Coyle v. Due

• Decision Date: 14 September 1914
• Parties: JOHN J. COYLE v. L. M. DUE
• Court: North Dakota Supreme Court

149 N.W. 122

28 N.D. 400

JOHN J. COYLE v. L. M. DUE

Supreme Court of North Dakota

September 14, 1914

On petition for rehearing, October 23, 1914.

Appeal from the District Court of Ward County, Leighton, J.

Action to quiet title and determine adverse claims. Judgment for Plaintiff. Defendant appeals.

Affirmed.

Judgment affirmed. Appellant paid the costs and disbursements of this appeal.

Halvorson & Wysong, for appellant.

This cause is res judicata. The former action between the same parties and over the same subject-matter settled the identical questions and facts involved in this action. Lyon v. Perin & G. Mfg. Co. 125 U.S. 698, 31 L.Ed 839, 8 S.Ct. 1024; Hughes v. United States, 4 Wall 237, 18 L.Ed. 305; Tankersly v. Pettis, 71 Ala. 179; Story, Eq. Pl. 793; Adams v. Cameron, 40 Mich. 506; Thompson v. Clay, 3 T. B. Mon. 359, 16 Am. Dec. 108; Pelton v. Mott, 11 Vt. 148, 34 Am. Dec. 678; Stickney v. Goudy, 132 Ill. 213, 23 N.E. 1034; Kelsey v. Murphy, 26 Pa. 78; Foote v. Gibbs, 1 Gray, 412; Thurston v. Thurston, 99 Mass. 39; Durant v. Essex Co. 7 Wall. 107, 19 L.Ed. 154; Bigelow v. Winsor, 1 Gray, 301; Martin v. Evans, 85 Md. 8, 36 L.R.A. 218, 60 Am. St. Rep. 292, 36 A. 258.

When the decree of dismissal is unqualified, it is presumed to be an adjudication on the merits adversely to the complaint, and constitutes a bar to further litigation of the same matter between the same parties. Tankersly v. Pettis, 71 Ala. 179; Story, Eq. Pl. 793; Adams v. Cameron, 40 Mich. 506; Thompson v. Clay, 3 T. B. Mon. 359, 16 Am. Dec. 108; Pelton v. Mott, 11 Vt. 148, 34 Am. Dec. 678; Stickney v. Goudy, 132 Ill. 213, 23 N.E. 1034; Kelsey v. Murphy, 26 Pa. 78; Foote v. Gibbs, 1 Gray, 412; Thurston v. Thurston, 99 Mass. 39; 6 Enc. Pl. & Pr. 993.

Matters once determined by a court of competent jurisdiction can never be questioned. McNeely v. Hyde, 46 La.Ann. 1083, 15 So. 167.

This is true also of bills in chancery. Oxford's Case, 2 Smith Lead. Cas. p. 667, note; Wilcox v. Balger, 6 Ohio 406; Taylor v. Yarbrough, 13 Gratt, 183; Scully v. Chicago, B. & Q. R. Co. 46 Iowa 528; Adams v. Cameron, 40 Mich. 506; Cochran v. Couper, 2 Del.Ch. 27; Thompson v. Clay, 3 T. B. Mon. 359, 16 Am. Dec. 108; United States v. Arredondo, 6 Pet. 729, 8 L.Ed. 561; Waugh v. Chauncey, 13 Cal. 12.

Geo. A. McGee, and Coyle & Herigstad, for respondent.

In order for a second action to be res judicata, parties must be the same, facts must be same, points and questions raised and determined same, and the identity of the facts must clearly appear. This case is not res judicata. Woodward v. Northern P. R. Co. 16 N.D. 38, 111 N.W. 627; Harrison v. Remington Paper Co. 3 L.R.A.(N.S.) 954, 72 C. C. A. 405, 140 F. 385, 5 Ann. Cas. 314; Linton v. National L. Ins. Co. 44 C. C. A. 54, 104 F. 584; Lake County v. Platt, 25 C. C. A. 87, 49 U.S. App. 216, 79 F. 567; Southern Minnesota R. Extension Co. v. St. Paul & S. C. R. Co. 5 C. C. A. 249, 12 U.S. App. 320, 55 F. 690; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214; AEtna L. Ins. Co. v. Hamilton County, 54 C. C. A. 468, 117 F. 82; Nesbit v. Independent Dist. 144 U.S. 610, 36 L.Ed. 562, 12 S.Ct. 746; West v. Hennessey, 58 Minn. 133, 59 N.W. 984; Linne v. Stout, 44 Minn. 110, 46 N.W. 319; Stitt v. Rat Portage Lumber Co. 101 Minn. 93, 111 N.W. 948; Rossman v. Tilleny, 80 Minn. 160, 81 Am. St. Rep. 247, 83 N.W. 42; Fahey v. Esterley Mach. Co. 3 N.D. 220, 44 Am. St. Rep. 554, 55 N.W. 580; Gilman v. Gilby Twp. 8 N.D. 627, 73 Am. St. Rep. 791, 80 N.W. 889; Wells-Stone Mercantile Co. v. Aultman, M. & Co. 9 N.D. 520, 84 N.W. 375.

At law an absolute deed and a separate defeasance or agreement to recovery, executed at the same time as security for a debt, amount to a mortgage only. 1 Jones, Mortg. p. 178; Rogers v. Jones, 92 Cal. 80, 28 P. 97; Butman v. James, 34 Minn. 547, 27 N.W. 66; Brinkman v. Jones, 44 Wis. 498; Clark v. Landon, 90 Mich. 83, 51 N.W. 357; Nash v. Northwest Land Co. 15 N.D. 566, 108 N.W. 792; McClory v. Ricks, 11 N.D. 38, 88 N.W. 1042; 31 Cyc. 1445, 1446; Gower v. Andrew, 59 Cal. 119, 43 Am. Rep. 242; Russell v. Bradley, 47 Kan. 438, 28 P. 176; Largey v. Bartlett, 18 Mont. 265, 44 P. 962; Morrison v. Hunter, 74 Neb. 559, 105 N.W. 88; Lockhart v. Rollins, 2 Idaho 540, 21 P. 413, 16 Mor. Min. Rep. 16; Fisher v. Seymour, 23 Colo. 542, 49 P. 30; Kimball v. Ranney, 122 Mich. 160, 46 L.R.A. 403, 80 Am. St. Rep. 548, 80 N.W. 992; Dodge v. Black, 21 Ky. L. Rep. 992, 53 S.W. 1039.

BRUCE, J. GOSS, J., did not participate.

OPINION

Statement by

BRUCE J.

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, North Dakota, 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 "it is agreed upon by above-mentioned parties that L. M. Due has the option of taking one-half interest in the N.E. quarter of 9-155-97, which is brought this date from the original homesteader, B. W. Rooney, for the consideration of $ 200, and subject to a first mtg. only of $ 650 at 10% per annum, or taking the note of said J. J. Coyle for $ 250 secured by good collaterals if said L. M. Due does not upon inspection find said land good and level or desirable, L. M. Due has at this date furnished the purchase price for said land, $ 200, and if above mentioned land is to the satisfaction of said L. M. Due, he must at once return to said J. J. Coyle Quit Claim Deed of the SW of the SW Sec 22 N half of the NW quarter of Sec 27 and the SE of the NW quarter of 27, all in 152-84, which mentioned deed has been turned over to said L. M. Due as a guaranty that mentioned land is as described by said J. J. Coyle. It is further agreed upon that mentioned quitclaim deed, Minot, N.D. Oct. 1, 1908, shall be returned to said Coyle upon receipt of $ 250 if said L. M. Due does not prefer one-half interest in said land." 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 encumbered 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:

June 30, 1910. Received of L. M. Due full settlement of contract made by L. M. Due, for S.W. 1/4 S.W. 1/4 22, N. 1/2 N.W. 1/4, S.E. 1/4 N.W. 1/4 27-152-84, N.E. 1/4 9-155-97.

John J. Coyle.

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.

BRUCE, J. (after...