Headley v. Van Ginkel

HOUSER, J.

This is an appeal from a judgment in a suit brought for the purpose of setting aside an order there

[446]

tofore rendered in a proceeding instituted under the so-called Land Title Law (Stats. 1914 [1915], p. 1932), for the registration of land, by which order a former order made in the same proceeding was vacated.

Briefly stated, the history of the matter is as follows: By virtue of an appropriate proceeding, a decree was rendered by which certain land apparently belonging to the plaintiff herein was duly registered. Seventeen months thereafter, on the ground of fraud as to him, the defendant herein petitioned in said proceeding for the cancellation of the order formerly made therein and for equitable relief in the premises. Following a hearing in said matter, the order originally made in said proceeding was vacated and a new order was made affecting the title of the properties of the respective parties. After the lapse of a period of more than eleven months following the date of the order last made, the instant action was commenced for the purpose of canceling the second order made in the Land Title Law proceeding, which action, as hereinbefore indicated, resulted in a judgment by which the cancellation of the said second order was denied. It is from such judgment that the appeal is taken herein.

In effect appellants contend that the trial court was without jurisdiction to make the said second order and that it should be set aside for the reason that it is void on its face. The reasons assigned by appellants for the invalidity of the second order, in substance, are that the statute (sec. 45 of Stats. 1914 [1915], p. 1932), places a limit of one year on the time for the bringing of an ordinary action for the recovery of any interest in land after its “first registration”; that by section 37 of the same act it is provided that in case of fraud, the same rights are available to the person defrauded as he “would have had if the land were not under the provisions of this act”; and that although in the complaint of plaintiff fraud was pleaded, no findings of fraud, as such, were made by the trial court.

More than one year having elapsed after the “first registration” before the defendants herein petitioned the court for an order vacating the first order made in the registration proceedings, by the terms of the statute it is plain that unless fraud was pleaded and proved in the petition which was filed by the defendants herein, the defendants would