Ockendon v. Barnes ( 1876 )

Beck, J.

The note which is secured by the mortgage, appears to' have been executed for a part of the consideration of the sale of the land covered by the mortgage; at all events it contains a condition to the effect that it is .“not to be paid until all incumbrances are removed from the title” of the land. The petition shows the existence of a mortgage on the land to one Davis, and that, being insane, a guardian for him was appointed by the Circuit Court of Henry county, who executed a release of that mortgage, which is set out in full. To the petition defendants answered, admitting the execution of the note and mortgage and that they are unpaid, and alleging that other incumbrances rest upon the land in addition to the one mentioned in the petition which, they say, is not satisfied because the appointment of the guardian was fraudulently procured, and that Davis was never judicially adjudged insane. Other defenses are set up which need not be noticed. To that part of the petition alleging fraud in the appointment of the guardian of Davis, and that he was never adjudged insane, plaintiff demurred and the demurrer was sustained.

I. The first question presented for our decision involves the correctness of this ruling. As tj> the allegation of fraud, the demurrer, if for no other reason,j was correctly sustained on the ground that it simply charges fraud without alleging or showing facts upon which the charge is based. A mere charge of fraud in a pleading is not sufficient, as it is a legal conclusion, but the facts upon which the fraud is based must be averred. The allegation denying the adjudication upon the insanity of Davis found in the count of the answer demurred to, ought to have been permitted to stand, but no prejudice was suffered by defendant in sustaining the demurrer, so far as this averment is concerned, for the second count, not assailed by the demurrer, repeats the allegation in question.

2 gtjuídiak ULsanYty-dpresumption. II. The record in the insanity proceedings was admitted in evidence against defendant’s objections on the ground that ^ does n°k sh°w jurisdiction acquired by the court or an adjudication of insanity. The Circuit Court bad- jurisdiction of the matter. Code, §2212. The record, we think, by a fair interpretation, shows an adjudication of insanity. Certainly the appointment of the guardian upon the petition charging insanity must be regarded, under the presumption we are required to exercise, as a determination of the fact of insanity.

It is objected that no notice or other proceeding connected with the record are shown. We will presume in the absence of any showing that the proceedings required were not had, that the adjudication was based upon such preliminary matters as the law requires.

III. A copy of the letter of guardianship was admitted in evidence. This is now complained of. The record in the proceeding showed all that is contained in the copy. If erroneously admitted, it wrought defendant no prejudice for the facts sought to be proved by it were established by the record.

IY. It is insisted that the entry of satisfaction of the mortgage does not sufficiently identify the instrument to which it relates. Ye think otherwise, and that no one could possibly be deceived by being led to suppose that the mortgage in suit was not duly satisfied upon the record.

3. tax deed: curing1.11 pi° Y. The defendant introduced the tax books of the county which show that, in 1861, the land was sold for taxes. It was not shown that redemption had been made from this sale, or that a deed had been executed thereon to any one. The deeds under the law could have been issued October 7, 1864. The suit was tried June 15, 1875, nearly eleven years after the time for the execution of the deed. Without holding that a deed could not, after so long a lapse of time, be executed under any state of facts, we are of the opinion that the presumption exists that the purchaser has abandoned his rights to the deed; certainly those dealing with the owner of the land may presume such an abandonment and that the deed will not be called for by the purchaser. They would be authorized to purchase and pay for the land upon this presumption and the purchaser at the tax sale could not afterwards take a deed and defeat thereon the title they acquire. There ought to be some time at which the purchaser at a tax sale would be cut off from his right to enforce his claim against those holding the land under the tax-payer. Eleven years certainly is more than ample time in which a purchaser at a tax sale may claim his deed, and it is not too short to raise the presumption against him of abandonment of his claim under the purchase in favor of one holding under the tax-payer.

Areiemed.