the said personal property of the said Frank Kuntz and his said cause of action.”

Defendants deny generally the allegations of the complaint and further allege:

“that the dwelling referred to in plaintiff’s complaint was duly and legally sold as personal property by the Sheriff of McLean County, North Dakota, at a judicial sale on the 10th day of August, 1951, pursuant to a writ of special execution issued out of the District Court of McLean County, North Dakota, on the 26th day of July, 1951, under the authority of a judgment entered and docketed the 25th day of July, 1951, in an action in the District Court of McLean County, North Dakota, in which George Bellamy Partridge and Thomas M. Partridge, doing business as Dakota Lumber Company, Underwood, North Dakota, were plaintiffs, and Frank Kuntz and C. S. Murphy were defendants.”

The defendants also alleged that the plaintiff had personal knowledge of the judicial sale and took no action in opposition thereto and is estopped from attacking its validity, and that any title of the plaintiff was acquired subsequent to the sale and removal of the building and with knowledge thereof and is therefore subject to the sale.

The jury returned a verdict in favor of the plaintiff for $500. The court submitted to the jury two special interrogatories, which they answered as follows:

“Question: Members of the jury, in the event you find for the plaintiff, how much damages do you find for the plaintiff for the severance of the house from the land and the removal thereof?
“Answer: $ none”
“Question: Members of the jury, in the event you find for the plaintiff for the wrongful conversion of her personal property belongings and find for her, the plaintiff, on the conversion of the property of Frank Kuntz, then how much damages do you find for the plaintiff for the wrongful conversion of her personal property belongings and the personal property belongings of Frank Kuntz?
“Answer: $50D.0O”

No judgment was entered on the verdict. The plaintiff moved for a new trial and specified seventeen grounds therefor, together with seven specifications of the insufficiency of the evidence.

On November 16, 1953, the trial court entered its order denying plaintiff’s motion for a new trial, from which the plaintiff appeals to this court. The denial of this motion is specified as error.

The plaintiff, Alma Kuntz, and her husband, Frank Kuntz, acquired title to Lot 5, Block 2, by virtue of a warranty deed from C. S. Murphy and his wife, dated June 20, 1951, and recorded in the office of the register of deeds of McLean County on July 5, 1951. On September 12, 1951, Frank Kuntz conveyed his interest in Lot 5 to his wife Alma Kuntz by quitclaim deed, which was recorded in the office of the register of deeds September 26, 1951.

In September 1951 the defendant Thomas M. Partridge sold the house involved in this lawsuit, which was then located on Lot 5, Block 2, to the defendant George Chilton. He attempted to transfer title by giving Chilton a bill of sale. Chilton moved the house to the adjoining Lot 4 and a few days later again moved the house to another location about a block distant. At the time the house was moved the plaintiff and her husband were absent from Coleharbor. The house contained the personal property that is included in this action. The plaintiff contends that this removal was unlawful and constituted a trespass upon Lot 5 and a conversion of her personal property and that of her husband. Before this action was instituted Frank Kuntz assigned to his wife by an instrument in writing his cause of action for the conversion of his property.

The defense centers around a mechanic’s lien, the foreclosure thereof, the entry of judgment by default, and a sale by the sheriff of McLean County to George Bellamy Partridge and Thomas M. Partridge, doing business as Dakota Lumber Company, pursuant to a special execution of “That certain residence situated in the County of McLean, North Dakota, located in Lot four (4), Block two (2), East Side Addition, Coleharbor, North Dakota.”

Before discussing the details in this procedure we consider pertinent statutes, all of which are found in Chapter 35-12, NDRC 1943 on mechanics’ liens. Section 35-1203, NDRC 1943 provides, in part, that one who furnishes materials for the improvement or erection of a building or other structure under contract with the owner of the land or with the consent of the owner, upon complying with the provisions of this chapter, shall be entitled to a lien upon the building and upon the land on which the improvement is situated. Section 35-1201 provides that an owner means a person for whose immediate use and benefit the building or improvement is made having, capacity to contract.

Section 35-1204, NDRC 1943 provides the requirements for procuring a mechanic’s lien, among which are that the person entitled to the lien shall file with the clerk of the district court a notice in writing setting forth:

“a. The name of the person in possession of the land;
“b. The description of the property to be charged with the lien;
“c. The date of the contract; and
“d. That a mechanic’s lien against the building, improvement, or premises will be perfected according to law unless the account shall have been paid.”

Section 35-1210 requires the lien claimant to

“file with the clerk of the district court of the county in which the property to be charged with the lien is situated, within ninety days after all the things aforesaid shall have been furnished or the labor done, a true account of the demand due him after allowing all credits and containing a correct description of the property to be charged with a lien, which account shall be verified by affidavit.”

The defendants contend that the Dakota Lumber Company had a valid lien on the house located on Lot 5, but not on the lot itself, under the provisions of Section 35-Í218, NDRC 1943, which reads as follows:

“In addition to the lien provided by this chapter, when material is furnished or labor performed in the erection or construction of an original, complete, and independent building, structure, or improvement, whether the same is placed upon a foundation or not, the lien shall attach to the building or improvement in preference to any prior title, claim, lien, encumbrance, or mortgage upon the land upon which the building, erection, or improvement is erected. Upon the foreclosure of the lien, the building or improvement may ■ be sold separately from the land and may be removed from the land within thirty days after the sale. ■ The sale and removal of a structure or improvement separately from the land shall operate as a full satisfaction and discharge of the lien upon the real estate. At the time the material is furnished for such improvement, the seller shall notify the purchaser by delivering to him a written notice stating that the seller claims the right to foreclose the lien under the laws of the state, and in the event that there is a default in payment for 'the improvement, to remove the building from the real estate upon which it is placed regardless of whether or not said building is placed-upon a foundation.” '

Over plaintiff’s strenuous objections, the overruling of which the plaintiff specifies as error on this appeal, the defendants were permitted to introduce in evidence the record of the mechanic’s lien and the procedure had thereunder, culminating in the sheriff’s sale. These proceedings the plaintiff contends are wholly immaterial to a trespass oh Lot 5, Block 2.

April 19, 1951, the Dakota Lumber Company filed in the office of the clerk of the district court of McLean County a mechanic’s lien notice reciting that on June 6, 1950, it had entered into a contract with Frank Kuntz to “Supply material for house upon the following described real estate, to-wit: Lot 4 Block II, East Side Addition to Cole-harbor.” On May 3, 1951, an instrument designated “Mechanic’s Lien,” to which was attached an itemized statement of building material, was filed in the office of the clerk of the district court. This instrument in part recited:

“T. M. Partridge being duly sworn says that he is a Partner of Dakota Lumber Co. doing business at Underwood North Dakota; that on the 6 day of June 1950, said Frank Kuntz made a contract with Dakota Lumber Co. to furnish building Materials for a certain House situated upon the following described land of which the said Frank Kuntz then and is now the Owner to-wit: Lot 4 Block 2 East Side Addition to Coleharbor N. D. * * * and that there is due and owing thereon to said Dakota Lumber Co. after allowing all credits the sum of Three Hundred Seventy and 08/100 Dollars, for which a Mechanic’s Lien is hereby claimed, - under Chapter 35-12 of the North Dakota Revised Code of 1943, in favor of the said Dakota Lumber Co. upon said House including the land herein- . before described, upon which the same is situated.”

The material described in the lien was used in building the house on Lot 5 and constitutes between one-third and one-half of the.material that went into the structure. Why the house was built on Lot 5 instead of Lot 4 which Frank Kuntz had purchased on contract from C. S. Murphy is' not directly explained, but the inference is that the house was located on Lot 5 by mistake.

At this point we take notice of the defendants’ contention that the lien in question is claimed only upon the house as separate and apart from the lot on which it stood. This contention is clearly untenable. Section 35-1218, NDRC 1943 upon which the defendants rely requires that at the time the material is furnished the seller shall notify the purchaser by a written notice stating that the seller claims that in event of default the seller may remove the building from the real estate upon which it is placed regardless of whether or not the building is upon a foundation. Not only did the seller in this case fail to comply with the statute by giving the required notice but the lien which we have above quoted specifically provides that the Dakota Lumber Company claims a lien upon the house and the land upon which it is situated.

On May 21, 1951, the Dakota Lumber Company instituted an action against Frank Kuntz and C. S. Murphy for the foreclosure of the lien filed in the office of the clerk of the district court on the third day of May, 1951, and there for the first time it appears that the lien is not being asserted against the land. The complaint, among other things, states:

"That the Plaintiffs make no personal claim against the Defendant, C. S. Murphy, and admit that the said C. S. Murphy is the owner of Lot four (4), Block Two (2), East side Addition to Coleharbor, McLean County, North Dakota; that this action is brought for the sole purpose of foreclosing a lien of the Plaintiffs upon the building located thereon and not for the purpose of making any claim against the said C. S. Murphy, or on the land on which the building is located.”

It may be noted that, the structure described in the lien is a “house” while the complaint uses the word “building.” The complaint prays

“that said building located upon Lot 4, Block 2 of East Side Addition to Coleharbor, North Dakota, be sold under a decree of this Court according to law to satisfy the amount of the lien together with costs of this action; * * ⅝

The defendants in the action to foreclose defaulted and the attorney for the plaintiffs filed an affidavit of default and an affidavit of proof. In the latter he states:

“That affiant has read the allegations in the complaint in the above entitled matter and on information and belief, he states that all the allegations therein contained are true.”

On the twenty-fourth day of July, 1951, the court made its findings of fact, conclusions of law, and order for judgment. In the findings of fact it is recited that all the allegations in the complaint are true. In the conclusions of law it is provided

“that the Plaintiff be entitled, to a foreclosure on that certain building located upon Lot four (4), Block Two (2), East Side Addition, Coleharbor, North Dakota, and that the same be sold according to law to satisfy the amount of the lien, together with the costs of this action * * *.”

On the twenty-fifth day of July, 1951, there was entered a judgment and decree of foreclosure of mechanic’s lien directing a sale of the property and specifically providing

“That the property directed to be sold by this decree is that certain frame residence situated in the county of McLean and State of North Dakota located on Lot four (4), Block Two- (2), East Side Addition, Coleharbor, North Dakota.”

It may be here noted that the “building” has now become a “frame residence.”

On July 26, 1951, the clerk of the district court of McLean County issued a special execution directing the sheriff to sell

“That certain residence situated in the County of McLean, North Dakota, Located in Lot four (4), Block two (2), East Side Addition, Coleharbor, North Dakota.”

The sheriff caused a notice of sale of personal property to be published on August 2 and August 9, 1951, describing the property as it was described in the special execution. The sale was to be held and was held on August 10, 1951, at 10 a. m. at the front door of the -courthouse in the city of Washburn. The sheriff filed a return properly setting forth the steps that he’had taken and reciting that he had sold the property to George Bellamy Partridge and Thomas M. Partridge, doing business as Dakota Lumber Company. The amount for which the property sold was $360.63, which after deducting the costs of sale left $349.18 to apply on the judgment.

On August 20, 1951, the Dakota Lumber Company caused to be served on Alma Kuntz personally and on Frank Kuntz by leaving a copy with his wife at his place of residence the following notice:

“You are hereby notified that the undersigned is owner of building locat- . ed on Lot No. 4 Block II East Side Addition of Coleharbor. That you have no legal authority to occupy said ■ premises.
“You and each are hereby notified to vacate and surrender said premises to the undersigned 3 days after service of this notice upon you.
“You and each are hereby notified that in event of your failure to vacate said premises in 3 days after service up on you that further proceedings to evict you from said premises will be taken.”

The facts pertaining to the history of the title to Lots 4 and 5, Block 2 are pertinent to the contentions of the parties. According to the testimony of C. S. Murphy, a real estate dealer of Coleharbor, in the summer of 1950 he made arrangements to sell Lot 4, Block 2 to Frank Kuntz, to whom he later delivered a deed. The consideration was $75. This deed was executed in the early part of 1951 but was never recorded. Murphy also sold Lot 5 to another man to whom no deed to Lot 5 was issued. After the delivery of the deed to Lot 4 to Kuntz, he asked Murphy to give him a deed to Lot 5 because he and the man who had bought Lot 5 agreed to exchange property. Murphy complied with this request and executed the deed of June 20, 1951, to Frank and Alma Kuntz, to which we have already referred. Kuntz returned to Murphy the unrecorded deed to Lot 4 and Murphy tore it up. This act did-not retransfer the title to Murphy. Section 47-0910, NDRC 1943. Russell v. Meyer, 7 N.D. 335, 75 N.W. 262, 47 L.R.A. 637; Brugman v. Charlson, 44 N.D. 114, 171 N.W. 882, 4 A.L.R. 400. Kuntz had built a small building on Lot 4, 6 x 10 x 7 feet. This building was used by the Kuntzes for storage and is generally referred to in the testimony as “the shack.” When cross-examined regarding her knowledge of the proceedings to foreclose the mechanic’s lien against her husband, the plaintiff testified that they had a building on Lot 4 and that was the one she thought was being foreclosed on. That testimony is not improbable when we consider that the complaint asked for the foreclosure of a lien “upon the building” located on Lot 4.Even the notice to vacate served on Frank and Alma Kuntz after the sale describes the structure as a “building located on Lot No. 4.” The Kuntzes were then living on and occupying Lot 5, which they owned under a recorded deed. Nevertheless, the notice required them to vacate and surrender the premises, which they obviously under no circumstances were required to do if the notice was intended to apply -to Lot 5.

A mechanic’s lien is purely statutory. Its existence and extent are defined and limited by legislative enactments. Dunham Lumber Co. v. Gresz, 71 N.D. 491, 2 N.W.2d 175, 141 A.L.R. 60. The procedure prescribed by these enactments must be substantially followed or the lien does not exist. Stoltze v. Hurd, 20 N.D. 412, 128 N.W. 115, 30 L.R.A.,N.S., 1219, Ann.Cas.l912C, 871; Austad v. Dreier, 57 N.D. 224, 221 N.W. 1. The statute requires among other things that no person furnishing material shall be entitled to a lien unless he files with the clerk of the district court a notice in writing, which must contain a description of the property to be charged with the lien. Section 35-1204, NDRC 1943. The lien filed in this case states that the Dakota Lumber Company claims a lien on a certain house situated on Lot 4, Block 2,- including the land upon which it is situated. The defendants now contend that this description is sufficient to give the Dakota Lumber Company a valid lien on the -house situated on Lot 5, Block 2. but not upon the lot on which it is situated. The description cannot be said to be ambiguous. It is a complete and accurate description of a lot in the city of Coleharbor. In J. J. Howe & Co. v. Smith, 6 N.D. 432, 71 N.W. 552, 553, it is said:

“The case before us is not a case in which the description which does not accurately describe the land sought to be charged with the lien does in fact 'describe another piece of real property with technical exactness. In such a case there is no ambiguity to be cleared up by a resort to extrinsic facts. It is a case where the lienor has precluded all possibility of his claim that he intended to describe the land 'he is seeking to subject to a lien, because he has explicitly described another parcel of real estate, and because no reformation of the description is in such cases permitted. When one lot is designated in the lien in terms which point it out with absolute precision, no room is left to inquire whether another lot was intended.”

The case now before this court is somewhat like that considered by the Supreme Court of Montana in Goodrich Lumber Co. v. Davie, 13 Mont. 76, 32 P. 282. That action was brought to enforce a lien for building materials supplied by the plaintiff for the construction of “that certain frame building and outhouses” located on Lot 14 in Block 200. These structures were actually placed on lot 13 which was owned by the defendant against whom the lien was filed. It was there contended that the der scription of the buildings was sufficient even though the lot number was wrong. The court said:

“In the description under consideration there is no error or mistake. ‘Lot 14 in block 200’ is certain, definite, and unmistakable. By it one would identify that piece of ground as officially platted. By it he would not identify lot 13. A description of lot 14 cannot sustain a lien for materials furnished and used in the erection of a building on lot 13.”

The defendants cite MacPherson v. Crum, 43 N.D. 219, 174 N.W. 751, which reiterates the rule of J. J. Howe & Co. v. Smith, supra, that

“Any description in a mechanic’s lien statement which will enable a party familiar with the locality to identify the property with reasonable certainty is sufficient as between the parties.”

In that case the lien statement gave the correct lot number upon which the house for which the materials were furnished was located. There was also another house on the same lot. The plaintiff was permitted to show which house was the one for which the materials were furnished and upon which the lien was claimed. The right to foreclose the lien upon that house was sustained. No misdescription of the lot was involved. That case is in point only to the extent that it states the general rule as quoted above. We can reach no other conclusion but that the Dakota Lumber Company never obtained a lien upon any structure on Lot 5, Block 2. See also Smith v. Bowder, 31 S.D. 607, 141 N.W. 786.

The defendants contend that the present action is a collateral attack on the judgment rendered in the action to fore-close the lien. Citing Bovey-Shute & Jackson v. Odegaard, 53 N.D. 871, 208 N.W. 111. The rule laid down in that case is that

“When a mechanic’s lien has been foreclosed by action, and title acquired thereunder, the judgment cannot be questioned in a collateral proceeding.”

It was further held in that case that one who held title to real estate evidenced by unrecorded deeds and who was not made a party to the action to foreclose the mechanic’s lien but had actual knowledge of the lien and the pendency of the action was bound by the judgment. Iii that case the mechanic’s lien was valid and the proceedings foreclosing it were valid. There was no misdescription of the property. The undisclosed owner who, .with knowledge of the lien and the foreclosure proceedings, stood by without making a disclosure of his interest in the property was held bound by the judgment. His attempted attack on the judgment was held to be collateral and unavailable to him. There is no connection between -that situation and the one before us. In this case the Dakota Lumber Company never had a lien on the house situated on Lot 5. When it undertook to foreclose its lien, its complaint showed that it sought' to foreclose on a building on Lot 4. There was a building on Lot 4 that had been put there by the Kuntzes. The description of the premises as being Lot 4 persists throughout all of the proceedings, including the sale and the notice to vacate. The plaintiff in this action makes no claim with respect to Lot 4 but insists that none of the proceedings apply to the house on Lot 5. , The defendants removed the house, from Lot. 5, and for damages resulting therefrom this suit is brought. It is clearly not a collateral attack on the judgment foreclosing the mechanic’s lien.

The validity of the defendants’ act in removing the house from Lot 5 must rest on the title the Dakota Lumber Company acquired at the sheriff’s sale. Regardless of the invalidity of all of the preceding proceedings, the sale itself is completely void as to any purported vesting of title in ■ the house on Lot 5 in the Dakota Lumber Company.

“ * * * since the courts guard with jealous care the rights and interests of persons whose property is sold under their process, or by their order, mistakes or omissions in notices of sale which are calculated to deter or mislead bidders, or to depreciate the value of the property, or to prevent it from bringing a fair price, will be fatal to the validity of the notice, and also to that of the sale made pursuant thereto.” 31 Am.Jur.Judicial Sales, Section 62. .

The description of the property to be sold in this case more nearly approximates that of the shed on Lot 4 than it does the four room house on Lot 5. When considered as a notice of sale of the house on Lot 5, the published notice is so clearly inadequate that it amounts to no notice at all and any purported sale of the house on Lot 5 is absolutely void and subject to be attacked, collaterally or otherwise.

The sale was held on August 10, 1951. On August 20 a notice to vacate describing the property as a building located on Lot 4 Block 2 was served on Alma Kuntz. This notice is dated August 18, 1951, and signed by Thomas M. Partridge for the co-partnership.

Mr. Partridge testified' that before the notice was served he went out to the house and Mrs. Kuntz was there and that at that time he knew the house was on Lot 5 and knew the difference between Lot 5 and Lot 4. He further testified that about ten days or two weeks later, which would be sometime in the early part of September, 1951, Partridge went out to the house with George Chilton, a prospective' buyer. The house was unlocked. He and Chilton went in. They looked around and made a list of the personal property they found in the house. Partridge sold the house to Chilton and gave him a bill of sale.

During the latter part of the summer of 1951 Frank Kuntz was working at Dickinson, North Dakota. About September 1, Mrs. Kuntz joined him in Dickinson and they lived in an apartment for about a month. She then returned to Coleharbor and found that the house had been moved off Lot 5.

We have reached the conclusion that the purported sheriffs sale conveyed no right, title, or interest in the house on Lot 5 to the defendants, George Bellamy Partridge and Thomas M. Partridge, doing business as Dakota Lumber Company; that their entrance upon Lot 5, the sale of the house to George Chilton, and the removal of the house by Chilton pursuant thereto constituted a trespass which under the evidence here presented entitled the plaintiff to recover compensatory damages. The jury, as shown by its verdict and its answer to special interrogatory number 1, determined that .the plaintiff suffered no damage by virtue of the severance of the house from the land and the removal. The verdict in this respect is not sustained by the evidence. A new trial must therefore be granted. The order denying the motion for new trial is reversed.

BURKE, SATHRE, JOHNSON and GRIMSON, JJ., concur.