155 N.W. 671 | N.D. | 1915
This action is in equity to compel a reconveyance of exchanged real estate and for damages. Issue was joined and a trial had, wherein, after submission of his proof, plaintiff rested. Thereupon both causes of action were separately dismissed on motion of defendants, the court ruling orally that two persons, viz., plaintiff’s wife, Teressa Willbur, and his mother-in-law, Anna B. Cummings, both of Avhom had testified in plaintiff’s behalf and were present in court, were necessary parties to the action. Plaintiff then asked td' reopen the case for the purpose of naming them as additional parties, “and for the purpose of introducing evidence to show that the plaintiff and his wife are ready, willing, and able to return to the defendants a deed to the
Respondents contend that the appellant is estopped from urging error, because “the court, acting on the request and motion of the appellant, granted leave to amend the pleadings on plaintiff’s behalf against the objections of the defendants, and the plaintiff acquiesced in the order, and consented to the continuance of the case in order to so plead. The plaintiff did not specifically acquiesce, but not taking objections to the question waived all rights to such objection, and by his acts in the matter showed that he desired the continuance of the action, and in order to comply with the order of the court, made at plaintiff’s request, it was necessary to continue the action. That such order and continuance were made for the benefit of the plaintiff and at his request, and that plaintiff could not be aggrieved thereby.” The first question presented, then, is whether plaintiff can review the propriety of the order imposing terms.
The record discloses that plaintiff’s request to be permitted to make these persons additional parties was only done because the court had ruled that if they were not made parties the action would be summarily dismissed. In fact, the court had already orally ordered it dismissed before the motion was made, and in making the motion the plaintiff treated the case as dismissed, and asked a vacation of the order of dismissal. But the action was still pending and not dismissed, in the ■ absence of a proper written order of dismissal filed or entered. But taking his cue from the court, and to avoid dismissal, plaintiff made the request, but with the understanding and intent on his part to immediately proceed with the trial, and that there should be no delay in the
But has appellant by subsequent proceedings, by acquiescence in the order, by attempting to comply with it, precluded himself from challenging it and the prior proceedings in the trial? It is to be noticed that the order is an interlocutory one, and is in no sense a judgment. In accepting the benefit of the extension of time granted at his request, he was not accepting1 benefits under a judgment. But in fact he1 was accepting no benefits, as he was obtaining none. Nor was his. adversary parting with any advantage. Had the tables been turned, and plaintiff been in the position of the defendants, and the terms had been paid him, he would have been accepting benefits, which acceptance would have estopped him to question the regularity and validity of the prior proceedings under which the benefit was derived. Boyle v. Boyle, 19 N. D. 522, 126 N. W. 229. But merely temporary acquiescence in the order to the extent of making an endeavor to comply with its terms,
This order cannot be sustained unless the persons ordered to be brought into the action were necessary, as distinguished from proper, parties to the suit. They could have been made parties, either plaintiff or defendant. It must also be conceded that plaintiff was the real party in interest, both under the contract of sale made by him to defendants and the transfer thereunder, and in and to the property transferred by him. That one of the quarters of land stood in the name of Cummings did not authorize her to sue or claim benefits under said contract between these contracting parties. Defendants are not in position to assert that she has any interest in said land, because she has parted therewith, delivering title thereto to defendants in pursuance of plaintiff’s contract of sale with them. They dealt with plaintiff, and received the deed as an assignment of rights in the land from, by, and under the contract, although clothed with that right hy deed direct from the third party to them. They are grantees of plaintiff as assignees of his rights under his contract with the third party, and they must claim and possess any rights they have under that assignment, and cannot be heard to claim adversely thereto. It would be unheard of to permit them to retain title to this land, received as the fruits of the contract with plaintiff, and still assert that, inasmuch as the premises came to them by grant from another, that the plaintiff could not rescind and compel reconveyance by them to him of whatever interest they are vested with, without the third party, a mere nominal party to the transaction, being, made a party to the suit.
That plaintiff is the real party in interest must be conceded under the proof disclosing him to be the equitable owner of the land sold under his contract with defendants. Our statutes require suit to be prosecuted in the name of the real party in interest. Section 1395, Comp. Laws 1913. That the holder of the equitable title is the real party in interest within the meaning of the statute, see Gruber v. Baker, 20 Nev. 453, 9 L.R.A. 302, 23 Pac. 858, a very similar case, and note in 64 L.R.A.
But there is another reason negativing the necessity of the joinder of Cummings. She was present and testified to having heard Johnson consummate the deal trading her land as his own for this Tennessee property, and to her having deeded her land to defendants “for the purpose of carrying out this trade with Johnson.” That she was present when the “deal was closed up, when the deeds were delivered;” that she knew “that her land was being traded in by Johnson as a part of the deal and delivered her deed to carry out that trade.” Before entry of judgment on the motion, the trial court had before it her verified disclaimer of interest, wherein she recited that “affiant does not and has not since the execution of said deed claimed any interest in said land that will not be fully protected by a judgment as prayed for by the plaintiff, and that her claim in this matter is for the balance of the purchase price against the plaintiff, but she has no interest in the subject-matter of this action.” To this extent she has undertaken to control the plaintiff’s case, and waived her rights, if any she had, to be made a party thereto, and estopped herself to claim the contrary, or assert rights antagonistic to any judgment that might have been rendered, as she will be bound by it as effectually as though she was a party to the action. This is the settled law of this jurisdiction. Boyd v. Wallace, 10 N. D. 78, 84 N. W. 760, quoted and applied in Hart v. Wyndmere, 21 N. D. 383, at page 398, 131 N. W. 271, Ann. Cas. 1913D, 169. She was bound as effectually as though she was a party, so far as the defendants were concerned, and this judgment of dismissal binds her as it does the plaintiff.
As to Teressa Willbur, wife of plaintiff, she would probably be es-topped as effectually as A. B. Cummings, although possibly a question might arise as to her right to orally assign or otherwise waive her right of dower in the Tennessee land, under the statute of frauds. See discussion of the effect of the statute of frauds on assignment of dower, in Smith on the Law of Fraud, §§ 366, 367, citing much authority; Stitt v. Smith, 13 L.R.A.(N.S.) 723, and note (102 Minn. 253, 113 N. W. 632.) But her dower right may be conceded as neither waived
What has been said has been upon the assumption that a court of equity will not treat the failure of the defendants to raise the nonjoinder of these two persons as parties by demurrer or answer under the provisions of §§ 7442 — 7447. These statutes require the matter to be raised by demurrer if the defect of parties appears on the face of the complaint, and if not, to be taken by answer, and if not raised either by demurrer or answer, “the defendant shall be deemed to have waived the same.” The objection was waived under the terms of the statute and a line of decisions in this state construing it. State ex rel. Viking Twp. v. Mikkelson, 24 N. D. 175, 139 N. W. 525; Van Gordon v. Goldamer, 16 N. D. 323, 113 N. W. 609; Clements v. Miller, 13 N. D. 176, 100 N. W. 239; Olson v. Shirley, 12 N. D. 106, 96 N. W. 297; Ross v. Page, 11 N. D. 458, 92 N. W. 822; James River Nat. Bank v. Purchase, 9 N. D. 280, 83 N. W. 7.
Under no sufficient hypothesis can the order and judgment be sustained. The court should either have made findings and conclusions and entered judgment, or retained the case for further proceedings on trial. As the cause of action for damages depended upon the establish