82 N.W. 743 | N.D. | 1900
This action is brought to obtain a specific performance of a written contract made between the parties to this action, dated October 28, 1892, whereby the defendants, in consideration of an agreed purchase price of $2,700, payable in five annual in
It will be convenient, in disposing of the case in this court, to set out a portion of the findings made and filed by the trial court as a foundation for the judgment entered in that court: “(1) On the 28th day of October, 1892, and for some time prior thereto, the defendants, M. V. Linwell and Charles Gustafson, were seized and possessed of the land in suit. (2) On the 28th day of October, 1892, the defendants contracted to sell the said lands to the plaintiffs, which contract was evidenced by a written instrument, marked Exhibit 1, as follows: (Here the written contract is set out in the findings at length, but, as the substance of the contract has already been stated in general terms, we deem it unnecessary to
There are other allegations of fact in the complaint as to which considerable testimony was offered at the trial, and concerning which counsel have contended more or less in this court in their briefs and oral arguments, but we shall not have occasion to further allude to such other allegations and matters of fact in this opinion; for the reason that, in the view taken of the entire case by this court, as presented by the record, the facts found' by the trial court, as above set out, are decisive of the result in this court, if such facts are supported by the evidence, and, in our judgment, the facts found below are supported by a decided preponderance of the evidence in this record.
It is needless to say that if these transfers were actually and voluntarily made by the plaintiffs, respectively, and were not made under a mistake of fact, and were not fraudulently obtained, the plaintiffs have no standing in court upon which they can ask for a decree of a court of equity for a specific performance of the contract in question. Even if the land had been fully paid for, the plaintiffs, after an assignment of all their interest to the defendants, would not be in a position to demand a deed of the land from the defendants, or to ask title at the hands of a court. We have carefully read and considered the evidence, and have weighed the arguments of counsel bearing upon the bona fides and legality of the two transfers, and we are convinced by such evidence that such 'transfers were intentionally made, and made with a deliberate purpose on plaintiffs’ part of disposing of all their rights and interest derived through or under the contract in suit. It is unnecessary, in our judgment, to array all the evidence bearing upon this question. Without enumerating further details, the evidence shows to our satisfaction that no payments were made upon the purchase contract by either of the plaintiffs after the year 1896, and that on December 23d of the year 1897 there was a balance due on the contract of $2,208, which balance we are justified in saying, upon this record, has never been paid, in whole or in part. True, the plaintiffs’ counsel contend that other moneys paid to liquidate other debts of the plaintiffs should be applied as payments upon the land contract, but it is our judgment that the evidence does not sustain this contention, but does sustain the finding of the trial court as to the amount still unpaid upon the purchase money.
August Magnusson admits that he signed the instrument of transfer, whereby he purported to quitclaim all of his interest under the land contract to these defendants on December 23, 1897. True, he claims that he did not understand the purport and effect of the instrument of transfer which he signed, but, in our opinion, this contention is overborne by the evidence of several witnesses who were present, and who testify that the quitclaim was signed deliverately by August after its nature and contents were clearly made known to him in his own language. Nor is the claim made that any special inducements were offered or any fraudulent representations made by the defendants to induce August Magnusson to quitclaim to the defendants. The contention seems to be that the quitclaim was signed, so to speak, automatically, and in blind obedi
Counsel contend that the alleged transfers of property, real and personal, from Sven to August, never were made in law or in fact. They claim that the evidence shows that said instruments of transfer were never signed at all by Sven, and that both were in fact signed by August, and that August affixed the name of Sven Magnusson to the instruments at a time when Sven was in a state of semi-consciousness, and that, so far as Sven knew what was being done at the time, he supposed that his name was being signed to his last will and testament, and that all parties present, including August and the witnesses subscribing, were of that opinion also. There is much conflict in the testimony as to whether Sven did or did not knowingly sign the instruments of transfer, and whether, even if he did, he was conscious at the time; but we deem the matter to be unimportant, in view of the subsequent attitude which the evidence shows was assumed by Sven Magnusson, for a period of over two years, with reference to such alleged transfers. The evidence leaves no room for doubt that Sven well knew that the instruments of transfer had been made in his behalf, and delivered to the defendants, and that defendants were acting in good faith, upon the assumption that the instruments of transfer evidenced a bona fide transfer of the property by himself to August Magnusson. It is certain, too, that August, in December, 1897, by formal instruments of transfer, assigned what purported to be a transfer of all his property referred to. The evidence of such transfer is in writing, and there is no pretense that either the defendants or August Magnusson mentioned, the name of Sven pending the negotiations for the transfer of the property to defendants, or that either side to the transaction ever suggested at that time that the assent or signature of Sven was necessary to transfer the property to the defendants. For the best of reasons, both parties to the transfer made in December, 1897, ignored the existence of Sven Magnusson. His own repeated assertions, independent of any other