134 N.W. 712 | N.D. | 1912
This is an action to quiet title to a quarter section of real property in Steele county, as against a certain judgment held by de-' fendant against one Henry J. Torkelson and claimed by the former to be a valid lien on such property. At the time such judgment was docketed and a transcript thereof filed in Steele county, Torkelson held an assignment of a certain executory contract for the sale and purchase of such premises theretofore entered into between the Dwight Farm and Land Company and one Amund Berg, by the terms of which the Land Company agreed to sell and Berg agreed to purchase such property. Subsequently Torkelson assigned his rights under such contract to one Taisey, who later and before the commencement of this action sold and assigned his interest to plaintiff. The above facts are •substantially set forth in the answer, and defendant prays that such judgment be adjudged to be a lien on said land superior to plaintiff’s rights therein. Plaintiff demurred to such answer on the ground that it fails to allege facts sufficient to constitute a defense, which demurrer was sustained in the court below and defendant electing to stand on his answer, judgment was entered in plaintiff’s favor. The appeal is from the order sustaining the demurrer. While perhaps not very material, it is proper to state that such answer nowhere alleges that any payments were ever made under such contract for deed by either Torkelson or his assignor, Berg, nor that either of them ever performed any of the stipulations in such contract to be kept and performed by the vendee thereunder. Neither does such answer allege any fact showing or tending to show that the land company surrendered possession of such land to its vendee, Berg, or that such contract entitled him or his assignee or successor in interest to the possession prior to full payment of the purchase price. Nor does the answer disclose that such contract was ever recorded.
The sole question presented for our determination on this appeal
“The main reliance of the respondents in support of the demurrer is that there was no rescission of the contract. It is contended that the plaintiff became vested with an equitable interest or ownership in the land upon the execution of the contract, and that there could be no complete rescission until he had conveyed such 'interest back to the defendants. Equity does so regard the effect of such contracts. Under certain circumstances the vendor becomes the trustee of the title for the
Counsel assert that tbe supreme court of our sister state, South Dakota, in Brooke v. Eastman, 17 S. D. 339, 96 N. W. 699, squarely held in support of their contention, but in tbis they are clearly mistaken. That case merely announces tbe unquestioned rule that equitable interests or estates in property may be reached under execution and subjected to tbe payment of a judgment through a judicial sale,, and sucb is tbe effect of tbe holdings in tbe other cases cited, with tbe exception of those decided in jurisdictions having statutes differing from tbe statute in tbis state. It would serve no good purpose to review tbe authorities in detail, and we shall not do so. Suffice it to say that we deem it entirely clear that tbe defendant, by tbe mere docketing of tbe judgment, acquired no lien on Torkelson’s equitable interest in sucb real estate. If be desired to reach sucb equitable interest be should have levied thereon-under an execution. Section 7082, Rev. Codes, above mentioned, has no application to mere equitable interests in real property, but it confers and was intended to confer a lien only on tbe legal title held by tbe judgment debtor.
In addition to the case of Miller v. Shelburn, supra, see in support of our views, 17 Am. & Eng. Enc. Law, 778, 23 Cyc. 1370, and cases cited in note 17; Nessler v. Neher, 18 Neb. 649, 26 N. W. 471, and cases cited; Davis v. Williams, 130 Ala. 530, 54 L.R.A. 749, 89 Am. St. Rep. 55, 30 So. 488; Smith v. Ingles, 2 Or. 43; Bloomfield v. Humason, 11 Or. 229, 4 Pac. 332. Tbe Oregon statute relating to tbe
The order appealed from is accordingly affirmed.