Anheier v. Signor
| Decision Date | 10 July 1899 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by C. H. Anheier, receiver of the Citizens' National Bank of Fargo, against Elmer L. Signor. Judgment for plaintiff. Defendant appeals.
Pollock & Scott, and Newman, Spalding & Stambaugh, for appellants.
Benton Lovell & Bradley, for respondent.
We are first confronted in this case with a motion to dismiss this appeal. The plaintiff, Anheier, as receiver of the Citizens' National Bank of Fargo, brought suit against the defendant, Elmer L. Signor, upon the latter's promissory note for $ 10,000 given to said bank, and asked to foreclose the interest of said Signor in a land contract in which he was named as purchaser, and which covered a certain section of land in Cass county. The plaintiff claimed that said land contract had been assigned to said bank as security for the payment of the note. That the contract had been assigned to "C. C. Schuyler, Cashier," was admitted, and it was also admitted that at the time of the assignment Schuyler was the cashier of said bank, to defendant's knowledge. But it was the defendant's contention that the assignment was in fact made to Schuyler to secure an indebtedness owing by said defendant to said Schuyler, and that it never was given or intended to secure the indebtedness due the bank. The trial court resolved this issue against defendant, and there was a judgment and decree accordingly, from which defendant duly perfected an appeal. Now, however, respondent comes into this Court with a stipulation, signed by the parties of record, setting forth that the controversy had been settled, and consenting and asking that the appeal be dismissed. This is opposed by one G. Lee Clark, hitherto a stranger to the record. He bases his opposition upon the fact that, pending the litigation, the defendant, Signor, by quitclaim deed, transferred to Clark all his interest in the land, and that the settlement was made with full knowledge upon the part of plaintiff that such deed had been given, and of all the purposes for which it was given. Plaintiff, defendant, and Clark submit affidavits on the motion to dismiss. Certain things are undisputed. The deed to Clark was given, and that fact was well known to plaintiff when the settlement was made. Defendant, Signor and his mother were largely involved. Everything that they had was incumbered, and actions were pending to foreclose these incumbrances, and they were in danger of losing their property. About the time this action was commenced Clark became interested in their affairs,--voluntarily, they say he says at their request. It appears from the affidavits of all the parties that Clarke advised and counseled the Signors; that he virtually took charge of their litigation; that he looked up the testimony, employed the attorneys, advanced the funds necessary to meet the expenses of the litigation, or became responsible for such expenses; that he attended court at all times when the matters were being heard, and was active in promoting the interests of the Signors. This action was commenced April 12, 1898. The answer was served three days later, at which time an application for the appointment of a receiver was heard. Clark was present opposing the appointment and it was denied. On April 23, 1898, the deed to Clark was executed. From these facts it is clear that Clark is bound by the decree in this case. He purchased the property pendente lite, with full knowledge of all the facts. The terms of that settlement between the parties to the record are not disclosed, further than that it appears that plaintiff had assigned and transferred his interests under the decree, thus leaving the decree in full force.
It further appears, both by affidavit and by the statement of his counsel in this court, that plaintiff has no further interest in the litigation, except, possibly, to the extent of the costs in this court. Under these facts, can Clark be heard to oppose this motion? We think he can. We make our decision no broader than the facts. When the settlement was made, both parties had full knowledge of the deed, and of just what Clark was claiming thereunder. If Clark speaks the truth, there was a tempting opportunity to defraud him. True plaintiff might not benefit by the fraud, but he could not avoid knowing that he was enabling Signor to perpetrate the fraud and profit thereby. If plaintiff had made the settlement in ignorance of Clark's rights, or if he were to be damaged by a reversal of the decree, the matter might not appeal so strongly to a court of equity. Our statute (Rev. Codes, § 5234) declares that, in case of the death or disability of a party, the Court may, upon motion, allow the action to be continued by or against his representatives or successors in interest, but, in case of any other transfer of interest, the action shall be continued in the name of the original party, or the Court may allow the transferee to be substituted in the action. Clearly, this section applies to parties defendant as well as parties plaintiff. Under it Clark might have been made a party defendant to the action, had he so elected in the court below. We think it might be done in this court. See Packard v. Wood, 17 Abb. Pr. 318; Emmet v. Bowers, 23 How. Pr. 300. Without the aid of any such statute, it was said in Mosier v. Lumber Co., 66 Ill.App. 630: -- citing 2 Tidd, Prac. *1135; Hill's Heirs v. Hill's Ex'rs., 6 Ala. 166; Dupree v. Perry, 18 Ala. 34. The same is held in Mason v. Peck, 30 Ky. 300, 7 J.J. Marsh. 300. There the purchaser brought the writ in the name of the original defendant. See, also, Marr v. Hanna, 30 Ky. 642. There are cases opposed to this principle (Clarke v. Koehler, 32 Tex. 679; Stout v. Mercantile Co., 41 W.Va. 339, 23 S.E. 571); and Benn. Lis Pend. § 225, cites the Texas case with approval. But the principle which permits a purchaser pendente lite to prosecute an appeal from a judgment adverse to his interests is so strongly reinforced by our statute that we are clear that Clark might have appealed in this case, and, defendant having taken the appeal, Clarke may be heard to oppose its dismissal when he claims such dismissal would be in bad faith as to him on the part of both parties. It is true that Signor seeks to avoid Clark's right by claiming...
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