Guaranty Savings Bank v. Bladow

This action was brought to foreclose a mortgage, owned by the plaintiff in error, upon certain land in North Dakota which the defendant in error claimed was his, and not subject to the lien of the mortgage. It was brought in the proper state court, and the trial resulted in a judgment in favor of the defendant, declaring him to be the owner of the land, that the mortgage of the plaintiff in error was no lien upon it, and that it should be canceled as an apparent cloud upon the title of the defendant.

The plaintiff appealed from this judgment to the supreme court of the state, where it was affirmed (6 N. D. 108, 69 N. W. 41), and the case was brought here on writ of error.

The material facts are as follows: On January 6, 1881, one Anderson filed in the proper land office at Fargo, in the then territory of Dakota, his homestead application to enter the land which is involved in this action. On July 20, 1881, he appeared before the register and receiver, and, under § 2301, Revised Statutes, commuting his homestead to a pre-emption entry, made final proof of his claim, which was allowed and a final certificate issued, which was filed in the office of the register of deeds of the proper county on July 25, 1881. After the filing of proof, and on July 20, 1881, Anderson mortgaged the land to one H. E. Fletcher, who, on June 20, 1882, assigned the mortgage to the plaintiff. Both the mortgagee and the assignee acted in good faith, and each instrument was executed for a valuable consideration.

On May 8, 1882, Anderson conveyed the land to one R. M. Ink, who on April 7, 1883, conveyed the same to one J. S. Ink, and on January 6, 1885, J. S. Ink conveyed the premises to the defendant.