Briggs v. Coykendall

• Decision Date: 05 April 1929
• Docket Number: No. 5585.,5585.
• Citation: 57 N.D. 785,224 N.W. 202
• Parties: BRIGGS v. COYKENDALL et al.
• Court: North Dakota Supreme Court

57 N.D. 785

224 N.W. 202

BRIGGS

v.COYKENDALL et al.

No. 5585.

Supreme Court of North Dakota.

Jan. 8, 1929.

Rehearing Denied April 5, 1929.

Syllabus by the Court.

In order to maintain an action for slander of title, it must be shown that the defendant maliciously published false statements, and that pecuniary damages resulted as a natural or legal consequence.

Additional Syllabus by Editorial Staff.

“Slander of title” is the false or malicious statement, oral or written, made in disparagement of a person's title to real or personal property, causing him special damage.

On appeal from judgment for plaintiff, plaintiff's testimony will be viewed in its most favorable aspect toward plaintiff, even though most of it is controverted by defendant.

Defendant's placing on record of deed to property showing title in some one other than plaintiff, and thereafter demanding crops, and thus interfering with plaintiff's rights, held not sufficient basis for action for slander of title.

There can be no “malice” in the legal sense required to sustain action for slander of title when defendants have color of title and have a bona fide belief therein; words “malice” and “maliciously,” when so employed, importing a wish to vex, annoy, or injure another, or an intent to do a wrongful act, and may consist in direct intention to injure, or in reckless disregard of another's rights.

Before a jury may infer malice, required to support action for slander of title, there must be more than a probability of loss, or possibility that defendant had a bad motive, but there must be facts from which such bad motive can be fairly inferred.

Evidence held insufficient to warrant finding of malice or malicious intent in purchasing land previously purchased from grantor by plaintiff and recording deed thereof, and action for slander of title was therefore not maintainable.

Words spoken or written in relation to property or title are not actionable per se, but special damages must be shown, generally loss of sale or lease to some particular person.

Appeal from District Court, Ramsey County; C. W. Buttz, Judge.

Action by Pearl Briggs against Frank Coykendall and another. Judgment for plaintiff, a new trial was denied and named defendant appeals. Reversed, and action dismissed.

J. C. Adamson, of Devils Lake, for appellant.

W M. Anderson and F. T. Cuthbert, both of Devils Lake, for respondent.

BURR, J.

This is an action to recover $10,000 damages for alleged slander of title to 80 acres of land situated in Ramsey county, this state.

The land in issue was owned formerly by one Harry Coykendall, and the plaintiff alleges in her complaint that in November, 1925, she purchased this land from him, went into possession of it, leased it to tenants, and on December 30, 1926, received a warranty deed from the former owner. The complaint further states that the defendants, knowing that she had purchased the land and was in possession, and knowing that she had this warranty deed, although not of record, and with “the purpose in mind of libeling and slandering her title thereto and beclouding it so that she could not sell, mortgage or dispose of the same and for the purpose of injuring her in her title, possession and ownership thereof, and the crops grown thereon-fraudulently and maliciously and with the intent stated obtained a deed to said land from the said Harry L. Coykendall at the same time knowing that he had given a deed thereto to the plaintiff who was in possession thereunder; that said Harry L. Coykendall had nothing to deed, for the sum of $50, and that with like intent and purpose and also to libel and slander her title thereto caused the said deed to said land to be recorded in the office of the Register of Deeds of said Ramsey County, N. D. it being in the form of a warranty deed dated July 5, 1927 from Frank L. Coykendall (Harry L. Coykendall) to the defendant Ella Coykendall purporting to convey the land in question, and which deed was recorded-July 7, 1927 thereby falsely and maliciously published that the said Ella Coykendall was the owner of said land.”

The complaint then alleges that, by reason of the foregoing acts, her title is clouded, she is deprived of the power of disposing of her title, her title is made unmarketable, she cannot enjoy title to the land “until the determination of an action to clear same in the courts”; that she had made demand on the defendants for a deed, but they refused to remove the cloud, and claim they are the owners, and entitled to the crops. She alleges the land is worth $3,200, with $1,400 incumbrance against it; that it will cost her $200 to commence an action to remove the cloud; that she expended $75 in making trips in an attempt to settle the difficulties; that, “because of the annoyance and trouble she had been put to by reason of the acts of the defendant as heretofore alleged she has suffered mentally in the sum of $3,000.00, that because of the malice, fraud and oppression practiced upon her by the defendants she asks exemplary damages in the sum of $5,000.00.”

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and, on the demurrer being overruled, answered separately. In these answers defendants deny knowledge of plaintiff's claim, and allege title in the defendant Ella Coykendall, through deed from Harry Coykendall. Appellant denies asserting in himself any title or claim to the property, and alleges that anything he did was done as agent or attorney for the codefendant, his sister.

The case therefore resolves itself into a contest over the title to the land, for the issue of title is raised squarely, and the case was tried on the theory that plaintiff must prove she, and not the defendant Ella Coykendall, is the owner of the land. The plaintiff recognizes this, and on this theory the court instructed the jury.

The case was submitted to a jury, who returned a verdict for the plaintiff and assessed her damages in the sum of $440 against Frank Coykendall only. Judgment was thereupon entered in favor of the plaintiff and against Frank Coykendall for $440 and costs, and for dismissal of the action as to Ella Coykendall.

The appellant moved for a new trial, basing his motion upon three general grounds: First, that the court erred in refusing to grant the motion of the appellant for dismissal of the action, made at the close of plaintiff's case; second, that the evidence was insufficient to sustain the verdict; and, third, the court erred in its charge to the jury. The court denied this motion, and the defendant Frank Coykendall appeals.

The motion to dismiss was not renewed at the close of the case, nor was a motion made for judgment notwithstanding the verdict. Hence we do not consider this ground. See Carson State Bank v. Grant Grain Co. et al., 50 N. D. 558, 197 N. W. 146.

This action is based on the theory of defamation of plaintiff's title to real property and the resulting damages. Plaintiff had no record title, when deed to Ella Coykendall was given and recorded, and the only acts charged which can be said to defame title are the placing on record of a deed to Ella Coykendall and a notice to the elevators that the landlord's share of the crop belonged to her. This notice necessarily implied that the plaintiff was not the owner of such crop.

The defendants are brother and sister, and are uncle and aunt of the plaintiff, and are so designated in this opinion. The plaintiff is the sister of Harry Coykendall. The evidence shows that Harry sold the land in question to his sister, and on December 30, 1926, gave her a deed to the land, which deed was not filed for record until July 15, 1927. Ten days before she filed her deed Harry deeded the land to his aunt, and this deed was filed for record July 7, 1927.

[2] Slander of title is a false and malicious statement, oral or written, made in disparagement of a person's title to real or personal property, and causing him special damage. See Burkett v. Griffith, 90 Cal. 536, 27 P. 527, 528, 13 L. R. A. 707, 25 Am. St. Rep. 151. It is a figure of speech applicable to title, where special damage results. Kendall v. Stone, 5 N. Y. 14, 15.

[3] In determining this appeal, we take the testimony offered by the plaintiff in its most favorable aspect toward her case, even though much of it is controverted by the appellant. Such testimony shows that in November, 1925, the plaintiff was negotiating with her brother for the purchase of his land, and these negotiations were carried on in the home of her aunt. The plaintiff agreed to buy the land for $2,500, had a mortgage for $1,000 placed thereon, gave the major portion of the proceeds to her brother, agreed to deliver to him a share of the crops until the purchase price was paid, and assumed some of his debts. The plaintiff expressly states that these negotiations were not carried on in the presence of her uncle. She claims her uncle knew she was trying to buy the land, but she admits she never told him she had bought it. She states that the reason she did not put her deed on record is she did not have the money to pay the taxes, and, when her uncle paid the taxes and put the aunt's deed on record, then she put her deed on record.

In the early part of 1927 one Brending, who held a mortgage against the land, told the appellant that the plaintiff owned the land. He testified at first that in September, 1927, he had a talk with the defendant, and at that time told him the plaintiff had a deed to the land. This would be two months after Harry deeded the land to his aunt, and therefore showed no knowledge on the part of the appellant at the time he got the deed for his sister. However, the same witness says, later on, that it was in the first part of 1927 he had this conversation. He admitted his recollection was somewhat hazy, and the only thing he was certain about was the conversation, that he could not tell the exact time,...