Dahl v. Stakke

• Decision Date: 11 August 1903
• Citation: 96 N.W. 353,12 N.D. 325
• Court: North Dakota Supreme Court

96 N.W. 353

12 N.D. 325

HANS C. DAHL v. ANDREW STAKKE AND EDWARD J. STAKKE

Supreme Court of North Dakota

August 11, 1903

Appeal from District Court, Cavalier county; W. J. Kneeshaw, J.

Action on purchase money notes by Hans C. Dahl against Andrew J Stakke and another. Judgment for plaintiff, and defendants appeal.

Reversed.

Judgment reversed, a new trial granted, and cause remanded.

Halvor Steenerson, Charles Loring and Gordon & Lamb, for appellants.

The note described in the first cause of action is barred by the statute of limitations. Section 5201, Rev. Codes 1899. It was given July 1, 1891, and was payable December 1, 1892, and the action was not begun until November 27, 1899. The evidence showed no new promise, or payment to take it out of the statute. The claim of payment of $ 38.73 on October 12, 1893 is not proven. If not barred, on account of a payment of $ 163.73 on October 10, 1893, by Andrew J. Stakke, the verdict for the full amount sued for, is not sustained by the evidence, and the directed verdict for full amount sued for is certainly erroneous.

The consideration for both notes has wholly failed.

When plaintiff conveyed to defendant, the tracts of land described in the complaint, by warranty deed, there was a mortgage on each tract in contravention of the covenants of the deed each was foreclosed and title to the land perfected in third parties. This is undisputed.

By his objection to the introduction of evidence showing such mortgages, their foreclosure and perfection of title thereunder, in third parties, respondent is presumed to be acting under the obsolete rule, viz: "That where a promissory note was given for the purchase price of land conveyed by deed containing covenants of warranty and seizin and the title to the land failed, the covenants in the deed formed a sufficient consideration for the notes, and that the purchaser could not plead failure of title as a defense, but must pay the note and for his relief resort to a cross action on the covenants." This has now been superseded by the more salutary one "where there has been a total failure of title, to allow this to be set up in defense to an action upon the note as a total failure of consideration." 6 Am. & Eng. Enc. of Law (2d Ed.), 789. Nichols & Shepard Co. v. Soderquist, 80 N.W. 630; Durment v. Tuttle, 52 N.W. 909; Rice v. Goddard, 14 Pick. 296; Cook v. Mix, 11 Conn. 432; Fleetwood v. Brown, 9 N.E. 352, 11 N.E. 779; LaPene v. Delaporte, 27 La.Ann. 252.

Actual eviction not necessary, before the defense of failure of consideration can be interposed in an action on the notes given for the purchase price of land, where the purchaser has bought in an outstanding paramount title, against which his grantor has covenanted. 8 Am. & Eng. Enc. of Law (2d Ed.), 108.

Spencer & Sinkler, for respondent.

There was a directed verdict in the court below. There were no objections to evidence nor exceptions to the rulings of the court. No exceptions were taken to court's directing a verdict for the plaintiff. There is no exception in the entire record.

No exception being taken, there is nothing for the court to consider. Without an exception, the court cannot consider whether the trial court erred in directing a verdict. De Lendrecie v. Peck, 1 N.D. 422, 48 N.W. 342; Kirch v. Davies, 11 N.W. 689; Anstedt v. Bentley, 21 N.W. 807; Geisenger v. Beyl, 37 N.W. 423; Selby v. Detroit Ry. Co., 81 N.W. 106; London & Northwest American Mtg. Co. v. McMillan, 80 N.W. 841; Franzer v. Phillips, 77 N.W. 668; D. M. Osborne & Co. v. Williams, 35 N.W. 371; McCormack v. Phillips, 4 Dak. Ter. 506, 34 N.W. 39; Lomstead v. Nat'l Life Ins. Co. 7 N.W. 403; McKinnon v. Atkins, 27 N.W. 564.

Appellants further contend that the consideration for the note sued on has wholly failed. Under the state of the record the court cannot examine the evidence to determine this point. If it could do so, plaintiff must still recover. A vendee cannot dispute his vendor's title nor the possession or right under which he enters, nor can he purchase an outstanding title to the exclusion of his vendor; if he does, such title inures to his vendor's benefit. Lacey v. Davis, 66 Am. Dec. 529; 25 Am. & Eng. Enc. of Law 707; 2 Desty on Taxation, 929; 29 Am. & Eng. Enc. of Law 127; Bond v. Montague, 54 S.W. 403; Curran v. Banks, 82 N.W. 247.

In an action for the purchase price of land by the vendor, against the vendee, the latter cannot defend for failure of consideration by reason of failure of consideration, on account of an outstanding paramout title in another, unless he has been evicted or shows the vendor to be insolvent. Proce v. Hubbard, 65 N.W. 436; Hefflin v. Phillips, 11 So. Rep. 730; Frank v. Riggs, 9 So. Rep. 359; Thompson v. Shepard, 5 So. Rep. 334; Elder v. Bank, 42 S.W. 124; Coleman v. Bank, 22 So. Rep. 84; Stave Co. v. Smith, 22 So. Rep. 275; Egan v. Yeaman, 46 S.W. 1012; Foster v. Lyons, 44 S.W. 625; Walker v. Arnold, 44 A. 351; Zerfing v. Seeling, 80 N.W. 140; Nathans v. Steinmeyer, 35 S.E. 733; Warren v. Clark, 24 S.W. 1105.

The pleadings must allege eviction by party having a paramount title. Jones v. Jones, 7 S.E. 886; Sedgwick v. Hollenback, 7 Johns. 346; Burke v. Beverage, 15 Minn. 160; Maybury v. Thornton, 1 S.E. 909.

If a grantor at the time of conveyance is in exclusive possession under claim of title, the covenant of seisin is not broken until the purchaser or those claiming under them are evicted by title paramount. Backers v. McCoy, 17 Am. Dec. 585; Devore v. Sunderland, 49 Am. Dec. 442.

A decree of foreclosure and sale does not constitute an eviction. Waldrons v. McCarty, 3 Johns. 236; Van Slyck v. Kimball, 8 Johns. 197; Miller v. Watson, 5 Cowen 190; Wagner v. Finnigan, 55 N.W. 1129.

OPINION

MORGAN, J.

On the trial in the District Court, the court directed a verdict in plaintiff's favor for the full amount claimed in the complaint. The defendants saved no exceptions to rulings made during the progress of the trial, and took no exception to the direction of a verdict in plaintiff's favor. The respondent now claims that this court cannot review any of the errors alleged to have been committed by the District Court, for the reason that no exceptions were taken to any of the rulings in the District Court. The appellants moved to set aside the verdict and for a new trial upon a settled statement of the case, and, among other grounds of such motion, specified that the evidence was insufficient to justify the verdict. The particulars wherein such evidence was insufficient to justify the verdict were pointed out and specified in such motion. The specifications of error in the statement of the case contained, among others, one that the court erred in directing a verdict in favor of the plaintiff. The question is therefore presented whether the sufficiency of the evidence to sustain the verdict can be reviewed in this court when no exception was taken to the direction of the verdict, but a motion for a new trial was made on the ground that the evidence is insufficient to sustain the verdict. Section 5463, Rev. Codes 1899, provides that the verdict of the jury and an order granting or denying a motion for a new trial are, among other matters, "deemed to have been excepted to, and the same may be reviewed both as to questions of law and the sufficiency of the evidence upon motion for a new trial, or upon appeal, as fully as if exception thereto had been expressly made." Section 5627 provides: "Upon an appeal from a judgment, the Supreme Court may review any intermediate order or determination of the court below, which involves the merits or necessarily affects the judgment appearing upon the record transmitted or returned from the district court, whether the same is excepted to or not."

This court held, in De Lendrecie v. Peck, 1 N.D 422, 48 N.W. 342, that the action of a trial court in directing a verdict cannot be reviewed on appeal when no exception was taken to such action. That is a correct statement of the law in cases where no subsequent proceedings were brought before the court to review the correctness of that ruling. In other words, the correctness of the trial court's rulings must be somewhere challenged in that court before the appellate court will review the erroneous ruling complained of. Kirch v. Davies (Wis.) 11 N.W. 689; McGary v. De Pedrorena, 58 Cal. 91 at 94. The case of De Lendrecie v. Peck, supra, goes further, however, and holds that the sufficiency of the evidence to sustain a verdict cannot be reviewed on appeal even when its correctness is challenged on a motion for a new trial based on the sufficiency of the evidence. We cannot follow that decision in so holding. To the direction of the verdict there was no exception. That fact rendered the ruling not reviewable as an error of law occurring at the trial. But the sufficiency of the evidence to justify the verdict was subsequently challenged on a motion for a new trial, in which the insufficiency of the evidence to sustain the verdict was urged as a ground for reviewing the evidence and granting a new trial. This motion was denied. The statute grants an exception to the ruling denying a new trial, and it is not therefore necessary that one be taken by the party. The order denying a new trial is an order involving the merits and necessarily affecting the judgment, and may be reviewed on an appeal from the judgment, whether excepted to or not, under section 5627, Rev. Codes 1899. A case in point is Morris v. National Pro. Society, 106 Wis. 92, 81 N.W. 1036, in which it is said: "It is true that no exception was taken to the denial of the motion to direct a verdict for defendant, but a motion was made to set aside the verdict and for a new trial, which was overruled, and it has been...