Coyle v. Due
| Decision Date | 23 October 1914 |
| Citation | 28 N.D. 400,149 N.W. 122 |
| Parties | COYLE v. DUE. |
| Court | North Dakota Supreme Court |
A judgment of dismissal “with prejudice to the starting of another action on the cause of action set forth in the complaint,” which is rendered in an action of partition and which action of partition is based upon the theory that the defendant will stand by and recognize an oral agreement to settle a dispute by granting a joint interest in a tract of land, is not, after a repudiation of such oral agreement on the trial of the first action, a bar to a subsequent action to quiet title and determine adverse claims, such subsequent action being based upon the original controversy, which the oral agreement might, if recognized, have settled and disposed of, and which is, to all intents and purposes, an action to have a deed declared to be a mortgage, to obtain a finding that such mortgage has been paid, and to quiet the title of the said land from the cloud thereon.
To constitute an estoppel by judgment, the causes of action in the former and subsequent actions must be identical.
The true test of the identity of the causes of action for the purpose of determining res adjudicata is the identity of the facts essential to their maintenance.
When it is not certain that the same question was determined in favor of the party in another action who relies upon the judgment therein as conclusive on such question, the judgment is not final on that point.
A receipt which is worded “Received of A. full settlement of contract made by A. for S. W. 1/4 S. W. 1/4 Sec. 22 []” is open to explanation and proof and is not conclusive under the terms of section 7316, R. C. 1905, which provides that: “The following presumptions and no others are deemed conclusive: * * * (2) The truth of the facts from a recital in a written instrument”-as such instrument or receipt recites no facts and the nature and kind of settlement is nowhere stated.
Appeal from District Court, Ward County; Leighton, Judge.
Action by John J. Coyle against L. M. Due, to quiet title and determine adverse claims. From judgment for plaintiff, defendant appeals. Affirmed.
Facts.
As we view the evidence in this case and as the trial court undoubtedly found (the findings are not specific and do not go into details) John J. Coyle, the plaintiff and respondent, on or about October 1, 1908, desired to purchase a quarter section of land in Williams county, known as the Rooney land, but lacked the money requisite for the purpose. He therefore went to the defendant and appellant, who was the president of the Scandinavian American Bank of Minot, N. D., and gave the banker his promissory note for $250, bearing interest at the rate of 12 per cent. per annum and a mortgage upon another farm belonging to the plaintiff near Minot, and entered into a written agreement to the effect that:
The said sum of $200 was paid to Coyle by the said Due, and with the said loan and with $234 derived from other sources plaintiff and respondent then purchased the said Rooney tract and took title thereto jointly in the names of both himself and the said Due. Thereafter the said Due inspected the land and notified Coyle that he did not desire the half interest, and would expect the said Coyle to pay the said note of $250. In April, 1909, the respondent, Coyle, being about to leave the state on an extended visit, executed and delivered to the said Due a quitclaim deed to the said land in order to assist the said Due in making a trade of the said land so that he could get his money out of it, and as additional security for the said $200 loan. Later, and in August, 1909, Due, without the respondent's knowledge, traded the so-called Rooney land for three residence lots in Eastwood Park addition to the city of Minot, taking title to the said lots in the name of himself alone, the Rooney land at the time of said transfer being worth $2,000 and being incumbered for $650. Later, and on October 27, 1910, Due sold one of these lots (lot 10, block 7) to a relative of his wife for the sum of $175, the lot at the time being worth some $800. Prior to such sale, however, and on June 30, 1910, and at which time the respondent, Coyle, first learned of the trade and sale aforesaid, and during which interim the appellant for and on account of the Scandinavian Bank of Minot had repeatedly demanded payment from the respondent of the $250 note, the said respondent told the appellant that he wanted to pay him the $250, and wanted a quitclaim deed of the farm near Minot, and Due told him that it would be all right, and that if Coyle would pay him $100, he would give him back all of his papers, and as soon as a lawsuit which was pending with a third party in relation to the lots traded for was over, he would deed him a half interest in the said lots, and that Coyle said “that sounds all right to me,” and thereupon paid the $100 and was given the $250 note and a release of the mortgage on the farm south of Minot, and in turn gave to Due the following receipt:
Later and on October 16, 1911, the appellant having, after the settlement of the lawsuits aforesaid, refused to deed to the respondent the half interest in the said lots, the respondent commenced an action in partition against the appellant for a division of the said lots. On the trial of this action the defendant Due repudiated and denied the oral agreement of June 30, 1910, and denied any interest or estate of respondent in the real estate in controversy, and thereupon the respondent moved the court for an order dismissing the action and it was “ordered, adjudged and decreed * * * that the above be and the same hereby is dismissed, with prejudice to the starting of another action on the same cause of action set forth in the complaint.” Later the plaintiff and respondent herein commenced the present action, which is a statutory action to determine adverse claims and to quiet title. In this action judgment was entered for the plaintiff, and the defendant has appealed to and asked for a trial de novo in this court.
Halvorson & Wysong, of Minot, for appellant. George A. McGee and Coyle & Herigstad, of Minot, for respondent.
BRUCE, J. (after stating the facts as above).
[1] The first question to be determined is whether a judgment of dismissal, “with prejudice to the starting of another action on the cause of action set forth in the complaint,” which is rendered in an action of partition, and which action is based upon the theory that the defendant will stand by and recognize an oral agreement to settle a dispute by granting a joint interest in a tract of land, is a bar to a subsequent action after a repudiation of such oral agreement on the trial of the first action, and which subsequent action is based upon the original controversy which the oral agreement, might, if recognized, have settled and disposed of, and which is, in all intents and purposes, an action to have a quitclaim deed declared to be a mortgage, to obtain a finding that such mortgage has been paid, and to quiet the title of the said land from the cloud thereon. We are of the opinion that there was no legal bar to the present action, and that the dismissal of the former action was in no wise res adjudicata. The causes of action were not the same.
[2][3][4] To constitute an estoppel by judgment, the cause of action in the former and subsequent proceeding must be identical. Stitt et al. v. Rat Portage Lumber Co., 101 Minn. 93, 111 N. W. 948.
“The true test of the identity of the causes of action for the purpose of determining res adjudicata is the identity of the facts essential to their maintenance.” Harrison v. Remington Paper Co., 140 Fed. 385, 72 C. C. A. 405, 3 L. R. A. (N. S.) 954, 5 Ann. Cas. 314;Wells Stone Merc. Co. v. Aultman M. & Co., 9 N. D. 520, 84 N. W. 375;Linne et al. v. Stout et al. 44 Minn. 110, 46 N. W. 319;Bigley et al. v. Jones, 114 Pa. 510, 7 Atl. 54.
“When it is not certain that the same question was determined in favor of the party in another action who relies on the judgment therein as conclusive as to such question, the judgment is not final on that point.” Fahey v. Esterley Mach. Co., 3 N. D. 220, 55 N. W. 580, 44 Am. St. Rep. 554.
Applying these tests it is clear to us that no estoppel by judgment has been proved.
It is quite clear to us, indeed, that the Code of North Dakota, in providing specifically for the action of partition in sections 7404-7452, R. C. 1905, and for the action to determine adverse claims and quiet title in sections 7519-7537, R. C. 1905, recognizes the existence of the two...
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Karlinski v. P. R. & H. Lumber & Constr. Co.
...operates as an estoppel only as to those matters or questions therein litigated and determined. 15 R.C.L. 972; 34 C.J. 863; Coyle v. Due, 28 N.D. 400, 149 N.W. 122. The evidence shows that the contract covered the building of a complete new addition ten by twenty feet, the repairing and alt......