Teel v. Miles (Neb.)...

Walker, People v. (Mich.). 664 Walkley, Boyden v. (Mich.). 265 Wallick v. Pierce (Iowa). .1118 Walther v. Briggs (Minn.). 871 Walton v. Campbell (Neb.).

Telling, Case v. (Mich.).

.1028

641

.1099

429

909

737

593

Terry v. Durand Land Co. (Mich.).

510 Warehouse & Builders' Supply Co. v. Gal525 vin (Wis.)

804

Thayer, State v. (Minn.).

Thomas v. McDaneld (Iowa).

572 Warner, Maloney v. (Wis.).

.1119

Thomas, School Dist. of Beatrice (Neb.)

921

Waukesha County, Randles v. (Wis.). .1034 731 Way, Clark & Leonard Inv. Co. v. (Neb.)..1021 Webb v. Holt (Mich.).

637

128 Wedeking, Anderson v. (Iowa). 61 Weirengo's Estate. Mason v. (Mich.).

360

489

524

Weis v. Morris (Iowa).

208

CAMP v. MURPHY. (Supreme Court of Minnesota. May 26, 1897.) CHATTEL MORTGAGE-RENEWAL AFFIDAVITJUKAT.

A renewal affidavit of a chattel mortgage was taken before a person who signed the jurat as W. F. Cooley, "Recorder." The record showed the existence of the village of Morris, in Sterens county, Minn.; that in said village there was an office designated as office of "village recorder"; that there was in fact such an officer therein as village recorder; that said affidavit was in fact filed in said office, where the original mortgage was filed; that said Cooley certified upon said affidavit with proper venue thereon indorsed; that said affidavit was filed in his office, and affixed to his signature there the word "Recorder." Held, in connection with all the facts in this case, a sufficient designation of his office, and that the affidavit was valid.

(Syllabus by the Court.)

Appeal from district court, Stevens county; C. L. Brown, Judge.

Action by Charles E. Camp against Timothy Murphy. Judgment for defendant, and plaintiff appeals. Affirmed.

Geo. E. Darling, for appellant. Wm. C. Bicknell, for respondent.

BUCK, J. The plaintiff claims title to a certain frame building situate upon lot 9, block 13, in the village of Morris, Stevens county, in this state. His right to this building is based upon an execution sale issued upon a judgment rendered in justice court wherein he was plaintiff and one Elliott was defendant. The regularity of the sale is not challenged. The frame building is conceded to be personal property, and the defendant's claim to it is based upon a chattel mortgage executed to him by Elliott. Before the expiration of the time in which it was required to be renewed, the defendant made an affidavit of renewal in these words, viz.:

"State of Minnesota, County of Stevensss.: Timothy Murphy, of said county, being duly sworn, says that he is the same Timothy Murphy and mortgagee and person named in, and now the holder of, a certain chattel mortgage made by R. F. Elliott, an artist and photographer of the village of Morris, state of Minnesota, to Timothy Murphy, of said village and state, and which said mort71 N.W.-1

gage falls due on Sept. 1st, 1893, which mortgage bears date the 17th day of September, A. D. 1892, and was on the 17th day of September, A. D. 1892, duly filed in the office of the recorder in and for the village of Morris, in said county of Stevens, state of Minnesota. That the sum of two hundred twenty-nine and /100 dollars is now remaining unpaid upon and secured by said mortgage, which constitutes the extent of the interest of said Timothy Murphy and lien upon the property therein mentioned, by virtue of such mortgage. [Signed] Timothy Murphy.

"Subscribed and sworn to before me this 24th day of Aug., A. D. 1895. W. F. Cooley, Recorder."

And said affidavit was attached to said chattel mortgage, and filed in the office of said village recorder of the village of Morris on the said 24th day of August, 1895, where the same has at all times remained, with the indorsement thereon in the words and figures following: "State of Minnesota, County of Stevens, Village of Morris. I hereby certify that the within instrument was filed in this office on the 24th day of August. 1895, at 4 o'clock p. m. W. F. Cooley, Re corder."

There is no controversy as to the facts, and and the only question arises as to the sufficiency of the affidavit of renewal; the plaintiff claiming that it was not properly executed, because it does not appear to have been sworn to before an officer authorized to administer oaths, and he asks to have an adjudication that the chattel mortgage is not a lien upon the building as against him.. Gen. St. 1894, § 5639, provides that the recorders of all villages in this state are authorized to administer all oaths and take all acknowl edgments of instruments authorized or required by law. The jurat is signed by "W. F. Cooley, Recorder," and the plaintiff insists that the word "Recorder" is not a sufficient designation of the official character of Cooley, and that the affidavit is therefore void, and of no effect. This is the only point in the case. It appears from the chattel mortgage that it was given upon property situate in the village of Morris, Stevens county, Minn., wherein the mortgagor resided, and upon this chattel mortgage was the in

dorsement of the village recorder that it was filed in his office September 17, 1892. The trial court found that the mortgage and indorsements were filed in the office of the village recorder of the village of Morris. Thus it appears from the records: (1) That the property was situate in the village of Morris, Stevens county, Minn.; (2) that the mortgagor resided therein; (3) that there existed the office of village recorder in the village of Morris, and that there was an officer desig nated as "village recorder" filling that office; (4) that the affidavit was sworn to before W. F. Cooley, "Recorder," and that upon this affidavit was an indorsement showing the venue as being state of Minnesota, county of Stevens, village of Morris; and that said W. F. Cooley held an office of which he designated himself "Recorder," although the formal designation of the village of which he was recorder was not appended to the word "Recorder." We are of the opinion that it sufficiently appears from competent evidence in the record that W. F. Cooley was recorder of the village of Morris, and as such had authority to administer the oath to Elliott, the signer of the renewal affidavit, and that the affidavit was sufficient.

Attention is called to the fact that the paper books furnished the court are defective in several respects, and do not correspond with the original record filed with the clerk. In the venue on the recorder's certificate of filing of the affidavit the words "Village of Morris," as well as a statement that the affidavit was attached to the chattel mortgage, and filed in the office of the village recorder of the village of Morris on the 24th day of August, 1895, and the indorsement thereon, where they have always remained, do not appear in the paper book furnished the members of the court. We are of the opinion that the judgment should be affirmed. So ordered.

BOVEY-DE LAITRE CO. v. DOW et al.1 (Supreme Court of Minnesota. May 19, 1897.)

ADVERSE CLAIMS TO LAND-Evidence,

1. Held, that the complaint herein states a cause of action under the provisions of Gen. St. 1894, c. 75, § 5817, to determine adverse claims to real estate, and that this is not an action to remove a specified cloud upon the title to real estate.

2. Evidence considered, and held, that it sustains the findings and decision of the trial court. (Syllabus by the Court.)

Appeal from district court, Itasca county; G. W. Holland, Judge.

Action by the Bovey-De Laitre Company against John B. Dow and others. Judgment directed for plaintiff. From an order denying a new trial, defendants appeal. Affirmed.

Ripley & Brennan and William Foulke, for appellants. Wilson & Van Derlip, Uri L. Lamprey, and W. C. Goforth, for respondent.

1 Rehearing denied.

START, C. J. The trial court in this case found as a fact that the plaintiff was the owner in fee of the land described in the complaint, and that the defendants had no title to or interest therein, and directed judgment accordingly, quieting the plaintiff's title. The defendants Dow appeal from an order denying their motion for a new trial. The first and practically the only question of any importance presented for our consideration on this appeal is whether this action was one to remove a specified cloud from the plaintiff's title, or one under the provisigns of Gen. St. 1894, c. 75, § 5817, to determine adverse claims to real estate. If it is the former, the order appealed from must be reversed, for the evidence does not establish such a cause of action. Upon the trial the action was treated by the plaintiff and the court as one to determine adverse claims to real estate. It is settled by the previous decisions of this court that a complaint which is clearly one to remove a specified cloud upon title to real estate cannot, if it fails to state facts sufficient to sustain an action for such specific purpose, be sustained, although it alleges facts sufficient to constitute an action, under the statute, to determine adverse claims to real estate. Walton v. Perkins, 28 Minn. 413, 10 N. W. 424; Knudson v. Curley, 30 Minn. 433, 15 N. W. 873. The rule established by these decisions must be limited to cases where it clearly appears from the complaint that the only cause of action intended to be relied upon was one for the removal of a specified cloud; for the rule seems to encroach upon the fundamental principles of our Code, abolishing all forms of action, and giving relief upon the facts pleaded and proven, without reference to forms. It does not appear from the complaint in this case that the cause of action intended to be relied upon is one for the removal of a specified cloud. On the contrary, the only cause of action alleged is one to determine adverse claims to real estate.

The complaint alleges that the plaintiff is the owner in fee of the land therein described, which is vacant and unoccupied, and to which the defendants claim some title adverse to the plaintiff and its title, which claim of defendants is void in fact, and concludes with a prayer for relief appropriate in an action under the statute to determine adverse claims to real estate. But it also unnecessarily attempted to anticipate and allege what the plaintiff understood the defendants' adverse claim was. The unnecessary allegations of the complaint were to the effect that the defendant Dow on November 1, 1892, claimed to have an interest in the lands, and on that day executed a deed of them to Charles Joy, but the deed was not recorded until December 10th thereafter; that the claim or interest in the lands so conveyed to Joy was adverse to the existing title of the plaintiff. and Joy, for a valuable consideration paid by the plaintiff, conveyed