172 N.W. 862 | N.D. | 1919
This is an appeal from a judgment awarding the specific performance of a certain contract for the sale of real property. The judgment was in favor of the intervener, Fred H. Motsiff, and the plaintiff and the defendant appeal, and demand a trial de novo in this court.
There is little or no conflict in the evidence. Many of the facts are stipulated. It appears that the defendant, Long, owned a quarter section of land in Morton county in this state. On August 14, 1915, one L. N. Cary, a real estate agent at Mandan, wrote Long to the effect that if he wished to sell the land and would advise him of his wishes “he would be glad to put in an effort.” On September 3, 1915, Long replied that the land cost him in all $2,458.11, and that he did not feel disposed to take a loss at that time, and would be pleased to have Cary advise him what he thought it would sell for. To this letter Cary replied that the land ought to sell for $15 per acre. On October 22d, Cary wrote Long that he had received two offers for the land, one for
On the same day this letter was written, viz., March 28, 1916, the plaintiff, Mrs. William Boehm, commenced the present action to enforce specific performance of her alleged contract with Long for purchase of the land. At the same time she filed a notice of lis pendens. Plaintiff’s right of action, if any, exists by virtue of the correspondence hereinabove set forth. It is stipulated as a fact that on March 31, 1916, plaintiff’s attorney of record in this action, and A. A. Cary, were both informed of the contract which the intervener claimed to have- with Long for the purchase of the land in controversy.
Long, as stated in his letter of March 23, 1916, had also “placed it (the land) in the hands of Mr. Bobert H. Proudfoot of Chicago.” And while the foregoing correspondence took place between Long and the Carys, negotiations had also been carried on between Long'and Proud-foot, with the result that the intervener, Motsiff, claims to have purchased the land and to be entitled to a decree awarding specific performance of his contract of purchase. It appears that considerable of the negotiations between Long and Proudfoot were carried on over the telephone. However, on January 31, 1916, Long wrote Proudfoot as follows: “Yours of the 19th inst. received. If a sale could be effected of my 160 acres at Mandan within sixty days, I would take $17.-50 an acre net to me. See what you. can. do luith it.” Later in a telephone communication Long gave Proudfoot the terms of payment. At a subsequent date Long was informed in a similar manner that Proudfoot had sold the land to the intervener, Motsiff, and that the papers, including notice of deposit, would be forwarded to Long by the First National Bank of Mandan. On February 11,1916, said bank forwarded to Long for his execution a warranty deed for the premises. In the same letter were inclosed notes signed by Motsiff and his wife aggregating $2,300, and a real estate mortgage upon the premises in controversy securing the payment of such notes. In its letter accompanying these papers, the
After the bank received this letter, Motsiff and his wife agreed to the proposed change in the notes, and such change was made. Motsiff had already paid the $500 cash payment into the bank. The bank, however, had become aware of the notice of lis pendens which had been filed by the plaintiff and therefore refused to deliver the deed to Motsiff. Motsiff, however, stood on the agreement, refused to accept a return of his money and papers, and on March 31, 1916, instituted an action against Long to enforce specific performance of his contract of purchase.
In the meantime Long had received the letter from Cary of March 28, 1916, and on April 2, 1916, he wrote Cary as follows: “I have just returned from an absence from home of a week in northern Wisconsin and find your favor of the 28th ult. I inclose copy of letter this day forwarded to the First National Bank, of Mandan, which explains itself. I trust the bank has made no delivery of the deed. If it has already delivered the deed, I fear it may be too late for me to help you in the premises. I regret exceedingly that any misunderstanding has resulted.” On the same day he wired the bank not to deliver the deed to Motsiff, and also wrote the following letter to the bank: “On March 23 d I wrote you, inclosing certain papers and deed to be delivered upon the conditions named in my letter. I have received no acceptance of the conditions named from you. In the meantime notice has been received from Mr. L. N. Cary’s office that they, too, have effected a tentative sale of the N.W.J of Sec. 10. The land was in the hands of both agencies, and neither one had the exclusive right to sell, and while I maintain that I have a perfect right to pass the papers in your possession, I do not wish to do anything that will in any way involve my old friend L. N. Cary in unpleasant complications with his client. If you have not recorded my deed or made delivery of it, kindly return it to me. I do not wish to be involved in any legal complications in connection with the claims of the two agencies or their clients, and wish to do
On April 15, 1916, Long wrote L. N. Cary, as follows: “You have doubtless been advised of the snarl that has developed in the attempted sale of my land during your absence in the south. Of course it was not my thought to give anyone the exclusive sale of it, and I assumed that whoever found a purchaser would first submit the matter to me.' It seems, however, that your son thought that he had the right to close the deal. This was not my understanding, and the report of a sale by the other agent, Mr. Proudfoot, of this city, having reached me first, I felt, as a matter of fair play and business honor, that the land should go to his customer, although I much preferred from a personal standpoint to have it go to your customer. At any rate after executing the papers and forwarding them to the bank, it seems that all proceedings were stopped by the filing of a lis pendens by each party. Now I do wish that you would take the matter in personal charge, and see if you cannot have it fixed up some way so that all parties will be satisfied, withr out putting me to any further annoyance and expense. If you conclude that I must have an attorney to represent me, kindly advise me who will be a good man to look after my interests.” Thereafter considerable, correspondence followed between Long and Cary, and on June 26, 1916, Long conveyed the land to the plaintiff, Mrs. Boehm, for a consideration of $3,000.
A stipulation was entered into between the attorney representing Mrs. Boehm and the defendant, Long, and the attorneys representing Motsiff, that the court grant leave to said Motsiff to file his petition in intervention, “provided his complaint sets up a proper case for intervention, which question shall be tried out on demurrer to said complaintand that said petition in intervention be allowed to stand as a complaint in the said action against the plaintiff, Mrs. William Boehm, and the said defendant, Theodore K. Long, and that they have a period of thirty days in which to answer or demur to said petition in intervention.
The plaintiff and defendant demurred to the petition in intervention on the grounds: (1) That the intervener “had no interest in the matter1 in litigation, in the success of either party, or against both; ” and (2) that said petition “does not state facts sufficient to constitute a cause of action against either plaintiff or defendant, or both of them.”' The
Appellants assign error upon the overruling of their demurrer to the petition in intervention. It is contended that the action between the plaintiff and defendant involved merely the respective rights and duties of those two individuals under a certain contract, and that no one else had any interest therein. Under the statute, “any person may before the trial intervene in an action or proceeding, who has an interest in the matter in litigation in the success of either party, or an interest against hoth.” Comp. Laws 1913, § 7413. The statute is’not limited to any particular class of actions or proceedings, but is general' in its application. While the rule of English chancery practice is that parties to the contract, or those who have been substituted in their place,on the death of the original parties, on the conveyance of the land, or on the assignment of the whole contract, are the only proper parties to a suit for specific performance, the generally accepted rule in this country “is that all persons who are interested in the enforcement of the contract must be, and all those directly and specifically interested in the subject-matter may be, joined as parties to the suit for a specific performance.”
Pomeroy, Spec. Perf. of Contr. 2d ed. pp. 546 et seq.; 36 Cyc. 767, 768; Pom. Eq. Jur. 3d ed. § 114; 20 R. C. L. pp. 684 et seq. In the instant action the plaintiff, Mrs. Boehm, had received a conveyance from Long before the petition in intervention was filed. The interests of the plaintiff and defendant were the same. They both sought to attain the same end, and by the express terms of their stipulation they recognized the intervener as their joint antagonist. We have no hesitancy in holding that Motsiff had “an interest in the matter in litigation” herein “against both” the plaintiff' and defendant, and that the
The correspondence and acts upon which the rights of the parties to this litigation are predicated have already been noted. We are entirely satisfied that the correspondence between Long and Cary upon which the plaintiff based her action for specific performance did not create any contract whatsoever. It is also clear that the conveyance which she obtained from Long is subject to all valid contract rights of the intervener, for when the plaintiff obtained the deed she had full knowledge of whatever rights the intervener had under his contract of purchase. Hence, the plaintiff obtained no greater rights as against the intervener than her grantor had. 36 Cyc. 761. See also § 7201, Comp. Laws 1913; Hunter v. Coe, 12 N. D. 505, 97 N. W. 869.
Appellants argue that the intervener has not established a contract of purchase. They say he has not shown the terms of payment, and that “it does not definitely appear what kind of notes and mortgage were contained in the proposition.” In our opinion the argument is devoid of merit. In his letter to Proudfoot of January 31, 1916, Long quoted a price of $2,800 for the land. Proudfoot testified that the terms of payment were definitely agreed upon between himself and Long; but leaving such testimony wholly on one side, the terms of the sale are clearly established by the documentary evidence in the case. In the letter written by the First National Mank of Mandan, dated February 11, 1916, Long was fully advised of the terms on which Proudfoot had sold the land to Motsiff. In that letter Long was informed that Motsiff had deposited $500 in cash, and executed notes aggregating $2,300. The notes and mortgage securing the same were forwarded to Long in the letter. He made no objection whatever to the terms of payment; his sole objection was to the suggestion in the letter that he (Long) would be required to pay for the revenue stamps to be attached to the deed and for the abstract of title. The papers were again returned to Long on February 26, 1916, and in the letter accompanying them he was informed that the items of costs to the payment of which he had objected would be paid by the purchaser. After examining the papers he requested that certain changes be made in the notes. The changes were made, and so far as the intervener is concerned he complied with every i-equest of Long. It is indeed difficult to understand how it can be
Appellants also contend that the First National Bank of Mandan was not authorized to accept payment from Motsiff. The contention is untenable. An agent has authority to do everything necessary or proper and useful in the ordinary course of business for effecting the purpose of his agency. Comp. Laws 1913, § 6340. When Long transmitted the deed to the bank, and specifically constituted it his agent to deliver it to Motsiff, both Long and the bank knew all about how the purchase price was to be paid. They both knew that the bank had received from Motsiff, and was then holding, for Long $500 in cash. Long forwarded to the bank the notes representing the balance of the purchase price, with the request that certain changes be made therein. He said: “Please see that both makers are present and approve the change. Kindly return the notes when corrected.” No other construction can reasonably be placed .upon the correspondence, in view of the circumstances, than that Long expected the bank to receive and transmit to him the purchase price agreed upon.
We believe the intervener had and has an enforceable contract. He has paid the full purchase price agreed upon in the manner and to the person to whom Long intended and required it to be paid. There was nothing further for the intervener to do. He had done every act which he could, or was required to do, in order to complete the contract on his part. He certainly was not to blame for the failure or refusal of the bank (Long’s agent) to deliver the deed. He was entitled to such delivery. If the deed had been delivered, and it and the mortgage recorded, such mortgage would have shown “on the abstract as the first lien on the land.” “A lien is a charge imposed upon specific property by which it is made security for the performance of an act.” Comp. Laws 1913, § 6699. When Long, in his letter to the bank, stated that the mortgage from Motsiff “must show on the abstract as the first lien on the land,” he doubtless had in mind that there might be other liens created by or existing against Motsiff, and it was such liens that he wanted to guard against. It would be unreasonable to suppose that he had in mind any liens or claims that might be claimed against himself. The notice of lis pendens filed by the plaintiff did not create any lien, nor did it have any effect upon the obligations of the defendant. A no
Affirmed. '