Bank of Inkster v. Christenson

194 N.W. 702 | N.D. | 1923

BxRDzell, I.

This is an appeal from a judgment in an action to foreclose certain chattel mortgages securing a note of $5,000, dated April 14, 1920, due November 1, 1923, and executed by the defendant August Christenson alone. The facts as disclosed by the record are substantially as follows: The defendant Mary Christenson was twice married. Her first husband died in 1910. Up to that time they had been living on a rented farm. The widow conducted a sale selling the personal property, except a cow and some heifers. Subsequently she moved to her own farm where she, together with her three children, continued to reside, renting the land for two years to a tenant. In the fall of 1912, she rented the land to the defendant August Christenson who continued to farm it as a tenant until 1916, the defendant Mary and her children residing thereon. In July, 1916, the defendants intermarried and August Christenson continued to carry on the farming operations until the fall of 1921. At the time of the marriage Christ-enson owed between $1,500 and $2,000, and, after conducting the farming operations for a period of approximately four years, or until April, 1920, he was owing $4,020.54, which indebtedness was largely represented by notes in the plaintiff bank and two other banks. To take up this outstanding indebtedness and to cover advances to be made during the then current year, the note in suit was executed. Concurrently therewith, August Christenson executed a chattel mortgage covering a large amount of farming equipment and live stock. The following month he executed another mortgage on an undivided two-thirds interest in the 1920 crop on certain rented land as security for the same indebtedness. In February, 1921, as additional security, he gave another mortgage on two horses and the 1921 crop, and in September of the same year, he executed a mortgage upon an automobile and some hogs. These mortgages contained the usual insecurity clause. August Christenson disposed of some of this mortgaged property and, in the late summer or fall of 1921, an attorney, acting for Mary Christenson, notified the plaintiff that she claimed some of the' property covered by the mortgages. Also, August Christenson requested the plaintiff to come and take the property as he would no longer be responsible for it. Thercupon.this action was instituted. The trial court gave the plaintiff a judgment against August Christenson of $4,100 and costs, and further adjudged the mortgages to be first liens upon the property described in them and decreed a foreclosure of the same. This judgment was entered the 2lth of November, 1922. Thereafter, on tho 12th of December, 1922, an order to show cause was issued, directing that the defendants show cause why .the judgment should not be amend-ccl so as to provide that tbe mortgages therein described constituted valid liens upon the increase of all female animals described in the mortgages. This order was issued upon the affidavit of the plaintiff’s attorney, which stated that, in drawing the findings, he had, through inadvertence and oversight, neglected to set forth this clause in the mortgages and similarly had neglected to incorporate in the judgment any provision covering such increase. Pursuant to this order the findings were amended and an amended judgment entered, extending the lien and the foreclosure to the increase of all female animals described in the mortgages. The order for the amended judgment was dated December 20, 1922, and directed the entry of a judgment nunc pro tunc as of November 27, 1922. Upon this appeal the appellant demands a trial de novo and also specifies certain errors for review.

The defendants answered separately in the court below, but were represented by the same attorney. The defendant Mary Christenson alone appeals. The principal contention is that the court erred in including in the judgment of foreclosure certain property of which she claimed to be the owner. This consisted of a single buggy, manure spreader, cream separator, some milk cows, steers, calves, hogs and crops. Both she and her husband testified to her ownership of this property, but they also testified to certain facts upon which the trial court based an estoppel to assert her title as against the plaintiffs in this action. Briefly stated, these facts are: After the marriage of the two defendants, the business ivas transacted in the name of August Christenson. The charge account at the store for family expenses was in his name. Property that was sold from the farm, whether property claimed now to have been owned by Mary Christenson or August Christenson, was sold by him, and when the proceeds were deposited the deposit was in his name. He had previously borrowed money or secured indebtedness on at least two occasions at other banks, mortgaging the property which is now claimed to have been the property of Mary Christenson. He asserted to the plaintiff bank that he ivas the owner of the property. There was a mortgage on the land of Mary Christenson, and August paid the interest, — part of the time borrowing money on his own note for such interest. The property was all listed for taxation in the name of August. August had sold hogs to the butcher and received the payment, which hogs are now claimed to have been owned by Mary. August was doing all of the business. He made arrangements for the support of the family, paid interest on the farm mortgages and paid taxes as though he owned all of the property. In the testimony of August, he emphasizes throughout the idea that he was acting upon his wife’s instructions at all times, but nevertheless ho tacitly admits that the third parties with whom he dealt did not know of her asserted dominion over him and her property. We arc satisfied from a careful perusal of the record that the testimony amply supports the finding of the trial court to the effect that the defendant Mary Christenson held the plaintiff out to the world as the owner of the property embraced in the mortgages and the conclusion that as to the plaintiff, dealing with him on the strength of his assumed ownership, she is estopped to set up her title.

Further contention is made that the trial court erred in amending the judgment after the term at which it was entered had gone by. There is no merit in this contention. It is firmly established in this jurisdiction that the power to vacate or modify judgments is not restricted to the term at which they are entered. In this state there are no terms of the district court in the common law sense of the word.

Section 7350, Comp. Laws 1913, provides “The district court is always open for the purpose of hearing and determining all actions, special proceedings, motions and applications of whatever kind or character, ...” and § 7966, Comp. Laws 1913, provides “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” The trial court clearly had the power to entertain the motion of the respondent and to modify the findings and judgment. See Martinson v. Marzolf, 14 N. D. 301, 103 N. W. 937; Plano Mfg. Co. v. Doyle, 17 N. D. 386, 17 L.R.A.(N.S.) 606, 116 N. W. 529.

The judgment appealed from is affirmed.

BRONSON, Ch. J., and ChristxaNson, SveiNbjorn, JohnsoN, and Nuessle, JL, concur.