106 N.W. 38 | N.D. | 1905
This action involves the right of the title and possession of section 25, township 134, range 59, LaMoure county, N. D. The facts which control the decision of the case are the following: In the year 1882 James E. Wisner, one of the plaintiffs, was the owner of said section of land, and on August 26th of that year conveyed the same to J. O. Perkins, who gave him a purchase money mortgage for the balance due, amounting to $3,200. In October, 1883, this mortgage was assigned by Wisner to Mary C. Field, at the request of the defendant W. H. Field, her husband and agent, for the sum of $3,200 and accrued interest. The notes were indorsed by Wisner, and their payment guaranteed by him. On July 14, 1885, Perkins having failed to meet his payments, the mortgaged premises were sold under the foreclosure of the mortgage, and bid in by Wisner in Mrs. Field’s name, at Field’s request, for the full amount due on the notes. In December, 1886, a sheriff’s deed of said section 25 was issued and delivered to Mary C. Field, and she thereby became the absolute owner thereof by virtue of such foreclosure sale, unless Wisner became entitled to an equitable ownership or interest therein by virtue of transactions between him and W. H. Field, between the time of the foreclosure sale and the delivery of the sheriff’s deed to Mary C. Field. For many years, since 1882, James E. Wisner and W. H. Field were jointly interested in real estate transactions in North Dakota, and from that time until about 1900 Wisner was Field’s agent, caring for such real estate, and in making collections on sales thereof. They were friends, and their relations were intimate; each one having confidence in and trusting the other in their business dealings. The Fields resided in Port Chester, N. Y., and the Wisners in Lisbon, N. D. On July 27, 1885, Wisner wrote Field: “I inclose papers in J. O. Perkins mortgage. I attended the sale and made the bid in the interest of M. C. Field and paid all bills. * * * . Please send me a statement of the interest on the Perkins matter and I will send same. I would send the whole principal, but I have used perhaps $20,000 or more in R. R. matters which has provided a way for loose money. * * * I will make a clean deed to one or two sections of land, and you may give me a writ
In the first place it is perfectly apparent that Wisner retained no interest in the land when he sold to Perkins. His conveyance to Perkins was a warranty deed absolute in form. It is also true that Wisner retained no interest in the Perkins mortgage when he assigned it to Mrs. Field. The assignment was absolute in form, unaccompanied by oral or written conditions. It is true that Wisner guaranteed the payment of the note, and indorsed it, but the contention that the Perkins mortgage was assigned as security for the money advanced, being the face thereof with accrued interest, cannot be sustained. Field denies that there was such an agreement. The assignment papers are absolute in form. In the first proposition concerning the transfer, made in a letter to Field by Wisner on October 27, 1883, Wisner says: “I have a mortgage of $3,200 payable in five years from September, 1882, at 10 per cent. * * * This js perfect security, and I will guaranty the same, and let you have it for its face, $3,200 and accrued interest. * * * If any of your friends want a good investment, this is solid.” Field answered this letter, and unconditionally accepted the offer, and said that he would take the mortgage. Wisner then sent the note and mortgage to Field, who acknowledged receipt thereof and said: “Your letter inclosing the Perkins mortgage for $3,200 is at hand and in payment for which I inclose you draft on New York. * * * When you have any more such paper, I will try and find a place for it, if you wish to dispose of it.” 'We have no hesitation in concluding that Wisner assigned the mortgage absolutely, and not as security. The trial court so found, and the finding is amply sustained. In fact an opposite finding could not be sustained under the evidence. At the time the land was bid in by Wisner for Mrs. Field, Wisner had no equity or any interest whatsoever in the foreclosed premises. Starting with that proposition as undisputable, it remains to be determined whether he acquired any interest in that land subsequently. In- other words, what is the effect of the note of September 1, 1885, known in the record as “Exhibit O,” upon Wisner’s relation or right to this land when considered in connection with the prior and subsequent correspondence of the parties relating thereto? On the appellant’s part it is insisted that the sheriff’s deed is a mortgage. On respondents’ part it is claimed that Wisner was never entitled to
To determine what rights were granted to Wisner by the indorsement on Exhibit O, the prior, contemporaneous, and subsequent conduct and declarations of the parties become material as supplementing the indefinite and incomplete provisions of the memorandum. In Exhibit O are used the words “as collateral security.” Appellant contends that these words stamp the transaction as conclusively a mortgage or security transaction. The intention of the parties is not to be gathered alone from what the parties denominate a transaction or document. All communications between them will be scrutinized to determine the character of the transaction or conveyance and the intention of the parties. Heady v. Baxar B. & L. Ass’n (Tex. Civ. App.) 26 S. W. 468; Rogers v. James, 33 Ark. 77. Preliminary to the execution of Exhibit O Wisner had written the letter of July 27, 1885, to Field. This letter called for a statement of interest due on the Perkins mortgage. This mortgage had just been foreclosed and the land bid in by Wisner for Mrs. Field at Field’s request. Upon ascei-taining what the interest was Wisner paid it, and explained why he did not pay the whole amount of the mortgage. It is claimed that the payment of this interest gave Wisner an equitable interest in this land amounting to an equitable mortgage or lien. The evidence does not show that it was paid on the mortgage debt on the theory that he considered the $3,200 to have been advanced by Field as a loan. The letter of July 25th is not sufficient to stamp Exhibit O as a security transaction. The parties had not made any agreement that the sheriff’s certificate should be held by Mrs. Field as security or in trust for Wisner. It is true that at that time Field would have deeded this land to Wisner upon full payment of the $3,200 note and interest. This was not on the theory, however, of any obligation on his part to do so, but because he had use for the money in his business enterprises. He stated this in his letter acknowledging receipt of tlie interest on the Perkins mortgage and sending Exhibit O to Wisner. At
Construing Exhibit Q as granting Wisner the right to purchase the land for a price fixed by the sum total of the indebtedness represented by the $3,200 note, we find that the note has never been paid, and that Wisner subsequently relinquished all right to the land and wholly abandoned the contract. He paid the interest on the note to 1889, and thereafter made no further payments. On March 11, 1891, he wrote Field, among other things, as follows: Your title.is perfect to * * * section 25-134-59. If you can afford to deed to me the Jo Anderson land, 240 acres, all right. If not, it is all right. I will release all my rights in all these lands. It is the best I can do.” This letter is an express waiver of any claim under Exhibit O. He makes an appeal for reimbursement out of the 240-acre tract, but relinquishes all right to purchase section 25 in any event. Thereafter Wisner made no claim to the land, nor to rights under Exhibit O, until January 23, 1902, when
In view of these undisputed facts we are convinced that the following conclusions are sustained by the evidence: (1) That the assignment of the Perkins mortgage was absolute and without any reservation. (2) That Exhibit O was a. permission to Wisner to demand a deed upon payment of the indebtedness or purchase price represented by Exhibit O. (3) That the right to purchase section 25 upon payment of Exhibit O was expressly abandoned and waived by Wisner on March 11, 1891, and the contract thereafter wholly abandoned; and relying on such abandonment Field has disposed of some of the land to innocent purchasers. To compel a specific performance of the contract at this late day, or, if performance cannot be compelled, to assess damages, would be inequitable and unjust, and would be granting relief in a court of equity when the plaintiff has expressly waived all rights thereto. That a contract for the sale of real estate may be abandoned by the vendee by parol has been recently held by this court. Mahon v. Leech, 11 N. D. 181, 90 N. W. 807; Wadge v. Kittleson, 12 N. D. 452, 97 N. W. 856. In the first of these cases the authorities are collected, and they show that this principle of law is well sustained. These cases are therefore decisive of this case.
The rules of the Supreme Court provide that the court will make an order in regard to costs of planting the abstract when either party has caused unnecessary parts of the record to be printed.
The judgment of the district court is modified to that extent, and, as modified, is affirmed.