222 N.W. 667 | S.D. | 1928
This appeal is from a judgment and order overruling the motion of appellant Holmes for a new trial in an action wherein respondent Rogers was plaintiff, Standard Life Insurance Company was defendant, and appellant Holmes was intervener. For the purpose of trial in circuit court, this action was consolidated with another. In the other action, Holmes was plaintiff and Standard Life Insurance Company and Rogers were defendants. Separate judgments were rendered on the decision of the court, and no appeal has been taken in the action in which Holmes was plaintiff, nor is the insurance company in any way a party to this appeal.
The trial court found the facts substantially as follows: Respondent 'Rogers owned a quarter section of land in Gregory county. Respondent’s son owned an adjoining quarter section. On July 9, 1918, respondent and his son and their respective wives executed' and delivered to Commonwealth Life Insurance. Company their’ promissory note for $6,000, and to- secure said note they executed a mortgage on the two quarter sections. Default having been made in the conditions of the mortgage, it was foreclosed by advertisement at a sale held on July 21, 1923, and the mortgaged premises bid in by the mortgagee; the quarter section owned by respondent being bid in for $4,131.12, the quarter section owned by the son being bid in for $3,500, and the aggregate of these two sum's was the full amount claimed to be due under the mortgage, with costs and expenses at the time of sale. Although respondent was notified by the local attorney for the insurance company, prior to the commencement of the foreclosure proceedings, that the mortgage would-be foreclosed unless the conditions of the mortgage were complied with, the first actual notice respondent had that the time for redemption would expire on July 21, 1924, was on July 17, 1924. On July 18th, respondent went from his home in Lemars, Iowa, to the office of Commonwealth Life Insurance Company, in Omaha, and there discovered that its business and assets had been taken over by defendant Standard Life Insurance Company. One Nation, assistant to the president of the latter company, was looking after the business of both companies. Respondent informed Nation that
The court also found that, at all times since July 21, 1924, respondent has been ready, willing, and able to pay the full amount due for redemption, and all expenses incident to the manner of transfer agreed -upon; that respondent relied upon the statements made by Nation at 'Omaha; that Nation was authorized to make said statements; that respondent relied upon the statements made by the insurance company’s attorney, who- was authorized to enter into any arrangements he thought advisable for completing the transaction as outlined by Mr. Nation; that, because of such reliance, respondent failed to- redeem- from such foreclosure; and that, by reason of such statements and respondent’s reliance thereon, the company was estopped- to deny respondent’s right and -claim to the land.
It was adjudged in the first action that respondent was the equitable owner of said premises, that the insurance company held the legal title thereto in trust for respondent, subject to the requirement that respondent should make the payments therein provided for, -and that appellant was not a purchaser in good faith of the premises and had no interest therein. It is from this judgment and from the order denying appellant’s motion for a new trial that this appeal is taken. The judgment in the action in which appel
Appellant contends that the judgment in favor of respondent should' be reversed because there was no evidence of authority in the agent at Omaha, in the president at St. Louis, or in the attorney at Dallas to bind the company by their acts and representations, nor evidence that the board of directors, in which is vested the authority to deal with the property of a corporation, had any knowledge of or ratified the acts of these agents. As to this contention, we are of the opinion that the evidence introduced supports the findings of fact that the agent at Omaha and the attorney at Dallas were authorized by the president to do' all that each did to bind the company, and that there is at least a prima facie showing that the president had general charge of the company’s business. In reviewing the evidence, we disregard, as presumptively the trial court did, all incompetent evidence. Hipple v. Strohbehn, 44 S. D. 102, 182 N. W. 535; Relf v. Cameron, 51 S. D. 554, 215 N. W. 881. Upon this evidence, the trial court rightly concluded that the insurance company was bound by the acts of these corporate agents; for, after the showing made by respondent of the authority of those agents with which he dealt, if the company was not bound thereby, “certainly the burden was upon appellant to establish such fact.” Sweeny v. Underwriters Co., 29 S. D. 576, 137 N. W. 379; Lloyd & Co. v. Matthews, 223 Ill. 477, 79 N. E. 172, 7 L. R. A. (N. S.) 376, 114 Am. St. Rep. 346.
Appellant next contends that the agreement between respondent and the agents of the insurance company was, at best, simply a parol agreement to convey real estate, invalid under section 856, R. C. 1919.
Respondent claims that the agreement in question was not an agreement for the sale of real property, but an agreement to permit'
Section 856 is, in part, as follows:
“No agreement for * * * the sale of real property, or of an interest therein, is valid unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent thereunto authorized in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.”
That an oral contract for the sale of real property, if partly performed, may be specifically enforced has 'been declared by this court in Karlsson v. Odland, 46 S. D. 350, 192 N. W. 758, and cases therein cited. As stated in Pomeroy’s Eq. Jur. (4th Ed.) § 1409:
“The ground upon which the remedy in such cases rests is that of equitable fraud. It would be a virtual fraud for the defendant, after permitting the acts of part performance, to interpose the statute as a bar to the plaintiff’s remedial right. The acts of part performance, therefore, in order to satisfy this principle, must be done in pursuance of the contract, and must alter the relations of the parties.”
On the other hand, in Pomeroy’s Eq. Rem. (2d Ed.) § 824, it is stated that:
“It is the generally accepted doctrine that payment of the whole or a part of the purchase price is not sufficient in itself to take a case out of the operation of the statute of frauds.”
In this case, we have not only the delivery and acceptance of a draft for $7,469.30 and an understanding that, upon advice from the attorney as to the exact amount, the balance of $696, together with any additional expense of transfer, would be paid; but this thrice-bound agreement between the insurance company and respondent was made at a time when respondent not only might have redeemed, but also was ready, able, and fully intended to redeem unless the insurance company would make such a transfer. Relying on such understanding, respondent did not redeem'. During the