Berry v. Evendon

• Decision Date: 09 June 1905
• Citation: 14 N.D. 1,103 N.W. 748
• Parties: BERRY v. EVENDON.
• Court: North Dakota Supreme Court

14 N.D. 1

103 N.W. 748

BERRY

v.EVENDON.

Supreme Court of North Dakota.

Sept. 10, 1904.

On Rehearing, June 9, 1905.

Syllabus by the Court.

1. A trust of personal property is not within the statute of frauds, and may be created by spoken words and proved by parol.

2. Where a trustee of personal property converts it into real estate, the trust attaches to the real estate in the hands of the trustee.

3. The defendant foreclosed a real estate mortgage which was held by him in trust for the plaintiff, and thus secured title to the land in his own name. In the trial of an action to compel him to convey the same to the cestui que trust and to account for the rents and profits, it was found that he had sold the land to an innocent purchaser. The trial court entered judgment for the value of the land, and for the value of its use, less certain sums due to the defendant. Held, upon a review of the entire case, that the facts found by the trial court are fully supported by the evidence, and that the judgment was proper.

On Rehearing.

4. The mere fact that the defendant had title to the land for three years did not make him liable for the value of the use for that period. He is liable only for the years he actually used it for cropping purposes.

Appeal from District Court, Towner County; Charles J. Fisk, Judge.

Action by B. F. Berry against Adolphus Evendon. Judgment for plaintiff, and defendant appeals. Modified.Brennan & Gray, for appellant. Burke & Middaugh, for respondent.

YOUNG, C. J.

The plaintiff brought this action to compel the defendant to convey to him 160 acres of land situated in Towner county, and to account for the rents and profits of the same for the years 1898, 1899, 1900, and 1901. The trial court held that, as to the defendant, the plaintiff was entitled to a conveyance, but that this particular relief could not be granted, for the reason that the defendant had conveyed the land to an innocent purchaser. Judgment was entered in the plaintiff's favor for the value of the land, and for the value of the use and occupancy thereof for the years 1898, 1899, and 1900, after deducting certain sums which were found to be due to the defendant. Defendant has appealed from the judgment, and demands a review of the entire case in this court, under the provisions of section 5630, Rev. Codes 1899.

The questions at issue and the grounds upon which plaintiff bases his right to relief will appear from a statement of the substance of the allegations of the complaint. It is alleged that on the 19th day of November, 1896, the plaintiff and defendant entered into an agreement by the terms of which the defendant loaned to the plaintiff the sum of $450, at the rate of 12 per cent. per annum, for the purpose of buying from one Julia V. Tucker a mortgage upon the premises in question, which was executed by Michael Rock, mortgagor, to Edmund Kimball, and duly assigned to said Julia V. Tucker; that, to secure the payment of said loan, it was agreed that the assignment of said mortgage was to be made in the name of defendant, Evendon, and that he was to hold the same in trust for the plaintiff, and handle the same for plaintiff, and, if it was redeemed or paid, the proceeds were to be paid to this plaintiff, less the amount due upon his debt to defendant, and, in case the defendant foreclosed the mortgage, it was to be for the plaintiff, and the title to said land was to be held in trust for the plaintiff by the defendant, and upon the payment of the money loaned, with interest, the defendant was to deed the land to the plaintiff; that on August 28, 1897, the mortgage was foreclosed and the land bid in by the defendant, and he took a sheriff's certificate and subsequently a deed therefor; that plaintiff has tendered the full amount of the money borrowed, with interest, and demanded a deed; that defendant refuses to accept the same, and refuses to deed the land; that the amount tendered was more than the amount due, and that the same was thereupon deposited in the State Bank of Cando to the credit of the defendant, and the defendant notified of said deposit; that the defendant farmed the land in the years 1898, 1899, 1900, and 1901, and raised grain thereon to the value of $4,500; that, under the custom in that vicinity, the plaintiff is entitled to one-third of the crop, amounting to the sum of $1,500. The prayer for relief, in addition to asking for a decree of specific performance, and for an accounting for the rents and profits, asks for general equitable relief. The defendant, in his answer, admits the foreclosure of the mortgage, but places in issue every other allegation of the complaint, and, in an amendment filed during the progress of the trial, alleges that he had sold the land to one C. J. Lord, and that by reason thereof he is unable to specifically perform any such contract as is claimed by plaintiff in his complaint, and that for this reason the plaintiff cannot maintain this action, and that his only action, if there was a valid contract, is for damages, triable to a jury; and he further alleges that plaintiff should not be permitted to recover, for the reason that the defendant did not make or sign any contract or agreement in writing, or any memorandum in writing, binding him to make a conveyance of the premises.

The trial court found the facts to be substantially as alleged in the complaint, and, as to the foreclosure, that in July, 1897, the plaintiff and defendant had engaged the firm of Cowan & McClory to foreclose the mortgage upon an agreement that the land should be bid in at the sale in the name of the defendant, and held in trust by him for the benefit of the plaintiff, and as security for the payment of the $450 loan; that said firm, acting in behalf of both plaintiff and defendant, foreclosed the mortgage and bid in the land in the name of the defendant, but for and on behalf of the plaintiff, and in trust and as security for said loan; that after the expiration of the redemption period the defendant made an affidavit stating that the sheriff's certificate of sale was lost, and, upon such affidavit, obtained a sheriff's deed; that he well knew such certificate was not lost, but was in the office of the said Cowan & McClory; that the affidavit was fraudulently made for the purpose of defeating the rights of this plaintiff. As conclusions of law, the court found that the assignment of the mortgage to the defendant was made for and on behalf of the plaintiff, and in trust for him, and was held by the defendant as security for said loan; that the certificate of sale on the foreclosure was in fact a mortgage for the payment of said loan; that both as to the assignment of the mortgage and the certificate of sale the defendant was a voluntary trustee for the plaintiff; that as to the sheriff's deed the defendant is a voluntary and constructive trustee for the benefit of the plaintiff; that the plaintiff is entitled to a decree of specific performance upon payment of the amount loaned, with interest, and costs and expenses of the foreclosure, and to rents and profits; that C. J. Lord is an innocent purchaser of the property, and therefore the defendant cannot perform his contract; that plaintiff is entitled to recover the value of the land, together with the rents and profits, and an accounting to ascertain the value of the land and the amount of such rents and profits, and, when ascertained, to judgment therefor. In pursuance of the foregoing conclusions, a stipulation was entered into between the parties that the testimony in reference to the value of the land, and “the value of the use and rents and profits of the same,” might be taken by a referee, from whose report the court found the value of the...