Chilson v. The Bank of Fairmount
| Decision Date | 17 November 1899 |
| Citation | 81 N.W. 33,9 N.D. 96 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Sauter, J.
Action by John J. Chilson against the Bank of Fairmount. Judgment for plaintiff, and defendant appeals.
Affirmed.
W. E Purcell, for appellant.
Freerks & Freerks, for respondent.
This action was originally instituted in a Justice's Court of Richland county, in which court the plaintiff secured a judgment. Defendant took an appeal to the District Court where, upon a retrial upon the same issues and under the same pleadings, the plaintiff was again successful, and secured a verdict for the amount demanded in his complaint, and judgment was ordered and entered therein. A motion for a new trial was made and overruled. The motion was based upon a settled statement of the case, in which is embodied a specification of some thirty-six alleged errors of law occurring at the trial as the grounds of said motion. This appeal is from the order refusing to grant a new trial and from the judgment. In this court counsel for appellant urges but a portion of the alleged errors as grounds for asking that the judgment of the District Court be reversed. These only will be considered.
It is necessary, first, to ascertain what the issues were which were submitted for the determination of the jury, in order to properly consider the errors which are urged as having occurred at the trial of the case. The complaint, in substance, alleges that in the year 1893 the plaintiff was the owner of a certain quarter section of land in Richland county; that he executed a mortgage thereon to one A. C Waterman, to secure an indebtedness to the latter of $ 600 that thereafter, to further secure such indebtedness, he executed and delivered to the said Waterman a quitclaim deed to said premises, upon the agreement and understanding that, upon the payment of the debt secured, the land was to be reconveyed to plaintiff; that the defendant had knowledge and notice of such agreement; that on May 14, 1898, thereafter, the said Waterman executed and delivered a quitclaim deed of said land to one Cox, the defendant's cashier; that at the time of the conveyance from said Waterman to defendant there was an agreement entered into between plaintiff and defendant that said defendant would reconvey to plaintiff upon payment to it of the sum due upon the Waterman mortgage, in pursuance of the original contract between plaintiff and Waterman, and, further, that, pending such redemption, the plaintiff was to pay a reasonable rent for the land, and that such sums as should be paid as and for rent were to be refunded in case the mortgage debt should be paid; that in October, 1898, the defendant received as rent the sum of $ 105; that defendant then again agreed in writing to refund the sum so paid upon payment of the mortgage debt; that on December 5, 1898, the plaintiff paid to the defendant the sum of $ 728, the amount due upon the mortgage debt, and demanded payment of the $ 105 received by defendant as aforesaid, and was refused. The answer denies that the plaintiff has been the owner of the land in question at any time since November 10, 1893, and alleges that on that date the plaintiff conveyed his entire interest therein to A. C. Waterman; that the said Waterman, as absolute owner thereof, conveyed the same to the defendant on May 14, 1898, by quitclaim deed; and denies both knowledge or notice of the agreement alleged in the complaint, and avers that the defendant was thereafter the absolute owner in fee simple of said premises. Defendant admits the payment of $ 80 upon rent, but denies the payment of any greater sum, and denies that it ever agreed to refund such payments. Further answering, the defendant alleged that on December 1, 1898, it was agreed between the plaintiff and defendant that, if plaintiff would furnish a purchaser for said land who would pay defendant the amount of the mortgage debt, the plaintiff might have all of the money realized above that required to pay the debt; that the plaintiff did furnish a purchaser, one Houston, to whom defendant delivered a conveyance of said land, and from whom it received the amount of mortgage debt, to-wit: $ 728; that the deed so executed and delivered to Houston was based upon the consideration of the sum so paid, and plaintiff's agreement that defendant might retain in addition thereto the $ 105 theretofore received as rent. Briefly, plaintiff's position is that it paid to the defendant $ 105, which sum the defendant agreed to repay upon payment of the mortgage debt, and that said debt was paid. Defendant's position is that plaintiff agreed that it might keep the $ 105 as part consideration for the deed to Houston. Upon these issues so framed by the pleadings the case...
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