83 N.W. 10 | N.D. | 1900
This is an action of ejectment to recover the possession of a quarter section of land located in Ramsey county. The case was tried to the court without a jury. The plaintiff prevailed, and the defendant brings the case to this court for trial de novo. The complaint sets forth the plaintiff’s ownership of the land in dispute, the unlawful entry of the defendant thereon, also damages suffered by reason thereof, and prays for judgment dispossessing the defendant. The answer admits that the plaintiff has the legal title to the land, but denies that defendant wrongfully entered into the possession of said premises, or that he holds possession unlawfully; and in this connection alleges that he took and now has possession under and by virtue of a written contract of purchase executed by plaintiff, and delivered to him by one A. M. Powell, plaintiff’s duly-authorized agent, for the sale of said land; further, that, pursuant to the terms of said contract, he paid to the plaintiff, through his said agent, the sum of $100 on the purchase price, and that plaintiff .still retains the same. A copy of the contract is attached to the answer. The plaintiff replied, denying the execution of the contract; also denying that he either received or retained any portion of the purchase price of the land, or authorized his agent to do so.
The determination of the case turns entirely upon .facts which are not in dispute. They are substantially these. The plaintiff owned several tracts of land in Ramsey county, among which was the tract in question. At the time the transaction involved in this case occurred he resided in Amherst, Mass. These lands were listed by him with A. M. Powell, a real estate dealer at Devils Lake. There is some evidence that he left with Powell a written memorandum of each parcel, with the price and terms of sale. No such memorandum was produced at the trial. It appears to have been lost, and oral testimony was given as to its contents, but there is no evidence that it was signed by plaintiff. The evidence shows that Powell had no written authority from plaintiff authorizing him to make contracts for the sale of his lands generally, or any such authority as to the particular tract, except as will hereafter appear. His agency was that of a real estate broker, and extended only to procuring purchasers for plaintiff’s lands. In case a sale was effected, he received a commission of 5 per cent, on the purchase price. The plaintiff fixed
The trial court found “that before making any improvements on said land the defendant had due notice from the plaintiff that plaintiff disallowed and disaffirmed said contract, and refused to acknowledge the same, or ratify the acts of said A. M. Powell in the premises.” This finding of fact is challenged by appellant, and our examination of the evidence leads us to the conclusion that it is not supported. But we do not deem it a material fact in the determination of the case; for it is apparent.that, if the defendant had a valid contract of purchase, his entry and possession was lawful, and if, on the other hand, the contract was invalid, he was a trespasser nb initio. Possession under an instrument which is a nullity gives no rights, save by ratification; and in this case there was no ratification, but the most prompt and emphatic disavowal. The sole question, then, is this: Is the contract under which defendant justifies his possession a valid contract? A negative answer must be given to this question. This being a contract for the sale of real