Casseday v. Robertson
| Decision Date | 14 March 1910 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ward county; Goss, J.
Action by David W. Casseday and Milburn Sandefur, for the use and benefit of Amelia E. Kinslow, against George A. Robertson. From a judgment in favor of plaintiffs, defendant appeals.
Modified and affirmed.
Judgment affirmed. Appellant recovered costs.
Palda & Burke, for appellant.
Gray Keith & Gray, for respondent.
This is an action to determine adverse claims to the west 15 feet of lot 4, block 1, in the city of Kenmare, and to recover damages for the withholding thereof. From a judgment in favor of plaintiffs, defendant appeals to this court and desires a review of the entire case.
The facts are as follows: The Soo Railway Company obtained title to the town site of the city of Kenmare, by filing script covering the same, some time before the year 1898. That patent was issued on November 25, 1900. That not later than July 1, 1899, the interest of the railway company was transferred to plaintiff, David W. Casseday. That prior to that time the railway company, one W. T. Smith, and one E. C Tolley entered into an agreement, whereby the town site of Kenmare should be their joint property in proportions, as follows: Railway company one-half interest; Tolley and Smith each one-fourth. Casseday succeeded to the railway company's interest; the title to remain in the railway company and Casseday as its successor until such time as the patent should be issued and Tolley and Smith should pay the railway company their proportionate share of the cost of the script and expenses. That on or about the 12th day of June 1901, the said Casseday, pursuant to the agreement, transferred one-fourth of the land to W. T. Smith and one-fourth to Milburn Sandefur, who held the title for E. C. Tolley. That the tract in controversy was in the transfer to Sandefur. That on the 6th day of January, 1905, Sandefur conveyed the tract in controversy to plaintiff Kinslow. That Tolley was the agent of the railway company, and later the agent of Casseday. That on or about March 1, 1897, appellant, Robertson, went into possession of lots 4 and 5 in block 1 in the city of Kenmare. That the possession was peaceable and with the consent of E. C. Tolley, in accordance with the usual custom of the town-site owners allowing persons desiring the lots to go into the possession of the same with the understanding that, as soon as the patent was issued, deeds would be delivered. That appellant's possession of lot 5 and the west 15 feet of lot 4 continued peaceable, open, and notorious until the fall of 1901 or 1902, when a notice to vacate the premises in controversy was served upon him. That he, however, remained in continuous possession, having built a lean-to 12 1/2x40 feet, in which he and his family have always lived while in Kenmare on the west 15 feet of said lot 4, which lean-to adjoins his store on lot 5; the same having been built according to the agreement with Tolley during the year 1897 or 1898. That appellant at no time paid rent for the premises in controversy, but always paid the taxes. Appellant claims that at the time he made the agreement for lots 4 and 5 he made the agreement for lot 6 adjoining. This plaintiffs deny, claiming that some time after appellant went into possession of lots 4 and 5 he surrendered possession of lot 4 and took possession of lot 6 in place thereof. That during the month of February or March, 1901, plaintiff Casseday came to Kenmare for the purpose of making a settlement with his co-owners and the purchasers of lots, at which time the price of appellant's lots was agreed upon at $ 150 each. That shortly thereafter, and in March of the same year, the defendant, who was in the general mercantile business, gave credit on his books to E. C. Tolley in the sum of $ 375, which appellant claims was the purchase price of lots 5 and 6 and the west 15 feet of lot 4 in said block 1. That during the summer and fall of 1901, merchandise was sold by appellant to E. C. Tolley and W. T. Smith and charged to their accounts as follows: Tolley, $ 332.88; Smith, $ 55.11. That during the summer of 1901 appellant, about the month of August, drilled a well and excavated a basement under his store building on lot 5 and the lean-to on the 15 feet in dispute and built a stone foundation thereunder; the value of which improvements on the 15 feet being: Well, $ 150; excavating and foundation, about $ 500. That during the summer of 1901 the husband of plaintiff, Kinslow, who owned lot 3 in said block 1 and had a hotel thereon, purchased the east 10 feet of lot 4.
Appellant specifies numerous errors of law, and also specifies ultimate facts which he claims to be established by the evidence in the case. Under our view of the case, a correct decision depends wholly on questions of fact. It is well settled that a party who, under an oral contract, has purchased real estate, goes into possession, made valuable improvements thereon, and paid the purchase price, is entitled to specific performance of the contract. Thomas v. Dickinson, 12 N.Y. 364; Kofka v. Rosicky, 41 Neb. 328, 59 N.W. 788, 25 L.R.A. 207, 43 Am. St. Rep. 685; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35; 8 L.R.A. (N. S.) 877, note; 3 L.R.A. (N.S.) 790, note. The part performance on the part of the appellant, Robertson was sufficient to take the contract out of the statute of frauds. Engholm v. Ekrem, supra; Muir v. Chandler, 16 N.D. 551, 113 N.W. 1038; Roberts v. Templeton, 48 Ore. 65, 80 P. 481, 3 L.R.A. (N. S.) 790.
E. C. Tolley, a witness for plaintiffs, testified that the defendant prior to 1901, selected lots 4 and 5 in block 1 as two lots that he wanted to buy when title would be secured and when the owners were ready to transfer the property, and that later, and before the title had been acquired, the appellant selected lots 5 and 6 instead of lot 4. He also testified: That about February 18, 1901, he and plaintiff Casseday went to appellant and arranged to deed him lots 5 and 6, and at the same time arranged to deed to Kinslow, husband of plaintiff Kinslow, lot 3 and 10 feet off the east side of lot 4, and at the same time offered to sell appellant the 15 feet in controversy. That he would not take it, and that afterwards a deed was delivered to appellant for lots 5 and 6 and to Kinslow for lot 3 and the east 10 feet of lot 4. He also testified that afterwards, and during the same season, appellant asked permission to occupy the 15 feet, and offered to pay him a rental or the taxes for the time that he was on it. That appellant continued to occupy it and built the stone wall hereinbefore mentioned. That in the fall of 1901 he served notice on appellant to vacate, and again in the winter of 1905, after the 15 feet had been sold and conveyed to the plaintiff Kinslow. That appellant refused to remove, and still occupies the lean-to on the 15 feet, and has occupied it since he built it in the early history of Kenmare. Witness also testified that some time after appellant got the deed to lots 5 and 6 he wanted to buy this 15 feet, stating that his wife wanted it. Witness went to their residence and had a talk with her relative to it. It is also in evidence that the appellant, Kinslow, and Tolley measured off Kinslow's 10 feet and ran a line between the east 10 feet and the west 15 feet of lot 4, and that Kinslow erected a fence on that line.
Plaintiff Casseday's evidence was taken by deposition. He testified: That he was in Kenmare in February or March, 1901 to close up his interest in the town site. That he saw appellant, made arrangements with him for lots 5 and 6, and asked him if he wanted to buy the west 15 feet of lot 4. Appellant refused, stating that he had land enough. Thinks he sold lots 5 and 6 for $ 250 each, but is not positive. That appellant was in possession of the west 15 feet of lot 4. That he afterwards deeded lots 5 and 6 to appellant. Appellant, in his own behalf, testified that about March 1, 1897, he selected lots 4, 5 and 6 of block 1, under an oral contract with E. C. Tolley, who told appellant to go ahead and build whatever he wanted to build, and when the time came, and they got their title, they would close the deal. That appellant went into possession of these three lots and erected first a store building on lot 5 and a lean-to on the west 15 feet of lot 4, in which he and his family lived from the time it was erected until the time of the trial. That along in the spring of 1901, Tolley and plaintiff Casseday came into appellant's store and said they wanted to settle for the three lots, 4, 5, and 6, at $ 150 each, and which was satisfactory to appellant, but that Tolley told appellant he had to give the east 10 feet of lot 4 to Kinslow, and appellant consented thereto. That afterwards he and Tolley took a tapeline and...
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