111 N.W. 623 | N.D. | 1907
This appeal is from a judgment rendered by the district court of Morton county awarding specific performance of a certain contract for the sale of real property. The judgment was in favor of the plaintiff, Charles A. Woodward, and the defendant, Emmett S. McCollum, appealed and asks a trial de novo of the entire case in this court.
The complaint alleges ownership of the property in question in plaintiff prior to and at the date of the contract for deed, September 9, 1902, which property consisted of 640 acres, being section 33, township 140, range 84, in Morton county, upon which were situated certain buildings, including a large barn. It also alleges that under the terms of the contract defendant, McCollum, agreed to purchase said property and pay therefor the sum of $10 per acre, $1,000 to be paid at the date of contract, and the balance on or before November 15th thereafter. The vendor agreed on the final payment of the purchase price to convey such land to defendant free from any incumbrance by a good and sufficient warranty deed, and he also agreed to furnish the defendant an abstract of title showing the same to be free from incumbrance. The contract was executed on the part of plaintiff as party of the first .part by one John- Bloodgood, who is referred to in the contract as “John Bloodgood, agent,” and the same is signed in the same manner, without disclosing his principal, and also by defendant. However, this fact is not deemed material as plaintiff afterwards fully ratified such contract, and defendant does not question the validity thereof. ' It is alleged that defendant went into possession of the land under such contract, but subsequently abandoned the same and repudiated all ownership therein. Then follow allegations as to plaintiff’s tender to defendant on November 15th and at divers subsequent dates of a good and sufficient warranty deed conveying the land to him, together with
Appellant contends that plaintiff has failed to bring himself within this rule and hence cannot recover. What are the facts? Appellant concedes in his printed brief that on November 17, 1887, one Chauncey B. Woodworth had good title to all the land; that on April 13, 1888, he conveyed by warranty deed an undivided one-fourth
It is next urged that one deed in the chain of title runs to Chauncey C., Frank E., and Henry Woodworth, without giving the surnames of the first two grantees; and it-is contended that such description is insufficient to transfer any -title to Chauncey
The deed from Frank E. and Henry S. Woodworth to plaintiff was signed by Henry as “Harry,” and' appellant insists that such instrument was insufficient to convey Henry’s title to plaintiff. We must 'Overrule-this contention. Harry is a corruption of the name “Henry,” in universal use; not only this, but all the circumstances show that the same person was intended. The contract for deed from Henry to plaintiff recites party of the first part as “Henry,” although the signature is “Harry” and the certificate of the notary shows the identity of the person; not only this, but the other owners join in the same instrument. Taking these circumstances into consideration, we have no hesitancy in holding that the instrument thus signed was sufficient to transfer Henry’s interest.
Furthermore, and to our mind a conclusive answer to .this point, such objection was not urged until after this action was brought, although the abstracts of title were critically examined by defendant and certain other alleged defects in plaintiff’s titlé pointed out. This is true in regard to the other alleged defects, and for this reason alone appellant cannot now be heard to urge them as a reason for refusing to comply with this contract, as all of such defects could have easily been cured by respondent if appelllant had based his objections thereon. Wold v. Newgard (Iowa) 94 N. W. 859. It was respondent’s duty to point out the defects relied upon.
One other objection urged by appellant to the sufficiency of plaintiff’s title remains to be noticed. The mortgage executed by Samuel H. Woodworth to Chauncey B. Woodworth on April 13, 1888, Was never satisfied upon the records, and it is contended that the same constitutes a cloud upon the title. At the time this mortgage was given the mortgagee conveyed to the mortgagor a one-fourth interest in the land. Subsequently, and on November 9, 1903, the mortgagor reconveyed such interest to the mortgagee, presumably in satisfaction of the mortgage, and the deed of conveyance contained a stipulation that the mortgage should not merge in the'
Thayer v. McGee, 20 Mich. 195; Mason v. Beach, 13 N. W. 884, 55 Wis. 607; Conner v. Whitmore, 52 Me. 185; Lamprey v. Nudd, 29 N. H. 299; Cook v. Cooper, 18 Or. 145, 22 Pac. 945, 7 L. R. A. 273, 17 Am. St. Rep. 709; Rodinguez v. Hayes, 76 Tex. 225, 13 S. W. 296.
The suggestion by appellant’s counsel that, for aught that appears, the note or notes secured by this mortgage may now be in the hands of innocent third parties, is without merit. The mortgage shows upon its face that it was not given to secure notes at all, but was given to secure -the performance of a certain contract. This being true, it follows that there can be no innocent third parties whose rights can be involved. We are of the opinion, therefore, that die mortgage in question constituted no cloud upon the title to this land, and could not be urged as a reason for appellant’s refusal to accept the deed tendered by respondent.
Appellant also insists that plaintiff lost his right to -compel specific performance of the contract in question on account of his delay in performing the terms of the contract on his part. While it is true that by the terms of the contract plaintiff was to furnish title upon
One other question remains to be considered. In the month of May, after the contract had been entered into, a valuable barn on the premises was destroyed by fire without the negligence of either party, and we are asked to decide which party must bear the loss, and, if plaintiff should bear such loss, then what effect, if any, should this have upon plaintiff’s right to compel specific performance of the contract. A decision of this question necessarily involves the question as to the ownership of the property at the time of the fire; for upon the plainest principles of justice the loss should fall upon such owner. Formerly it was held that such loss should be borne by the vendor, but the modern authorities seem to be unanimous in holding it as above stated, although there is some conflict as to who should be considered the owner under such a contract. 29 Am. & Eng. Enc. of Law, 713, and cases cited.
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. Am. & Eng. Enc. of Law (2nd Ed.) 703, and cases cited; Clapp v. Tower et al., 11 N. D. 557, 93 N. W. 862; Nearing v. Coop, 6 N. D. 349, 70 N. W. 1044; Roby v. Bank, 4 N. D. 156, 59 N. W. 719, 50 Am. St. Rep. 633;
This is not a harsh or unjust rule, for the purchaser is at liberty to protect himself against loss, as he has an insurable interest in the property and he must be held to assume those risks which are ordinarily incident to such ownership. If, from any reason the property enhances in value during this time, he reaps the benefit, and hence it is no injustice to require 'him to bear any loss or deterioration, not the fault of the vendor.
We therefore have reached the conclusion that the plaintiff is entitled to the relief granted by the district court, and the judgment of that court is accordingly affirmed.