153 N.W. 293 | N.D. | 1915
This action was brought to cancel a contract constituting a cloud on the title of the plaintiffs to a half section of land, viz., the north one half, sec. 11, twp. 138, range 106, in Golden Valley (formerly Billings) county, and to quiet title thereto in the plaintiffs. The case was tried to the court without a jury, and resulted in a judgment in favor of the plaintiffs, for the use and benefit of the plaintiff Andrew Schmidt, for a cancelation of the contract; $679.75 damages for the use and occupation of said premises; and also quieting the title to said lands in plaintiffs. Defendant appeals to this court, and demands a trial de novo.
The complaint herein contains not only the allegations required in a statutory action to quiet title, but sets forth the contract in full, and alleges that such contract was canceled and abrogated by the consent of the parties thereto, and that, after such cancelation, the defendant, for the purpose of encumbering ánd beclouding the title to the land and harassing the owners thereof, in defiance of the rights of such owners, and as part of a fraudulent scheme on the part of the defendant to procure the use of said lands, caused such contract to be recorded; that plaintiffs have been excluded from said lands since the spring of 1906 to the present time; and that the value of such use and occupation was $6,000. The plaintiffs pray for judgment that the contract be canceled and adjudged null and void; and the defendant required to surrender the samé to the plaintiffs; that title to the premises be quieted in plaintiffs, and that plaintiffs recover the-value of the use and occupation of the premises. The answer denies that the contract has been canceled or abrogated, and alleges that the same is in full force and effect; that the plaintiffs have no right to maintain the present action, for the reason that the plaintiff Golden Valley Land & Oattle Company heretofore elected to try and determine its alleged rights in and to said section of land by bringing and prosecuting to judgment two former actions for the recovery from the defendant of portions of said section of land, only, to wit, an action entitled, A. T. Christ et al., Plaintiffs v. John John-stone et al., Defendants, for the southwest quarter; and an action entitled, Samuel Bandall et al. v. John Johnstone et ah, for the southeast
The material facts in the case are as follows: On January 15, 1906, the defendant, John Johnstone, then a resident of Sioux Falls, South Dakota, through one Murphy, a soliciting agent for the plaintiff Golden Valley Land & Cattle Company, entered into the following preliminary contract with said Golden Valley Land & Cattle Company, for the purchase of the lands involved in this action and other lands, to wit:
This agreement made and entered into this 15th day of January, 1906, by and between Golden Valley Land & Cattle Company, of Kamsey county, Minnesota, party of the first part, and John Johnstone, of Minnehaha county, South Dakota, party of the second part.
Witnesseth: That the said party of the first part in consideration of the covenants and agreements of said party of the second part, hereinafter contained, agrees to sell and convey unto the said party of the second part or his assigns, by warranty deed, upon the prompt and full performance of said party of the second part of this agreement, the following described premises situate in the county of Billings, in the state of North Dakota, to wit:
All of section eleven (11), township one hundred and thirty-eight (138), range one hundred and six (106), containing six hundred and forty acres (640), more or less, according to the government survey thereof. And the said party of the second part in consideration of the premises hereby agrees to pay said party of the first part as and for the purchase price of said premises, the sum of eight thousand dollars ($8,— 000) on the following terms: The party of the second part agrees to convey by warranty deed free of encumbrance, the following property situated in the city of Sioux Falls, South Dakota:
Lot thirteen (13) block fifty-one (51), Gales sixth addition to the city of Sioux Falls; lot one (1), block six (6), Summit addition to the city of Sioux Falls:
Consideration forty-two hundred dollars ($4,200).
The party of the second part further agrees to deed his property to first party when first party delivers to second party contracts covering above described land as follows: One contract covering the E. half of section eleven (11), township one hundred thirty-eight' (138), range
Provided, however, that in case the party of the second part is unable to secure two or three homesteads in the immediate vicinity of the above described land, then and in that case the party of the second part is to have the privilege of selecting land of equal value similarly located containing the same number of acres, at the same price, or at such price as may be agreed upon by both parties to this agreement.
Party of the second part agrees to pay all taxes that may hereafter become due upon said premises. But should default be made in the payment of said several sums of money or any or either of them or any part thereof, or in the payment of interest or taxes or any part thereof, or in any of the covenants herein to be by said party of the second part kept or performed, then this agreement to be void, at the election of the said party of the first part, time being of the essence of this agreement.
It is hereby agreed that any moneys heretofore paid on this contract shall be treated as settled damages for breach thereof, and that under such default said party of the first part is to have possession of said premises. The conditions of this contract shall bind the heirs, executors, administrators, and assigns of each party hereto.
In witness whereof, said parties have hereunto respectively set their hands and seals the day and year first above written. Papers to be exchanged on or before April 1st, 1906.
Golden Valley Land & Cattle Company,
D. J. McMahon, Sec.
John Johnstone
Hance Murphy, Witness.
On the 7th day of June, 1907, the defendant, Johnstone, acknowledged the execution of the contract, and on June 8th, 1907, caused the same to be recorded in the office of the register of deeds of Billings county. It will be observed that the contract is almost identical in terms with that construed by this court in the case of Golden Valley Land &
In January, 1906, and for more than eight years prior thereto, the plaintiff Northwestern Improvement Company was the owner in fee simple of the land involved in this law suit; and on April 27, 1906, the Northwestern Improvement Company conveyed title by warranty deed to the plaintiff Missouri Slope Land & Investment Company. On May 5, 1909, The Missouri Slope Land & Investment Company conveyed title by warranty deed to the plaintiff Golden Valley Land & Cattle Company. On January 2, 1909, the Golden Valley Land & Cattle Company conveyed title by warranty deed to the plaintiff J. S. Brawford. On January 19, 1909, the plaintiff Brawford and his wife conveyed title by warranty deed to the plaintiff Stondall Land & Investment Company. On January 16, 1908, the Stondall Land & Investment Company entered into a contract with the plaintiff Andrew Schmidt, whereby they agreed to sell and conevy said land to him upon certain terms and conditions, which he has kept and performed. Under the terms of this contract, Schmidt is the equitable owner of the premises. On April 5, 1906, and prior thereto, the plaintiff Golden Valley Land & Cattle Company held a contract to purchase said premises; and on the 5th day of April, 1906, it sold the premises by a written contract to the said J. S. Brawford, and afterwards on December 2, 1907, J. S. Brawford sold the premises by written contract of sale to the said Stondall Land & Investment Company. So, as a matter of fact, the Golden Valley Land & Cattle Company parted with any title which it had on April 5, 1906, and the title which it subsequently held was merely in trust for its subsequent grantee. The only interest which the plaintiff asserts to these premises is under the
In the case of Christ v. Johnstone, Christ was the real party in interest, and brought an action to quiet title to the tract of land which he owned. Christ had no interest in any other portion of section 11, except the southwest quarter thereof. The same identical condition existed with reference to the action brought by Randall to quiet title to the southeast quarter. Neither Christ nor Randall was interested in the north half of section 11, but the equitable owner of this portion of the section was Andrew Schmidt, the use plaintiff in this action. At the time Johnstone filed his contract, the Golden Valley Land & Cattle Company had already conveyed its interest in the premises involved in this action by contract of purchase to Brawford, and it never subsequently obtained title except as a trustee for the equitable owner. When Johnstone recorded his contract he caused a cloud to be placed against the title of all four quarters embraced in the section, then owned by three different parties. The trial court found that Schmidt was not in any manner a party to either the Christ Case or the Randall Case, and this finding is clearly correct. It would certainly be a peculiar doctrine to hold that the rights of Schmidt to maintain an action to remove the cloud of the contract upon the title of his land is barred because Christ and Randall, at a prior time, have caused the titles to their own land to be quieted, as against the cloud placed thereon by the same wrongful act of the defendant. And we venture to say that it is almost unheard of for a defendant to come into a court of equity and urge that he has some rights by reason of his own wrongful conduct under a contract which has twice been adjudicated to be of no validity. We have no hesitancy in adhering to the doctrine laid down by this court in Randall v. Johnstone. The-same is not only sound from a legal standpoint, but is founded upon primary principles of justice and equity.
Before any proceedings were had in the action, defendant’s counsel asked that the legal issues be tried to a jury, although no specification was made of what the specific issues were. And one of the errors assigned on this appeal is that defendant was denied a trial by jury
It is not contended that the amount of damages assessed by the trial judge for the use and occupation of the premises is excessive; and we aré satisfied that the trial judge was eminently just and fair with the defendant in assessing such damages, and allowed the defendant credit for all the improvements made on the premises, for which defendant was entitled to credit.
This action was brought to cancel a contract, and to remove the clond caused by the recording thereof; also to quiet title to the premises in the plaintiff. This relief can be obtained only in equity, and the .action is clearly equitable. O’Neil v. Tyler, 3 N. D. 47, 53 N. W. 434; Hamilton v. Batlin, 8 Minn. 403, Gil. 359, 83 Am. Dec. 787; Angus v. Craven, 132 Cal. 691, 64 Pac. 1091; Beamer v. Werner, 86 C. C. A. 289, 159 Fed. 99; Post v. Campbell, 110 Wis. 378, 85 N. W. 1032. See also Gresens v. Martin, 27 N. D. 231, 145 N. W. 823. The mere fact that, as a result of the determination of the .equitable issues, plaintiffs may or do become entitled to a money judgment, does not necessarily change it into an action at law. Avery Mfg. Co. v. Crumb, 14 N. D. 57, 103 N. W. 410. The principal relief asked and awarded in this action was equitable. The damages for the use and occupation of the premises were merely incidental to and wholly dependent upon a determination of the equitable issues. It is well settled that a court of equity, having once obtained jurisdiction, will retain it, and do complete justice between the parties. Bidwell v. Aster Met. Ins. Co. 16 N. Y. 267; Pom. Eq. Jur. 3d ed. § 862; 16 Cyc. 106, 109. See also Beach, Eq. Jur. §§ 538, 727, 994, 996. In this case it would have been an idle ceremony to call a jury to determine the value of the use and occupation, as there is no substantial conflict
This action was originally commenced in the district court of Billings county, wherein the land was then situated, but subsequently to the commencement of the action, and after the same had been noticed for trial and placed upon the calendar for trial in the district court of Billings county, that county was divided at the general election held in November, 1912, and Golden Valley county created out of a portion thereof. The premises involved in this action were situated in that part of Billings county which became Golden Valley county. On January 14, 1913, the attorneys for the respective parties entered into a written stipulation for a transfer of said action from the district court of Billings county to the district court of Golden Valley county, and on the same day an order was duly entered by the district court pursuant to such stipulation, transferring said action and directing the clerk of the district court of Billings county to transmit all the pleadings, files, and papers therein to the clerk of the district court of Golden Valley county.
On the 15th day of July, 1913, defendant’s attorneys filed written objections to the trial of said action at that term on the following grounds: “1. That no notice of trial or note of issue in this action has been served or filed in the district court for said Golden Valley county. 2. That on the opening day of said July, 1913, term of said district court, this action was not at issue in said district court for Golden Valley county, wherefore upon the foregoing grounds defendant objects to said action being placed on the calendar and tried at said July, 1913, term.” The objections were overruled and the cause set for trial and tried on July 29th, 1913. The trial court’s ruling on this objection is also assigned as error. The correctness of this ruling seems too obvious to require any extended discussion. But see § 3230, Compiled Laws; 40 Cyc. 176, et seq.
All questions presented on this appeal have been considered; and it follows from what has been said that the judgment of the District Court must be affirmed. It is so ordered.