Cummings v. Duncan
| Decision Date | 25 January 1912 |
| Citation | 134 N.W. 712,22 N.D. 534 |
| Parties | CUMMINGS v. DUNCAN |
| Court | North Dakota Supreme Court |
Appeal from District Court, Steele county; Chas. A. Pollock, J.
From an order sustaining a demurrer to the answer, defendant appeals.
Affirmed.
Buttz & Sinness, for appellant.
W. J Courtney, for respondent.
This is an action to quiet title to a quarter section of real property in Steele county, as against a certain judgment held by defendant against one Henry J. Torkelson and claimed by the former to be a valid lien on such property. At the time such judgment was docketed and a transcript thereof filed in Steele county, Torkelson held an assignment of a certain executory contract for the sale and purchase of such premises theretofore entered into between the Dwight Farm and Land Company and one Amund Berg, by the terms of which the Land Company agreed to sell and Berg agreed to purchase such property. Subsequently Torkelson assigned his rights under such contract to one Taisey, who later and before the commencement of this action sold and assigned his interest to plaintiff. The above facts are substantially set forth in the answer, and defendant prays that such judgment be adjudged to be a lien on said land superior to plaintiff's rights therein. Plaintiff demurred to such answer on the ground that it fails to allege facts sufficient to constitute a defense which demurrer was sustained in the court below and defendant electing to stand on his answer, judgment was entered in plaintiff's favor. The appeal is from the order sustaining the demurrer. While perhaps not very material, it is proper to state that such answer nowhere alleges that any payments were ever made under such contract for deed by either Torkelson or his assignor, Berg, nor that either of them ever performed any of the stipulations in such contract to be kept and performed by the vendee thereunder. Neither does such answer allege any fact showing or tending to show that the land company surrendered possession of such land to its vendee, Berg, or that such contract entitled him or his assignee or successor in interest to the possession prior to full payment of the purchase price. Nor does the answer disclose that such contract was ever recorded.
The sole question presented for our determination on this appeal is whether, under these facts, the docketing of defendant's judgment created a lien in his favor on such land to the extent of Torkelson's interest therein. If so, then we understand it to be in effect conceded that plaintiff took whatever interest he subsequently acquired subject to such judgment lien. It must be conceded at the outset that Torkelson's interest in the land prior to full performance of the contract, and no such performance is alleged, was at the most a mere equitable estate, even though he was entitled to the possession. It has repeatedly been so held by this court, and appellant moreover does not question that such is the fact. His contention, in brief, is that the mere docketing of a judgment creates a lien on the equitable estate of the judgment debtor within the county under § 7082, Rev. Codes 1905. This statute, in substance, provides that a judgment directing the payment of money when docketed "shall be a lien on all the real property, except the homestead, in the county where the same is docketed, of every person against whom any such judgment shall be rendered." Appellant's contention, if sound necessitates a holding therefore that at the date this judgment was docketed or subsequent thereto this land was the real property of the judgment debtor, Torkelson. Numerous authorities are cited by appellant's counsel in support of their contention, but we find none of them in point under a statute like ours. Among others they cite Woodward v. McCollum, 16 N.D. 42, 111 N.W. 623; Wadge v. Kittleson, 12 N.D. 452, 97 N.W. 856; Clapp v. Tower, 11 N.D. 556, 93 N.W. 862, and Salzer Lumber Co. v. Claflin, 16 N.D. 601, 113 N.W. 1036. But these cases merely announce the equitable relationship to the realty of the vendor and vendee under such contracts, and they furnish no light on the question here involved. This is clearly apparent from the opinions in those cases. In Miller v. Shelburn, 15 N.D. 182, 107 N.W. 51, this court clearly distinguishes the equitable from the legal relationship of the parties to such contracts, in the following language:
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