Barker v. More

• Decision Date: 20 November 1908
• Parties: BARKER v. MORE et al.
• Court: North Dakota Supreme Court

18 N.D. 82

118 N.W. 823

BARKER

v.MORE et al.

Supreme Court of North Dakota.

Nov. 20, 1908.

Syllabus by the Court.

An amendment to an answer to conform to the facts in an action for an accounting may be permitted by the trial court, although such amendment is not requested until after the evidence has all been taken.

An amendment to an answer may be made, during or at the close of a trial, to conform to the facts proven, unless the defense is thereby substantially changed.

Parties to a written assignment of a contract for the sale of real estate, which was made for security purposes, can annul the same and make such assignment absolute by a subsequent contract or assignment.

An action for an accounting will not lie, in the absence of contract or fraud, to compel a redemptioner from a mortgage foreclosure sale, who thereafter obtained a sheriff's deed under his redemption, to account to the mortgagor for the difference between what was paid on the redemption and the value of the land.

The evidence considered, and held to show that the parties agreed to change an assignment for security purposes to one absolute in form and effect.

Appeal from District Court, Barnes County; Burke, Judge.

Action by James Barker against John L. More and A. V. More. Judgment for defendants, and plaintiff appeals. Affirmed.Lee Combs and J. A. Coffey, for appellant. Parks & Olsberg, for respondents.

MORGAN, C. J.

This is an action for an accounting based on the alleged wrongful surrender and cancellation of a land contract. The action is based upon the following facts: In the year 1896, the plaintiff, James Barker, and one Adams, entered into a written contract, under the terms of which Adams agreed to convey to the plaintiff 320 acres of land situated in section 9, township 144, range 62, Stutsman county, for the sum of $2,240, upon the crop payment plan. The plaintiff immediately went into possession of said land and caused 270 acres thereof to be broken and cultivated, and he cultivated the same until the year 1902, when he alleges that he was wrongfully dispossessed of said premises. The plaintiff has never resided upon the land in question, but resided on his homestead, situated in section 8 of said township. The plaintiff built a barn upon the land involved in this contract, and built fences upon the same. The barn was of the value of $600, and the total improvements, including the barn and breaking, amounted to about $1,500. The record does not show that the plaintiff has ever paid anything upon said contract by turning over any portion of the crops, as provided for in the contract. In August, 1901, the plaintiff was indebted to Larson & Cooper in the sum of $815.50, and at that time he assigned all his interest in the contract to that firm to secure the payment of that sum. Larson subsequently assigned his interest in the contract to Cooper, and Cooper thereafter assigned all his interest in the contract to More Bros., the defendants, for the sum of $450. At the time of the assignment to More Bros. by Cooper, he assigned to them also the debt due from plaintiff to Cooper & Larson, being the debt of $815.50. About that time the defendants also bought some notes from Cooper, which he held against the plaintiff. These were notes given by the plaintiff to the Minneapolis Thresher Company for a separator, and they amounted to about $775. The plaintiff was also indebted to the defendant at that time upon a book account. The assignment from the plaintiff to Larson & Cooper was not absolute, but was given as security for the payment of the debt due from the plaintiff to Larson & Cooper. Before the year 1902, Adams, the owner of the land when he made the contract with Barker, conveyed the land by deed to one Fiero, and said Fiero thereafter conveyed all of said land to one Bond. These defendants, More Bros., thereupon brought an action against said Adams, Bond, and Fiero to set aside these deeds, and to compel Adams to convey the land to them, they alleging that Barker had fully complied with all the terms of the contract up to that time, and they offered to comply with the remaining unfulfilled terms thereof. This action was settled by the parties by the payment to More Bros. of the sum of $1,000. The action was thereupon dismissed, and More Bros. released all their interest in the contract to Bond and Fiero. Under the terms of this settlement, More Bros. also reserved the right to remove the barn from the place, and they turned over and delivered the barn to the plaintiff, who took possession of the same. Before this time, it is claimed by the defendants, and denied by the plaintiff, that plaintiff gave defendants an absolute assignment of the contract for a valuable consideration. The consideration is claimed to have been the sum of $600, the value of the barn turned over, and $1 paid at that time. Prior to this time, plaintiff had mortgaged his homestead several times, and among the mortgages thereon was one to the Garr-Scott Company for $1,400, dated September 28, 1901. The defendants purchased this mortgage on December 30, 1901. One Fuller held a first mortgage on this homestead and foreclosed the same December 5, 1903. From this foreclosure there was a redemption by a subsequent mortgagee, and from the redemptioner of the Fuller foreclosure the defendants redeemed by virtue of the lien held by them as owners of the Garr-Scott mortgage. The defendants paid $2,826.60 to redeem from this prior foreclosure, and did not foreclose their own mortgage. In February, 1905, a sheriff's deed was issued to them by virtue of their redemption certificate. In the year 1896, the land involved in this contract was of the value of $7 per acre. It steadily increased in value, until at the time of the trial it was valued at $28 per acre. Upon these facts, the plaintiff demands an accounting from the defendants, and bases such claim or demand upon the fact that they wrongfully surrendered and assigned the land contract to said Fiero and Bond, by reason of which the land was conveyed to them as innocent purchasers, and that he thereby lost the land. The answer is, in effect, a general denial. The record shows that there was a misunderstanding at the trial as to whether an amended answer had been served. After such misunderstanding had developed, the defendants asked leave to interpose and file an amended answer, and leave was granted to file the same. This amendment was objected to, and the objection is still insisted on. The additional fact sought to be pleaded in the amended answer is that plaintiff assigned all his interest in the contract to them for a valuable consideration, on November 7, 1902, by an instrument absolute in terms, and that it was expressly agreed and understood...