125 N.W. 1027 | N.D. | 1910
This is an action to foreclose a real estate mortgage. In April, 1903, the plaintiff was the owner of the land described in the complaint, and entered into a contract in writing with one Southerland, under which the land was to be farmed during the season of 1903. After the execution and delivery of the contract for the farming of said land, the plaintiff conveyed it to the defendant, and, to secure payment of a part of the purchase price, he executed a mortgáge upon the land to the plaintiff, and this action is brought to foreclose the mortgage given to secure the note representing the balance due upon the purchase price of the land.
It is in reference to the latter clause of the contract that there is any dispute or issue raised in this suit. Southerland did not plow back the 235 acres referred to in the contract. The plaintiff brought an action against him to recover the stipulated sum to be paid if such plowing was not done, and recovered judgment in said action. Southerland ‘paid the amount of said judgment to the plaintiff. It is the contention of the defendant that the collection of said money was wrongful, and that the same should have been paid to him by Southerland. It is the contention of the plaintiff that he was entitled to the money under said contract. The sole question, therefore, for our consideration, is whether the counterclaim, - amounting to $293.25 was correctly allowed by the trial court. The trial court found as a fact that it was agreed when the deed was given that Royer, the grantee therein, would be subrogated to the rights of Martin in respect to everything under the lease or contract for the cropping of the land in question. It is,
Whether the contract is technically a lease or a contract of employment, or one of adventure, we need not determine on this appeal. The result will be the same whatever that contract may technically be as a matter of law as to its general features. It is certain that the money due on the failure to do the plowing represented the compensation for the use of the plowed land for crop purposes. Rent is compensation for the use of land. It is immaterial whether it is to be paid in money or services. Whithed v. St. Anthony Ele. Co., 9 N. D. 224, 83 N. W. 238, 50 L. R. A. 254, 81 Am. St. Rep. 562; Wegner v. Lubenow, 12 N. D. 95, 95 N. W. 442. The plaintiff engaged with Southerland to have the land cropped during the year 1903, and for the use of the land was to receive a share of the crop. Some of the land was already plowed when the contract was made, and for the use of the plowed land Southerland bound himself to plow the same number of acres for the next year, or, at plaintiff’s. option, pay $1.25 per acre in money. The plowing, or a fixed sum in lieu thereof, was compensation for the use of the land, and went- with the land unless specially reserved or excepted. Whatever Southerland was — that is, whether a tenant, cropper, or employe — in a strict technical sense, it seems clear that he was to do the plowing as compensa
So far as this promise to plow is concerned, it was like a covenant to pay rent in a lease, and went with the land. In such a lease this court'has held that a covenant to leave land in like condition is a covenant in favor of the owner of the land, and passes with the title (Nor. Pac. Ry. Co. v. McClure, 9 N. D. 73, 81 N. W. 52, 47 L. R. A. 149), although that case pertained to a lease in its legal signification. What is there said, however, concerning rent, applies with great force to the question under consideration here.
That the right to the rent which is to accrue passes to the grantee of the land as an incident of the deed is sustained by the following authorities, and many others: 24 Cyc. p. 1172, and cases cited; Allan v. Hall, 66 Neb. 84, 92 N. W. 171; West Shore Mills Co. v. Edwards, 24 Or. 475, 33 Pac. 987; Pelton v. Place et al., 71 Vt. 430, 46 Atl. 63. Our conclusion upon this point is that the plaintiff wrongfully accepted this money, and that he should restore it to the defendant.
It is however, contended that the defendant has no right of recovery for this money from the plaintiff for the reason that Southerland is the party responsible therefor to the defendant, and that there is no privity of contract between the defendant and the plaintiff under the contract or otherwise. The defendant is not claiming this money as a party to the contract. He claims that the plaintiff wrongfully received money belonging to him, and that the plaintiff should pay it to him. It is a counterclaim for money liad and received, which in equity and good conscience the plaintiff should pay or allow as a credit upon the amount due upon the mortgage pleaded in the complaint. Under • section 4802, Rev. Codes 1905, the defendant acquired the same rights to this money by virtue of the deed, as the plaintiff had before the land was
That no privity of contract existed between the parties to this suit is immaterial under such circumstances, and it is immaterial that no promise was made by the plaintiff to pay the same. By accepting the money wrongfully which belonged to the defendant, and which did not belong to the plaintiff, the law will imply a promise to repay, and the person accepting the money wrongfully will not be heard to assert that no privity of contract exists. Having accepted the money, and failing to show any legal or equitable right thereto, the defendant can recover, though an express promise to repay it does not exist. The law presumes such a promise, however. The fact that an action might have been brought against Southerland, the cropper, is immaterial, conceding, for this purpose, that such an action would lie.
The following authorities sustain the principle that the absence of contractual relations or the absence of a promise to pay is immaterial in this class of actions: Ela v. Express Co., 29 Wis. 611, 9 Am. Rep. 619; Byxbie v. Wood, 24 N. Y. 607; Brand v. Williams, 29 Minn. 238, 13 N. W. 42; Wittmann v. Watry, 45 Wis. 495.
The cases cited by plaintiff are not in point, not being cases for the recovery of money had and received, which ought, in good conscience, to be paid to the one entitled thereto.
The trial court sustained the counterclaim and deducted the amount thereof from the sum due on the mortgage, and gave, costs to the plaintiff.
This judgment is affirmed.