The Northwestern Reporter Volume 168 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1918 Excerpt: ...in Tracy v. Wheeler, 15 N. D. 248, 107 N. W. 68, 6L.E.A. (N. S.) 516, the Legislature intended to abrogate the rule announced in that decision. It is said that "the legislative intent by the amendment was not to adhere to the old rule, but to obliterate it" It is stated that the Legislature amended the statute at the first opportunity after the decision in Tracy v. Wheeler et al. was handed down. This argument is unsound and based upon erroneous premises. The decision in Tracy v. Wheeler was handed down In April, 1906. The next Legislative Assembly convened in January, 1907, but the statute upon which plaintiff relies was not enacted until 1909. The statute does not purport to have any application in any action except one to determine adverse claims. Ita avowed purpose Is to prescribe a rule of procedure in such actions. The case of Tracy v. Wheeler et al. was not an action to determine adverse claims. It was an equitable action to cancel a specific mortgage. The complaint described the specific mortgage sought to be canceled with particularity and gave the book and page of its record in the office of the register of deeds. The prayer for judgment was not "that the defendants be required to set forth their adverse claims and that the validity, superiority, and priority thereof be determined" (as in actions to determine adverse claims), but the prayer was that the lien or incumbrance claimed by virtue of the specific mortgage described in the complaint be adjudged null and void, and plaintiff's title quieted as against such claim. The rule announced in Tracy v. Wheeler was not one of procedure, but one of substantive law. And we are entirely satisfied that the members of the Legislature did not have any intention in enacting this statute ...