153 N.W. 442 | N.D. | 1915
Lead Opinion
The complaint is in the usual form of an action to quiet title, alleging plaintiffs to be the owners in fee of the 400 acres involved. The relief sought is confirmation of title in plaintiffs and possession, and $2,000 for use and occupancy, and general equitable relief. The answer claims title in defendant and demands a dismissal. A jury was used and a general verdict was found for plaintiffs. In addition thereto the court filed findings and conclusions. Judgment was rendered in the plaintiffs’ favor quieting title in them to the land, and awarding them judgment in the sum of $750 damages. Motion for new trial was made, based upon errors of law occurring at the trial and insufficiency of the evidence to justify the verdict and findings. Defendant appeals from both the judgment rendered and the order •denying a new trial.
In brief, the facts are that both parties to this action are real estate dealers operating at Minot, the plaintiffs through the Brush-McWilliams Company, managed by II. J. Halvorson. In April, 1912, Frank Havlieheck and wife owned the real estate the subject of this suit. On the 8th of that month they entered into a written agreement with Thornhill for the sale to him of the land and all the personal property thereon for a consideration of some $6,900 and the further transfer to them of an 80-acre tract in Illinois, and stipulating that the Illinois tract -should be examined by one Voitan, a son-in-law of Havlieheck, •and if found as stated the contract should be “binding and in full force and effect.” 'The contract provided as to the money considera
Soon after the execution of this preliminary agreement, Voitan inspected the 80-acre tract in Illinois, and on return made a favorable report to Havlicheck. Further papers were then executed. These consisted of a warranty deed by Bob Willets and F. O. Thornhill, as grantors, to Frank Havlicheck, as grantee, purporting to convey the Illinois 80-acre tract. On the same date, April 15, 1912, Havlicheck and wife executed to plaintiffs a bill of sale of the personal property on the farm and also their warranty deed to plaintiffs of the farm. These deeds and bill of sale, together with the preliminary agreement of purchase and sale, were placed by the Brush-McWilliams Company, acting as agent of the plaintiff, in the Second National Bank of Minot. The following written statement, agreed to by the parties, accompanied the deposit of said papers, viz.: “We herewith deliver to you to be held in escrow the following papers, to wit: (the preliminary agreement, bill of sale, and two warranty deeds above mentioned are here described). The above papers to be delivered to the parties who are entitled to same upon performance of the agreements set forth in the agreement dated April 8, 1912, first above mentioned.” (This has reference to the preliminary agreement of purchase and sale.) “In addition to the agreement first above described, it is agreed and understood that there is a $700 mortgage to the Second National Bank of Minot, North Dakota, dated April 3, 1912, due October 1st, 1912, drawing 12 per cent interest, made by Frank Havlicheck and Mary Havlicheck, which is to be paid by Havlicheck and released immediately.” No money was deposited or paid, other than the initial payment of $1, mentioned in the preliminary contract. Said contract contained no stipulation as to when the $3,000 in cash should be paid, nor did it contain any provision as to examination of abstracts of title that the parties therein contracted to furnish. Subsequent to the deposit of these papers in the bank, Thornhill procured title by deed on
In its instructions to tbe jury the court left as a fact for its determination tbe matter of whether tbe plaintiffs “have complied with all tbe conditions of tbe contract entered into between plaintiffs and Frank and Mary Ilavlicheck relating to tbe sale and purchase of tbe real estate in question.” It then instructed tbat, “if you find tbat plaintiffs have complied with all tbe conditions of tbe contract between plaintiffs and Frank and Mary Ilavlicheck, and further find tbat defendant at tbe time be received tbe deed from Frank and Mary Ilavlicheck did know of the making of tbe contract between Frank and Mary Ilavlicheck and tbe plaintiffs, or bad notice thereof sufficient to place a prudent man upon inquiry, and before tbe payment by defendant of tbe $3,900, then your verdict must be for tbe plaintiff.” Tbe right of recovery was made to depend upon whether defendant bad notice of tbe escrow arrangement. As tbe jury found for tbe plaintiffs, it must be assumed for tbe purposes of tbis decision tbat defendant bad notice of such deposit and bought subject to tbe rights of plaintiffs thereunder.
Defendant strenuously insists, first, tbat plaintiffs must recover upon tbe strength of their own title, and not upon tbe weakness of tbat of their adversary, and, second, tbat in order to recover as owners or at all, they must establish tbat title vested in them by a valid delivery of tbe Havlichecks’ deeds deposited in escrow; and defendant asserts tbat a valid delivery has never been had, inasmuch as a full performance on tbe part of tbe plaintiffs of tbe escrow agreement has not only not been shown, but tbat tbe evidence conclusively establishes nonperformance of tbat agreement in tbat delivery of tbe Havlicheck deed to tbe plaintiffs, as made by tbe depositary, was unauthorized and void, and did not and could not clothe plaintiffs with title; and tbat therefore plaintiffs have no title and cannot maintain tbis action. To quote from tbe brief of appellant: “At tbe time of tbe deposit on April 17,. 1912, tbe plaintiffs bad three things to do, namely, pay
Neither the agreement of sale nor the memorandum of the escrow agreement clothes the depositary, the bank, with the power to make a new agreement with either party to the escrow arrangement, such as was in fact made when the bank elected to receive, instead of cash, a chose in action. It is true it asserts that it received this as cash, and would pay the cash on it, a matter wholly immaterial inasmuch as no act of its was called for under the contract; nor could it thus supplement and so perform the agreements covenanted to be done by plaintiffs. Assume that the depositing of the papers with the bank would be held as an authorization of the deposit of the money at that place in lieu of the papers delivered, still the fact remains that a check for $3,000 is not $3,000 in cash, nor. does it demonstrate that plaintiffs could comply with their agreement and pay $3,000 cash. In the law governing performance of escrow agreements, there is no doctrine of
It appears conclusively that plaintiffs cannot recover relief in this form of action, and upon the theory upon which the same has been tried, the record establishing that no title can ever be shown in plaintiffs, and without which as a basis plaintiffs cannot recover. This appellate court is confronted with the fact that this action, though in equity, is here on appeal taken as in a law case. It is therefore limited to a review of errors of law, instead of empowered to try the issues de novo. Peckham v. Van Bergen, 8 N. D. 595, 80 N. W. 759; Merritt v. Adams County Invest. Co. 29 N. D. 496, 151 N. W. 11. The theory upon which the trial and appeal have been had has been adopted, and accordingly judgment will be directed as in an action at law, where the right of the plaintiff to ever recover is by the proof conclusively negatived. It is therefore ordered that the judgment, verdict, findings, and conclusions entered, be set aside and vacated, and a judgment be entered dismissing this action, but without prejudice, however, to plaintiffs’ right to maintain another action to enforce any right which they may have had under the contracts.
Dissenting Opinion
(dissenting). I cannot agree to the legal principles announced by my associates in this case. This action was brought to determine adverse claims under the provisions of chapter 31 (§§' 8144-8165) of the Code of Civil Procedure of the Compiled Laws of 1913. The complaint is drawn in strict conformity with the form provided by § 8147, Compiled Laws, and the prayer for judgment demanded involves all six of the grounds provided for in the prayer for judgment in this section. The complaint alleged that the plaintiff was the owner of the premises, and in the fifth subdivision of the prayer for judgment asked for $2,000 damages for the use and occupancy of the premises. The defendant in his answer, after denying the allegations of the plaintiff’s complaint, further alleged “that he is the owner in fee of the real estate described in the complaint,
One of the propositions which is most earnestly contended for by appellant in this case is that the plaintiffs had mistaken their remedy, and that their proper remedy would be to bring an action for specific performance. It seems to me that this reasoning is fallacious and entirely contrary to the provisions of the statute under which the action was brought. One of the principal objects intended to be accomplished by this form of action was to avoid a multiplicity of suits, and make it possible to have the estates and interests of the various persons claiming adversely to one another adjudicated and determined in one action. In such action the court may decree that plaintiff do equity by paying whatever sum is necessary, before granting equitable relief. Powers v. First Nat. Bank, 15 N. D. 466, 471, 109 N. W. 361. Judgment may be entered reforming deed, and foreclosing same as a mortgage. Murphy v. Plankinton Bank, 18 S. D. 317, 100 N. W. 614. The very purpose of the action, as defined by the legislature, is to determine adverse claims. The defendant has interposed a counterclaim, — alleging that he is the owner and that the plaintiffs have no interest in the premises. Defendant asked that a jury be called, and certain issues of fact tried to the jury. Can he now be permitted to say that because this favor was granted that the action
Prior to the escrow agreement, the plaintiffs and the Havlichecks entered into executory .contract whereby the Havlichecks agreed to convey the premises involved to the plaintiffs. “While there is a diversity of judicial opinion as to the relations existing between the parties to such a contract, the great weight of authority is to the effect that upon the execution of the contract the purchaser becomes the beneficial owner in equity, and the vendor retains the legal title in trust for such vendee.” Woodward v. McCollum, 16 N. D. 42, 49, 111 N. W. 623. “Equity treats things agreed to be done as actually performed, and where real estate is sold under a valid contract, and the deed executed and placed in escrow, to be delivered at a future date on payment of the purchase money, evidenced by promissory note-due on said day, the equitable title passes at once to the vendee.” Fouts v. Foundray, 31 Okla. 221, 38 L.R.A.(N.S.) 251, 120 Pac. 960, Ann. Cas. 1913E, 301. This executory contract remained unaffected by the escrow agreement. Even though the delivery of the deed be held void, still the plaintiffs are the equitable owners of the premises, and the defendant, Olson, having purchased with notice, merely holds the legal title in trust for the plaintiffs. Plaintiffs’ equitable title has been held sufficient to sustain their position in this action. Mitchell v. Black Eagle Min. Co. 26 S. D. 260, 267, 128 N. W. 159, Ann. Cas. 1913B, 85; Collins v. O’Laverty, 136 Cal. 31, 35, 68 Pac. 327. But even though plaintiff’s title was insufficient, still under the issues tendered by defendant’s answer claiming
Nor do I agree that the failure on the part of the plaintiffs to pay $3,000 in currency is such departure from the terms of the .escrow agreement as will avoid the delivery of the deed to the plaintiffs. In the usual course of commercial transactions, actual currency is seldom used, and even in cases where a tender or deposit is required to be made in currency, it may be done by check unless specific objection is made thereto. Comp. Laws, § 5816; North Dakota Horse & Cattle Co. v. Serumgard, 17 N. D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N. W. 453; Ugland v. Farmers’ State Bank, 23 N. D. 536, 137 N. W. 572. It is true that it is a rule of law that where an instrument is deposited as an escrow, it cannot be operative until the conditions’or the event stipulated upon is performed or has happened. But in applying this rule, it should be borne in mind that it was laid down nearly four centuries ago, and that while it has been adhered to since that time, and remains a correct statement of an abstract principle of law, still the conditions under which it was formulated no longer exist, and it should be construed in accord with the conditions of to-day. “When the reason of a rule ceases, so should th'e rule itself.” “The law respects form less than substance.” These are among the maxims of our jurisprudence.’ In the days when this rule was formulated, a payment meant payment in money. To-day, in commercial transactions the actual currency, is rarely used, and, as indicated by this court in the two decisions cited above, a check drawn upon a solvent bank, where the drawer has ample funds on deposit so it will be paid on presentation, is for every purpose as good as cash.
Havlicheck never called for the money. If he had it would have been paid to him, and the papers delivered to him. In what manner was he prejudiced ? If he had gone to the depositary, he would have received exactly what he claims to be entitled to receive under the escrow agreement. It appears that no objection was made to the fact that the payment was. made by check, and in view of the fact that the bank accepted the check and treated it as cash, and stood willing and ready to pay to Havlicheck the full amount thereof in cash at any time he called for it, it seems to me to be indeed a highly technical
In this case the depositary was a responsible financial institution. And there can be absolutely no question but that Havlicheek could have had his $3,000 in cash any time he might have asked for it.
The assistant cashier of the bank testified as follows:
This check was presented to us by Willets & Thornhill for the purpose of complying with this agreement.
Q. And it was received by you as such ?
A. We would have paid the money at any time.
Q. Mr. Byorum, after the receiving of this check, “exhibit 1,” by you, were you ready at all times, was the bank ready at all times, to turn over the amount to the parties entitled thereto .under the contract ?
A. It was.
Q. And did you receive that check as cash ?
A. We received it the same as cash.
Q. Beady to pay the cash any time it was demanded?
A. Yes, any time it was demanded.
The trial court and jury found that the defendant took title with full knowledge of the rights of the plaintiffs, and that the plaintiffs had performed their part of the escrow agreement, and it seems to me that this holding is correct; but even though it is not, this case should