Comer v. Thompson

• Decision Date: 08 September 1919
• Citation: 174 N.W. 212,43 N.D. 172
• Parties: COMER et al. v. THOMPSON et al.
• Court: North Dakota Supreme Court

43 N.D. 172

174 N.W. 212

COMER et al.

v.THOMPSON et al.

Supreme Court of North Dakota.

June 27, 1919.

Rehearing Denied Sept. 8, 1919.

Syllabus by the Court.

In this case the several parties plaintiff and defendant were small creditors of an insolvent estate-a half section of land well mortgaged. At their request Thompson, one of the creditors, took title in his own name, took charge of the estate, and pursuant to a written agreement he sold it at $34.50 an acre-a fair and reasonable price-so that each party received and retained his advances with 33 per cent. on his worthless claim. The findings of fact and conclusions of law are well sustained by the evidence.

Additional Syllabus by Editorial Staff.

Where there was only one defense and one trial, items of costs allowed to three several parties should be stricken, and no costs allowed except to the prevailing defendants.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by J. W. Comer and others, individually, and in behalf of all others similarly interested, against T. A. Thompson, individually, and as trustee, and E. O. Stoudt and others. From a judgment for defendants quieting their title to land, plaintiffs appeal. Modified and affirmed.

Grace, J., dissenting.

Barnett & Richardson, of Fargo, for appellants.

Spalding & Shure, of Fargo, for respondents.

ROBINSON, J.

[1] This is an appeal from a judgment quieting the title of T. A. Thompson and E. O. Stoudt to a half section of land in town 142, range 54. In 1914 one Waldorf died leaving no property except written contracts with Mr. Harvey and Mr. Parsons for the purchase of said land. It was in process of foreclosure on a mortgage for about $5,000. Waldorf left small debts due and owing each of the parties to this action. To obtain payment, in whole or in part, the several creditors of Waldorf took over the land contracts and the title acquired by a foreclosure of the mortgage and took title in the name of T. A. Thompson, and it was in writing agreed that Thompson and each and every one of the several parties should try to obtain a purchaser for the land so as to pay each party his advances with 33 1/3 per cent. on his claim. In time Thompson obtained quitclaim deeds from the plaintiffs and sold the land to Stoudt, retaining a half interest. The sale was made at $34.50, from which each party received the amount of his advances with 33 1/3 per cent. on his original claim. Thompson did all, or nearly all, the work and made considerable advances without making any charge for the same. In that way each party plaintiff received one-third of the debt which was practically worthless. The defendants owned the greater part of the claim against the Waldorf estate. Without the least objection the...