Prondzinski v. Garbutt
| Decision Date | 05 December 1898 |
| Docket Number | 6731 |
| Citation | 77 N.W. 1012,8 N.D. 191 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh County; Sauter, J.
Action by Michael Prondzinski against James Garbutt. Verdict for plaintiff. From an order granting a new trial, he appeals.
Affirmed.
Affirmed. The costs of appeal to abide the final decision of the case.
John H Fraine, (Cochrane & Corliss of counsel), for appellant.
The right to redeem property sold on execution may be prolonged by parole agreement of the parties beyond the statutory period. Griffin v. Coffey, 50 Am. Dec. 519. It is a fraud for the purchaser to refuse to carry out his parole agreement after the redemption period has expired and equity will grant relief. Southard v. Pope, 9 B. Monroe 264; Adams v. Kable, 44 Am. Dec. 772; Wilson v Eggleston, 27 Mich. 260; Laing v. McKee, 87 Am Dec. 738. The statute of frauds cannot be set up as a protection to fraud. Teague v. Fowler, 56 Ind. 569; Barnard v. Flynn, 8 Ind. 204; Leahey v. Leahey, 11 Mo.App. 413; Turner v. Johnson, 95 Mo. 431; Arnold v. Cord, 16 Ind. 177; Kinnard v. Heirs, 3 Rich. Eq. 423; Martin v. Martin, 6 B. Mon. 8. The rule that an appellate court will support an order granting a new trial more readily than one denying an application for a new trial does not apply where the ground on which the order was granted is not one involving judicial discretion but presents the naked question whether there was or was not an error in law occurring at the trial. Braithwaite v. Aiken, 2 N.D. 57, 62; Clifford v. R. R. Co., 12 Colo. 125; Lorenzana v. Camarillo, 41 Cal. 467; The Minnesota Thresher Mfg. Co. v. Lincoln, 4 N.D. 426; Alt. v. C. & N. Ry. Co., 57 N.W. 1126. Where no question of discretion is involved this Court will reverse the order if there was in fact no error in law occurring at the trial. It has done so in several cases. Braithwaite v. Aiken, 2 N.D. 57; Minn. T. Mfg Co. v. Lincoln, 4 N.D. 410; Flugel v. Henshel, 6 N.D. 205. A party who lulls the owner of property into a sense of security by promising him that he may have further time to redeem cannot after the time has expired use the statute of frauds as an instrument to enable him to accomplish the fraud upon the owner of the land he had in view when he made the promise. Cases in note 40 Am. Dec. 207; Kaler v. Grady, 37 S.W. 955; Morrow v. Jones, 60 N.W. 369; Little v. Jones, 19 S.W. 497; Cox v. Ratcliffe, 105 Ind. 374; Moorman v. Wood, 19 N.E. 739; Schrooder v. Young, 161 U.S. 334, 16 S. C. Rep. 512; 2 Freeman on Executions, § 316, pp. 1078, 1079. As the contract was valid and defendant broke it, plaintiff has a right of action for damages for the breach. Kolka v. Jones, 6 N.D. 461, 71 N.W. 558. Respondent cannot urge for the first time in this Court that the complaint does not aver the disposition of the land by respondent. When he made his motion to exclude evidence under the complaint, he specified the points that the agreement was not in writing and that there was no consideration for the promise alleged. By this specification of grounds he waived others. First Nat. Bank v. Laughlin, 4 N.D. 391; Minnesota Th. Mfg Co. v. Lincoln, 4 N.D. 410-426. The insufficiency of the pleading cannot be raised by a general objection to all evidence at the beginning of the trial, but when evidence on the particular point not set out in the complaint is offered it must be objected to on the specific ground that it is not within the issues. Bowman v. Eppinger, 1 N.D. 23, 44 N.W. 1000. This Court if necessary will amend the complaint to conform to the proofs. Anderson v. Bank, 5 N.D. 80, 64 N.W. 114. A party cannot wait to ascertain whether an answer will be favorable and then move to strike it out. He must object before the answer is given. 1 Thom. on Tr. § 700; Maxwell v. Ry. Co., 85 Mo. 95. When a party is interrogated as to extra judicial statements for impeachment purposes, a foundation must be laid by calling the witness's attention to the time, place and circumstances of the statement. 1 Rice Ev. 622, 624; 29 Am. & Eng. Enc. L. 784; 10 Enc. Pl. & Pr. 282; 1 Greenl. Ev. § 462; Aneals v. Peo., 25 N.E. 1022; State v. Hunsaker, 19 P. 695; Brown v. State, 20 A. 186; Wood River Bank v. Kelley, 46 N.W. 86; Conway v. Nichol, 34 Ia. 533; Pope v. Lathrop, 46 N.E. 154; Browning v. Gosnell, 59 N.W. 340.
De Puy & De Puy (Templeton & Rex of counsel), for respondent.
The order granting new trial must be upheld if any of the grounds enumerated in defendant's motion were well taken. Defendant is not limited to the single ground specified in the Court' s order. Grant v. Moore, 29 Cal. 644; In re Raynor, 16 P. 229; Hewitt v. Steele, 24 S.W. 440; Denslow v. Dodendorf, 66 N.W. 409; Tatum v. Tatum, 20 So. Rep. 341; Knight v. Barnes, 7 N.D. 591, 75 N.W. 904. The complaint does not state a cause of action and defendant's general objection to all testimony thereunder was well taken. Overruling this objection was an error of law occurring at the trial. The complaint does not aver a tender of the amount necessary to redeem, or any demand for a deed. Nye v. Swan, 49 Minn. 431; Union Mut. Life Ins. Co. v. White, 106 Ill. 67; Undewood v. Ten, 34 P. 1100; Goodwine v. Morey, 22 N.E. 82; Shelley v. Mikkelson, 5 N.D. 22. The rule that naming the grounds of an objection, motion or demurrer excludes all other grounds, has no application in a case where the complaint is attacked for want of sufficiency with respect to the facts alleged. Barnet v. Muncie Nat. Bank, 98 U.S. 555, 25 L.Ed. 212; Putnam v. Lamphier, 36 Cal. 151; Pope v. Mfg. Co., 107 N.Y. 61; Porter v. Booth, 1 S.D. 558, 47 N.W. 960; Lee v. Emery, 10 Minn. 187; Northern Trust Co. v. Markell, 63 N.W. 735; Haskell v. Moore, 29 Cal. 437; § 5272 Rev. Codes; Weltner v. Jacobson, 7 N.D. 34, 73 N.W. 65. The evidence does not show a valid foreclosure of the mortgage. A deed executed in pursuance of a foreclosure by advertisement is not even prima facie evidence of title. Grant County v. Col. & U. S. Mtge. Co., 3 S.D. 390, 53 N.W. 746. The Court charged the jury that plaintiff might recover if defendant made the promise to extend the period of redemption and took the deed. The taking of a deed by defendant would not deprive plaintiff of his right to redeem if the promise was in fact made. Felton v. Smith, 84 Ind. 485; Union Mut. Life Ins. Co. v. White, 106 Ill. 67; Dodge v. Brewer, 31 Mich. 227.
The complaint in this case in substance alleges that for some time prior to January 5, 1895, the plaintiff was the owner in fee of a certain 160 acres of land situate in Walsh county (particularly describing it); that said land was incumbered by several liens created by his grantor, one of which, being a mortgage to one W. R. Shepard, had been foreclosed by a sale of the land, and a sheriff's certificate of sale issued to said Shepard at the date of such sale, to-wit: December 30, 1893; that in March thereafter the certificate of sale was assigned to the defendant, James Garbutt; that thereafter, and in the month of December, and within the year allowed for redemption, the plaintiff offered to pay to the defendant the amount of money required to make redemption from the foreclosure; that the defendant, with intent to defraud and deceive the plaintiff, and for the purpose of inducing the plaintiff to defer making redemption, well knowing that plaintiff relied upon his representations, promised plaintiff that he would give him further time in which to redeem, which promise was made for the purpose of deceiving plaintiff, and without intention of keeping it, and to induce plaintiff to alter his position, and to put it out of his power to redeem said land, to the end that defendant might get a sheriff's deed thereto; that plaintiff, in reliance upon such promise, allowed the period of redemption to expire; that on the 5th day of January, 1895, the defendant caused a sheriff's deed thereto to be issued to him, placing the same of record on that day, transferring the legal title to said land from plaintiff to this defendant; that the plaintiff was ready, willing, and able to pay the amount necessary to redeem said land, which was $ 731.35 and interest; that through such promises plaintiff was induced not to do so, but to pay his money upon other indebtedness held by the defendant; that said land was on the 30th day of December, 1894, of the value of $ 4,500. To this statement of facts the plaintiff adds this prayer: "Wherefore plaintiff demands judgment against the defendant for the sum of $ 3,768.65, with interest thereon from the 30th day of December, 1894, together with the costs and disbursements of this action." The defendant by his answer admitted the existence of the liens, the foreclosure of the mortgage, and purchase of the sheriff's certificate, and also the issuance and recording of the sheriff's deed, and that the land was of the value of $ 1,800, but by a denial placed all other allegations in issue. The case was tried as an action at law to a jury, and a verdict returned for the plaintiff for $ 2,178.45, with 7 per cent. interest from January 5, 1895. The defendant made a motion for a new trial, which was granted by the trial court. From the order setting aside the verdict and granting a new trial, plaintiff appeals.
The motion was based entirely upon errors of law, only one of which will be referred to. The Court, in its order granting the motion, used this language: "The decision of the Court herein is based solely upon the first ground specified in defendant's motion, to-wit: that the complaint does not state facts sufficient to constitute a cause of action." The abstract discloses that in fact this objection adopted by the Court as the basis of its order was made at the opening of the trial, in the form...
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