Wilson v. Kryger

• Decision Date: 07 December 1914
• Parties: WILSON v. KRYGER.
• Court: North Dakota Supreme Court

29 N.D. 28

149 N.W. 721

WILSON

v.KRYGER.

Supreme Court of North Dakota.

Nov. 12, 1914.

Rehearing Denied Dec. 7, 1914.

Syllabus by the Court.

The Daniels-Jones Company executed at Minneapolis, Minn., a contract for deed to one Peterson for 2,560 acres of land in Kidder county, this state, upon which an initial payment down had been made. The contract was assigned to defendant Kryger. Two installments became due, and, remaining unpaid, the company served notice of cancellation of the contract. It then sold and deeded the land to plaintiff, who brought this action to quiet title. Kryger defends, claiming “that the place to cancel the contract was in Minnesota, where it was made, where it was to be performed, and where the parties reside”; that if cancellation under the laws of this state is allowed, he is denied the equal protection of the laws, and deprived of his property without due process of law. Held, that in this action to pursue the land the validity of the contract is directly involved in the suit to quiet title, and the situs of the action is fixed by the statute as in the county where the land is situated.

The statutory provision for cancellation or foreclosure of contracts by notice of default to be given relates to procedure and remedy concerning the enforcement of the contract against the land, and the situs of the suit and of the land govern the procedure and remedy to recover title to the land, and the cancellation made under the laws of this state furnishes sufficient evidence of defendant's default under said contract to sustain the conclusion of law drawn from the findings to the effect that all rights of the defendant to the land under said contract were terminated because of his defaults. The findings sustain the judgment entered.

Under the findings and on the judgment roll there is no proof of the Minnesota law governing cancellation of this contract, although the foreign law in such respect is immaterial. The law of the forum and of the situs of the real property control the method and procedure of cancellation of contracts in this suit involving title, and where the contract was executed in a foreign state, without stipulating for performance to be had within this state.

Defendant has appealed upon alleged error appearing upon the judgment roll only and without settling a statement of the case. Where a statement of the case is not settled, and the questions to be raised on the appeal are not errors of law occurring on the trial, but instead only errors appearing on the face of the judgment roll, no specification of error need be taken at all, and no specification of error therefore need be served with the notice of appeal, or at all. All that is necessary to have such error appearing on the face of the judgment roll only reviewed is to assign and argue in the brief the error complained of. The insufficient specification of error here taken and served, not being necessary, is disregarded, and the alleged error assigned in the brief on the judgment roll is passed upon.

Additional Syllabus by Editorial Staff.

The words “errors of law,” as used in section 4 of the new practice act (Comp. Laws 1913, § 7656), requiring that appellant specify in a statement the errors of law complained of, refer only to errors of law occurring at the trial, and not to errors appearing on the face of the record proper.

An action to cancel a contract for the sale of land is not transitory, but is a local action.

Appeal from District Court, Kidder County; W. H. Winchester, Judge.

Action by Edward Wilson against Henry H. Kryger. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 26 N. D. 77, 143 N. W. 764, 51 L. R. A. (N. S.) 760.

W. W. Fry, of St. Paul, Minn., for appellant. R. L. Phelps, of Steele, and Jesse Van Valkenburg, of Minneapolis, Minn., for respondent.

GOSS, J.

This is an action to determine adverse claims. Defendant answers that he is interested as the holder of a contract of sale of the land involved. By reply it is alleged said contract was canceled for defaults thereunder. Trial was had at a regular term, defendant failing to appear. On plaintiff's proof the court made findings, conclusions, and order for judgment, upon which judgment was entered quieting title in plaintiff. Defendant's appeal is governed by chapter 131, Laws of 1913, as was held in this action. Wilson v. Kryger, 26 N. D. 77, 143 N. W. 764, 51 L. R. A. (N. S.) 760. Subsequently, and pending this appeal, portions of appellant's brief on motion were stricken, together with certain matter not properly a part of the judgment roll. The case is now for decision upon error assigned upon the judgment roll, and upon that alone, as there is no settled statement of the case, and hence nothing reviewable, except error as assigned in appellant's brief upon the judgment roll proper.

[4][5] In the opinion written in this action upon motion to dismiss this appeal, in 26 N. D. 77, 143 N. W. 764, 51 L. R. A. (N. S.) 760, appear statements concerning the specification of errors of law there permitted to be served after time. It was assumed that the taking and service of said specification was necessary as a prerequisite to an assignment of error and review in this court. What was there said was under the apprehension that a statement of the case would be used on appeal, and that the same would therefore be necessary accordingly to raise alleged errors occurring on the trial. The justice who prepared said opinion has also since written the opinion in Leu v. Montgomery, 28 N. D. ---, 148 N. W. 662, wherein it is held that, in an appeal taken to review alleged error on the judgment roll alone, no specification of errors of law need be taken at all. Nor in such an appeal on the judgment roll alone need there be any specification of errors of law either taken or served. “It was not the purpose, in the enactment of section 4 (chapter 131, S. L. 1913, now section 7656, C. L. 1913), to require any statement or specification to be thus served, except in cases where, under the former statute (section 7058, R. C. 1905), the same were required to be incorporated in a statement of the case, and it is, of course, true that no such specifications were required under section 7058, in order to enable the court to review rulings appearing upon the judgment roll proper. In such case it is only necessary for the appellant to assign such ruling as error in his brief. To make our position plain, the words ‘errors of law,’ as used in section 4 of the new practice act, should be construed as referring only to errors of law occurring at the trial, and which, in order to be brought to the attention of the court under the former practice, had to be specified in the settled statement of the case, and that they have no reference to errors appearing upon the face of the record proper.” Mention is made of this for the reason that appellant, in attempting to comply with permission granted in the former hearing in this court of this appeal, served a so-called specification of error, but which specification as such is wholly insufficient to raise any error on the judgment roll. As it was unnecessary, however, to take or serve any specification of error, this one served may be disregarded. Consideration will now be given to appellant's brief.

The three briefs filed by appellant, while somewhat indefinite as to error assigned, are sufficient to raise the principal question of whether the conclusion of law, that the contract of sale under which appellant claims an interest in the premises was canceled is the correct legal deduction from the facts found in the findings as supplemented by those admitted in the pleadings. And this is the question mainly discussed in the respondent's brief. The contracts in question are a part of the pleadings, and their execution and delivery is admitted. The contract in question is one by the Daniels-Jones Company to Carl Peterson, dated January 19, 1909, wherein said company agreed to sell to Peterson 2,560 acres of land in Kidder county, N. D., for $21,760, with $1 paid on said purchase and the balance in installments, the first of which, for $1,280, matured the following March 1st, and $2,560 the 1st of each month thereafter until November 1st, the date of the last installment. This contract was assigned immediately to Kryger, the appellant, who subsequently has contracted to sell a portion of said land to a codefendant, Piper, the date of said agreement being December 30, 1910; that the Daniels-Jones Company, at the time of executing said contract of sale to Peterson, owned the land. They subsequently have conveyed it to this plaintiff, Wilson, who owned it at the time of the commencement of this action. The contract given to Peterson is dated at Minneapolis, Minn., and does not stipulate for a place of performance. The findings establish that Peterson and Kryger defaulted in the payments due under the contract March 1st and April 1st, and that on April 15th notice of cancellation because of default was placed in the hands of the sheriff of Kidder county, N. D., for service, who made return of inability to find either Peterson or Kryger, whereupon notice of cancellation was served by publication thereof in Kidder county for three weeks, beginning May 1, 1909. Said notice thus served was to the effect that, unless said defaults were cured by payment of all amounts due before 30 days after the service of said notice, the contract would be canceled and terminated. Subsequently affidavit of publication, together with affidavit of non-redemption from said contract, were filed for record. Deeds to this plaintiff were filed for record June 6, 1910, and May 15, 1911. On March 1, 1909, Kryger filed his affidavit for record, therein reciting that he held a contract for deed. Service of notice of cancellation was completed prior to June 1, 1909, and said purchasers had not paid to said company any sum of money whatever, nor...