Donovan v. Dickson

• Decision Date: 09 July 1917
• Docket Number: 1915
• Citation: 164 N.W. 27,37 N.D. 404
• Court: North Dakota Supreme Court

164 N.W. 27

37 N.D. 404

E. I. DONOVAN v. W. B. DICKSON et al

No. 1915

Supreme Court of North Dakota

July 9, 1917

Appeal from the District Court of Cavalier County, C. M. Cooley, J.

Affirmed.

Judgment of the District Court affirmed, with costs.

Thomas Devaney and W. B. Dickson, for appellants.

A judgment or decree is res judicata pending an appeal. No proceedings under a judgment or decree shall be stayed unless supersedeas bond is filed, and no appeal or stay shall vacate or affect such judgment or order. Watson v Richardson, 110 Iowa 698, 80 Am. St. Rep. 331, 80 N.W 416, and cases cited.

The debtor upon whom rests the ultimate obligation to discharge the debt cannot by his payment acquire any right of subrogation. A purchaser cannot be subrogated to the benefit of an encumbrance which he has agreed to pay. Birke v Abbott, 103 Ind. 1, 53 Am. Rep. 474, 1 N.E. 485; Sheldon, Subrogation, § 46; Pom. Eq. Jur. § 1016 and note; Carlton v. Jackson, 121 Mass. 592; Willson v. Burton, 52 Vt. 394; Heim v. Vogel, 69 Mo. 529; Harris, Subrogation, pp. 111, 112, §§ 151, 815, and notes; Guckenheimer v. Angevine, 81 N.Y. 394; Curtiss v. Howell, 39 N.Y. 215; Cobb v. Hatfield, 46 N.Y. 533, and cases cited.

"A tort-feasor cannot make his own wrongful act the basis of an equity in his own favor." Rowley v. Towsley, 53 Mich. 329, 19 N.W. 20.

"The fact that the loss of one who seeks to be protected by the application of the doctrine of subrogation arose from his own negligence will be fatal to his claims." Sheldon, Subrogation, 2d ed. P 43; Conner v. Welch, 51 Wis. 431, 8 N.W. 260; Rice v. Winters, 45 Neb. 517, 63 N.W. 830; German Bank v. United States, 148 U.S. 573, 37 L.Ed. 564, 13 S.Ct. 702; United States Casualty Co. v. Bagley, 129 Mich. 70, 55 L.R.A. 616, 95 Am. St. Rep. 424, 87 N.W. 1044, and cases cited; Lewis v. Holdrege, 56 Neb. 379, 76 N.W. 890.

"A valid judgment for plaintiff finally negatives every defense that might and should have been raised against the action for the purpose of every subsequent suit between the parties and their privies in reference to the same matter."

"The assignees of a contract are barred by the rule of res judicata." Isensee v. Austin, 15 Wash. 352, 46 P. 394; Hansbrough v. Peck, 5 Wall. 497, 18 L.Ed. 520, 524, and Rose's Notes to same; Southern P. R. Co. v. Allen, 112 Cal. 455, 44 P. 796; Way v. Johnson, 5 S.D. 237, 58 N.W. 552.

"Where the original declaration fails to state a cause of action and by amendment a new cause of action is introduced after the time fixed by the Statute of Limitations for bringing suit has expired, a plea of the Statute of Limitations is good." Lake Shore & M. S. R. Co. v. Enright, 227 Ill. 403, 81 N.E. 374; Bahr v. National Safe Deposit Co. 234 Ill. 101, 84 N.E. 717; Walters v. Ottawa, 240 Ill. 259, 88 N.E. 651; Powers v. Badger Lumber Co. 75 Kan. 687, 90 P. 254.

After the statute has run, an amended complaint which for the first time states a cause of action cannot escape the bar of the statute by being filed as an amendment. Missouri, K. & T. R. Co. v. Bagley, 3 L.R.A. (N.S.) 259, and note, 65 Kan. 188, 69 P. 189; Clark v. Oregon Short Line R. Co. 38 Mont. 177, 99 P. 298.

An amendment, though properly allowed, does not relate back to the date of bringing the suit for the purpose of determining questions of limitations. An amendment which introduces a cause of action barred is ineffectual to avoid the bar of the statute. Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 24 L.R.A. 141, 4 Inters. Com. Rep. 683, 41 Am. St. Rep. 278, 37 N.E. 247; Melvin v. Hegadorn, 87 Neb. 398, 127 N.W. 139; Box v. Chicago, R. I. & P. R. Co. 107 Iowa 660, 78 N.W. 694; Pratt v. Davis, 105 Mich. 499, 63 N.W. 506; Nugent v. Adsit, 93 Mich. 462, 53 N.W. 620; Wingert v. Carpenter, 101 Mich. 395, 59 N.W. 662; Flint & P. M. R. Co. v. Wayne Circuit Judge, 108 Mich. 80, 65 N.W. 583; Atchison, T. & S. F. R. Co. v. Schroeder, 56 Kan. 731, 44 P. 1093; Shane v. Peoples, 25 N.D. 188, 141 N.W. 737.

In view of the law as laid down by our own supreme court, the plaintiff is now estopped to say that there was a failure of consideration, but on the other hand he himself has failed. Rev. Codes 1899, § 3932; Block v. Donovan, 13 N.D. 1, 99 N.W. 72; Comp. Laws 1913, § 6865; Civ. Code, § 3050; 3 Pom. Eq. Jur. 1260, and note; Merrill v. Merrill, 103 Cal. 287, 35 P. 768, 37 P. 392; Way v. Johnson, 5 S.D. 237, 58 N.W. 552.

"Rescission destroys the contract ab initio and leaves the parties in the same situation as if no contract had ever been made. Under these circumstances there can be no lien." Davis v. William Rosenzweig Realty Operating Co. 20 L.R.A. (N.S.) 175, and note on p. 181, 192 N.Y. 128, 127 Am. St. Rep. 890. 84 N.E. 943; Satterlee v. Cronkhite, 114 Mich. 634, 72 N.W. 616.

"Proceedings subsequent to the record are not before the court, and cannot be considered." Edwards v. Eagles, 15 N.D. 150, 107 N.W. 43; Weicker v. Stavely, 14 N.D. 278, 103 N.W. 753; 2 Standard Enc. Proc. 248; Murry v. Burris, 6 Dak. 170, 42 N.W. 25; J. L. Gates Land Co. v. Olds, 112 Wis. 268, 87 N.W. 1088; O'Toole v. State, 105 Wis. 18, 80 N.W. 915; Finn v. Walsh, 19 N.D. 61, 121 N.W. 766; Berger v. Discher, 146 Wis. 170, 131 N.W. 444; Stoltman v. Lake, 124 Wis. 462, 102 N.W. 920; Miltimore v. Hoffman, 125 Wis. 558, 104 N.W. 841.

George M. Price, for respondent.

"Payments made by the defendant under his contract will stand as obligations against the plaintiff of the same character as when the contract was made." Donovan v. Dickson, 28 N.D. 229, 148 N.W. 547.

We claim in this case that payments made by appellant under the contract are obligations resting against the respondent. Comp. Laws 1913, subd. 2, §§ 5936, 7208; 6 Cyc. 306, 312, 313, 315; 18 Enc. Pl. & Pr. 772, 773, 858; 39 Cyc. 1345, 1355, 1377, 1378, 1380, 2028--2031; Warren v. Ward, 91 Minn. 254, 97 N.W. 886; Miller v. Shelburn, 15 N.D. 182, 107 N.W. 52; Reiger v. Turley, 151 Iowa 491, 131 N.W. 868; Lowry v. Robinson, 3 Neb. (Unof.) 145, 91 N.W. 174; Gillet v. Maynard, 5 Johns. 85, 4 Am. Dec. 329; Heilig v. Parlin, 134 Cal. 99, 66 P. 187; State v. Blize, 37 Ore. 404, 61 P. 736.

The rule at law that a party must lose all advantage gained by fraud, as well as the money which may have been paid out by him, does not apply in equity cases, where the party asking to set aside his purchase has been benefited by a discharge of encumbrances and the payment of debts. White v. Trotter, 14 Smedes & M. 30, 53 Am. Dec. 112.

In such cases the vendee who has paid out money and removed and paid encumbrances on the land has a lien upon the land for such amounts of money so paid. Griffith v. Depew, 3 A. K. Marsh. 177, 13 Am. Dec. 142; 6 Cyc. 343, and cases cited; Joyce v. Dauntz, 55 Ohio St. 538, 45 N.E. 900; Stewart v. Stewart, 90 Wis. 516, 48 Am. St. Rep. 949, 63 N.W. 887; Johnson v. Tootle, 14 Utah 482, 47 P. 1033; 37 Cyc. 378, 445; Comp. Laws 1913, § 6865.

Appellant in this case received the land with the benefit of the respondent's payments, and he is in the same position as he would be if respondent had paid the mortgage in full, instead of only in part. Code, § 7966.

"The rule that 'acquiescence in error takes away the right of objecting to it' is applicable to error of procedure. One who consents to an irregular method of amending a pleading cannot thereafter urge the irregularity as error." Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359.

"In considering the granting or refusing of amendments, the test is not whether the cause of action is changed in a technical sense, but whether the amendment should be allowed in furtherance of justice." Kerr v. Grand Forks, 15 N.D. 294, 107 N.W. 197.

The Statute of Limitations in such actions does not begin to run until the date of the final entry of judgment in the former action. 25 Cyc. 1200; First Nat. Bank v. Avery Planter Co. 69 Neb. 329, 111 Am. St. Rep. 541, 95 N.W. 622; Grant Twp. v. Reno Twp. 107 Mich. 409, 65 N.W. 377; Kennedy v. Stonehouse, 13 N.D. 232, 100 N.W. 259, 3 Ann. Cas. 217.

"A cause of action accrues when the person owning it first had legal right to sue upon it." McPherson v. Swift, 22 S.D. 165, 133 Am. St. Rep. 907, 116 N.W. 77; Elling v. Harrington, 17 Mont. 322, 42 P. 851; Lawrence v. Doolan, 68 Cal. 309, 5 P. 484, 9 P. 159.

One who believes he has title to lands, and under such belief and in good faith puts valuable and permanent improvements upon it, will be protected to the extent of such improvements. Hunter v. Coe, 12 N.D. 505, 97 N.W. 872; Parker v. Vinson, 11 S.D. 381, 77 N.W. 1023; Meadows v. Osterkamp, 13 S.D. 571, 83 N.W. 625; Bright v. Boyd, 1 Story, 478, Fed. Cas. No. 1,875; Luton v. Badham, 127 N.C. 96, 53 L.R.A. 338, 80 Am. St. Rep. 783, 37 S.E. 143; Herring v. Pollard, 4 Humph. 362, 40 Am. Dec. 653; Jackson v. Loomis, 4 Cow. 168, 15 Am. Dec. 565; McKelway v. Armour, 10 N.J.Eq. 115, 64 Am. Dec. 446; Valle v. Fleming, 19 Mo. 454, 77 Am. Dec. 557; Scott v. Dunn, 21 N. C. (1 Dev. & B. Eq.) 425, 30 Am. Dec. 181; Whitledge v. Wait, Sneed (Ky.) 335, 2 Am. Dec. 721; Dorer v. Hood, 113 Wis. 607, 88 N.W. 1010; Zwietusch v. Watkins, 61 Wis. 615, 21 N.W. 823; 39 Cyc. 1400, 1401; Shuman v. Willetts, 19 Neb. 705, 28 N.W. 301.

"One who pays to the owner any part of the price of real property under an agreement for the sale thereof has a special lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover back in case of the failure of consideration." Comp. Laws 1913, § 6865.

"So, too, the vendee's lien may attach where the contract has been mutually rescinded or rescinded by the vendor or by the purchaser under his right to do so." 39 Cyc. 39, 2032, 2034, 2039.

The Statute of Limitations did not begin to run as to the right to sue...