117 N.W. 527 | N.D. | 1908
This is a claim and delivery action. The complaint is in the usual form, describing certain notes and chattel mortgages given by the defendant to a bank in Cavalier county, and by it transferred to the plaintiff herein. Plaintiff seeks possession of the security described in the mortgages for the purpose of foreclosure. He contends that default has been made in the payment of the debt originally secured by the mortgages, and‘that by an agreement with the defendant he was to hold them as security for additional sums of $97.95 and $51.05. The facts in the case are the same as those considered in Block v. Donovan, 13 N. D. 1, 99 N. W. 72, and no further reference thereto is necessary, except to say that Donovan purchased a farm of Block, against which there were apparent incumbrances amounting to $1,597.95. The value of the farm was assumed to be $1,500, and Donovan was to take care of the incumbrances up to that amount. He contends and contended in the case above referred to, that he was to take up none of the indebtedness until Block paid him the sum of $97.95, and that, in addition to the amount stated in the notes, he is entitled to foreclose the mortgages, and from the proceeds be repaid the sum of $149, evidenced by the two items referred to: The case was tried to a jury. The defendant submitted no evidence. Both parties moved for directed verdicts, but the court submitted the issues of fact to the jury which found for Block.
'In a former opinion in this case we held that the court should have directed a verdict for the plaintiff, but our attention had not been called to certain portions of the issues and decision in Block v. Donovan, supra. We were, however, pointed to that part of the decis
As to the notes secured, this action was prematurely brought. At the time it was commenced Donovan was holding title to the land in question, and, as it appears, was attempting to enforce collection, in this proceeding, of the very notes which he had agreed to take up and deliver to Block as a part of the consideration for the land. He could not do both, and could not maintain this action while holding title to the land.
'The conclusion we have arrived at in no way conflicts with what was said in Block v. Donovan of Donovan’s right to payment of the notes taken over by him while holding title to the land. The items aggregating $149 having been adjudicated in the other suit, and this action • having been prematurely brought, we find nothing to litigate, and the judgment of the trial court must be affirmed.