Bruegger v. Cartier

• Decision Date: 19 February 1915
• Citation: 151 N.W. 34,29 N.D. 575
• Parties: BRUEGGER v. CARTIER.
• Court: North Dakota Supreme Court

29 N.D. 575

151 N.W. 34

BRUEGGER

v.CARTIER.

Supreme Court of North Dakota.

Feb. 1, 1915.

Rehearing Denied Feb. 19, 1915.

Syllabus by the Court.

Plaintiff contracted to give good title to a tract of land which he had previously purchased from the Great Northern Railway Company under a deed containing the following reservation: “Reserving, however, to the St. Paul, Minneapolis & Manitoba Railway Company, its successors or assigns, for right of way or other railroad purposes, a strip of land 150 feet wide from the above-granted premises, where the lines of its road or any of its branches, or the line of any other railroad, or the branches thereof, now owned or operated, or which may hereafter be owned or operated, by it, is now located and constructed, or may hereafter be located and constructed.” When plaintiff tendered a deed to the premises, objection was made to his title upon the grounds that it was unmarketable by reason of the foregoing reservation. The balance of the purchase price was, however, deposited in a reputable bank, payable to the order of the plaintiff, when he should be able to give a proper title to the tract.

Defendant was not obliged to accept the title offered, even though it might prove ultimately to be good; but he was justified in demanding a title, not only good in fact, but one that was good beyond a reasonable doubt. Such reasonable doubt is one that would cause hesitation in the judicial mind before deciding it.

A clause in the contract whereby defendant agreed “that he has entered upon the above written contract, relying on his own knowledge of such premises, and not upon any representations made by the party of the first part, or by any other persons, touching the situation, character, or quality thereof,” does not mean that the defendant assumed the risks of title.

Plaintiff brings this action in equity to enforce a forfeiture of the contract for nonpayment of the balance of the purchase price which was deposited in the bank as aforesaid. Under the evidence, it is held that such deposit was sufficient, that no grounds of forfeiture existed, and that defendant is entitled to the relief demanded in his counterclaim.

Appeal from District Court, Williams County; Leighton, Special Judge.

Action by John Bruegger, as trustee of the Bruegger Mercantile Company, against Joseph Cartier. From judgment for plaintiff, defendant appeals. Reversed, with directions to enter judgment.George A. Gilmore, of Williston, and F. B. Lambert, of Minot, for appellant. George M. Moellring, of Ray, and D. C. Greenleaf, of Minot (John Carmody, of Hillsboro, of counsel), for respondent.

BURKE, J.

This litigation involves a tract of land situated within the limits of the city of Williston. The first instrument with which we are concerned is a deed from the St. Paul, Minneapolis & Manitoba Railway Company (now known as the Great Northern) to the plaintiff, which deed contained the following clause:

“Reserving, however, to the St. Paul, Minneapolis & Manitoba Railway Company, its successors or assigns, for right of way or other railroad purposes, a strip of land 150 feet wide from the above-granted premises, where the lines of its road or any of its branches, or the line of any other railroad, or the branches thereof, now owned or operated, or which may hereafter be owned or operated, by it, is now located and constructed, or may hereafter be located and constructed.”

This deed is dated July 20, A. D. 1898. After some preliminary negotiations, plaintiff made written agreement with the defendant, wherein he agreed to sell said tract to the defendant in consideration of the sum of $200, of which amount $140 was paid in cash and $60 was to be paid on the 24th of September, 1899, with interest. Said contract contained the provision that:

“In case the second party should fail to make the payments aforesaid, or any of them, eventually and upon the strict terms and times above limited, and likewise to perform, and complete all and each of its agreements and stipulations aforesaid, strictly and literally, without any failure or default, the time of payment being of the essence of this contract, then the party of the first part shall have the right to declare this contract null and void. * * *”

This contract is dated September 24, 1898. It appears without material controversy that, shortly before the $60 became due, defendant offered to pay the plaintiff said sum if he would furnish him a good title to the premises, but objected to the reservation for right of way hereinbefore set forth and to it alone; that Bruegger offered him a sufficient deed, but refused to take any steps towards further fortifying the title which he had received from said railway company; that thereupon defendant placed the $60, together with the full amount of interest due thereon, making a total of $64.80, in a reputable bank at Williston, for which he demanded and obtained the following receipt:

“Williston, N. D., August 30, 1899.

Received of Joseph Cartier sixty-four and eighty one-hundredths dollars to be delivered to Bruegger Mercantile Company upon receipt of a proper deed to his land.

[Signed] Williams County State Bank,

By W. H. Denny, Cashier.”

Plaintiff was notified of this deposit, and further notified that one Stewart, an attorney at Williston, had been chosen by defendant to pass upon said title, and that no deed would be accepted until the title had been approved by said attorney. As already stated, Bruegger refused to reinforce his title in any manner and later served notice of cancellation of said contract. This action is brought by Bruegger to enforce said...