Ellis v. George
| Decision Date | 01 November 1919 |
| Docket Number | 1915 |
| Citation | 175 N.W. 623,43 N.D. 408 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Morton County, Nuessle, Special Judge.
Order affirmed.
Affirmed.
Theodore Koffel, for appellant.
The term of the court in which the judgment had been rendered had expired, and therefore the same had become final, and the court could not vacate or amend it. Comp. Laws 1913, § 7354; Teller v. Wetherell, 6 Mich. 49; Marine Ins. Co. v. Hodgson, 7 Cranch, 332; Bronson v. Schulten 104 U.S. 410; Freeman, Judgm. §§ 94, 95.
There was no proof that the Pacific Silk Company was a corporation or an association, and no proof was offered that the summons in the present action had been served upon either of the defendants, C. L. George or the Pacific Silk Company. Keenan v. Daniels, 18 S.D. 102, 99 N.W. 853; Ryan v Simpson, 28 S.D. 157, 132 N.W. 691; Robert v. Enderlin Invest. Co. 21 N.D. 594, 19 L.R.A. 817, 132 N.W. 145.
The plaintiff cannot recover, having failed to establish the contract alleged and set out in his complaint. Ross v Ross, 127 N.W. 1035.
The plaintiff, having failed to establish his contract, was not entitled to any decree of the court, and specific performance is not a matter of right, but in the sound discretion of the court, and the court will refuse it and turn the party over to his remedy at law if not satisfied that it embodies the real understanding of the parties even where a binding contract is proven. Hathbone v. Groh, 100 N.W. 588; Cathro v. Gray, 66 N.W. 346; Hambleton v. Jameson, 143 N.W. 1010; Gummett v. Gintross, 43 N.W. 999; Hartman v. Streitz, 23 N.W. 505; Smith v. Bingham, 28 L.R.A.(N.S.) 522 and note; Horgan v. Russell, 43 L.R.A.(N.S.) 1150 and note, 140 N.W. 99; 29 Am. & Eng. Enc. Law, 2d 593.
W. H. Stutsman, for the respondent.
Third parties, having no interest therein, cannot collaterally attack a contract after its performance by the parties thereto, on the ground that it violated the Statute of Frauds. Lavender v. Hall, 60 Ala. 214; Chaffee v. Benoit, 60 Miss. 34.
A parol sale of land is only voidable by the parties to it. A stranger cannot interpose between them and avoid it, against their consent, merely because it is not written. Crawford v. Woods, 69 Ky. 200.
A vendor may, by pleading the Statute of Frauds, avoid a parol sale of land, or waive it and consummate his contract, and cannot be deprived of his right to do so by a stranger. Clary v. Marshall, 44 Ky. 266.
Where a verbal lease for ten years is made, and the lessor subsequently makes a written lease to a third party of the same property, the second lessee cannot recover the premises from the first lessee in forcible detainer proceedings, on the ground that the first lessee was within the Statute of Frauds, since the statute is for the benefit of the parties to a contract, and a third party cannot set it up for the benefit of one of such parties if he chooses to perform the contract. Best v. Davis, 44 Ill.App. 624.
Second. Even if Cunningham had a right to object to Ellis's contract, because within the Statute of Frauds, he has not done so. The Statute of Frauds is not available as a defense unless pleaded. Benjamin v. Matter, 3 Colo.App. 227, 32 P. 837; J. A. & M. Canal Co. v. Calhoun, 2 Ill. 521; Kinzie v. Penrose, 3 Ill. 515.
The defense of the Statute of Frauds must be raised by demurrer, plea, or answer, to be available at the hearing of a suit to specifically enforce a parol agreement to convey land. Douglas v. Snow, 17 Mo. 91; Guynu v. McCauley, 32 Ark. 97; Augee v. Simpson, 88 Ala. 53; Tarleton v. Vietes, 6 Ill. 470.
If the deed be found in the hands of the grantor, the presumption arises that no delivery has been made. Hatch v. Haskins, 17 Mo. 351.
The possession of a deed by the grantor, after an alleged delivery of it, may be a very strong circumstance to show that the delivery was not absolute. Withelle v. Bryan, 3 Ohio St. 377; Barr v. Schroeder, 32 Colo. 809.
As to two purchasers without fraud for a valuable consideration, the rule of "qui prior est tempore, potior est in jure" applies, and the first in time must prevail. Davall v. Guthrie, 6 Ky. 532.
Although one may purchase land without notice of the equity of others, yet if he takes the deed as a volunteer, or had not paid the purchase money, he is not an innocent purchaser for value, and cannot be protected. Rentenab v. Wilbur, 84 Ill. 297.
A purchaser, to establish that he acted bona fide, must show a consideration actually paid by him. Keys v. Text, 33 Ill. 316; Patten v. Moore, 32 N.H. 382; Doswell v. Buchanan, 3 Leigh, 365, 23 Am. Dec. 280.
Statement of the facts by BIRDZELL, J.
This is an appeal from an order vacating a judgment and modifying findings of fact and conclusions of law in an action for specific performance of an alleged contract to sell real property and to determine adverse claims thereto. One Mary C. Phelps, prior to June, 1914, was the record owner of lot 12, block 10, in the city of Mandan. She became indebted to a concern doing business as the Pacific Silk Company in Spokane, Washington, and deeded the property in question to such creditor, obtaining at the same time a reconveyance. The deed to the Pacific Silk Company, of which the defendant C. L. George was manager, was recorded. The deed from the Pacific Silk Company back to Mrs. Phelps was not recorded. It seems that while the title stood of record in the name of the Pacific Silk Company, Ellis, the plaintiff in this case, conducted some negotiations by correspondence with the Silk Company or George and an attorney representing the ostensible owner looking toward the purchase of the property. Mrs. Phelps did not participate directly in these negotiations, but as they neared completion, in December, 1916, she came to Bismarck and negotiated a sale of the premises to the defendant Cunningham, for $ 1,350. He had no notice of Ellis's negotiations or contract, if there was one. A deed which ran from the Pacific Silk Company to Cunningham was executed by Mrs. Phelps as attorney in fact, she having a power of attorney as well, as a reconveyance of the property from the Pacific Silk Company. Cunningham claims that another deed to him was taken at the same time from Mrs. Phelps as grantor. But this deed was never recorded or brought to the notice of Ellis. Cunningham either intrusted her with the deed from the company to him for the purpose of having her record it, or she undertook to record it as one of the conditions in the contract. It seems that the taxes had not been paid, and that when Mrs. Phelps went to Mandan for the purpose of recording the deed it could not be recorded because of this fact. She, however, filed the power of attorney. At this stage of the transaction Mrs. Phelps, on the afternoon of December 19, 1916, called on Ellis, the plaintiff. She knew that Ellis had been negotiating with the record owner, and, whether or not she called upon him for the purpose of getting him to pay a higher price than Cunningham had agreed to pay, it nevertheless appears that, during the conversation between Ellis and Mrs. Phelps, Ellis obtained some knowledge of the Cunningham deal. Immediately thereafter he instituted this suit to enforce specific performance of an alleged contract based upon his prior negotiations with George, and filed a lis pendens. Of this Mrs. Phelps obtained notice next morning when she went to the office of the register of deeds to record the deed. She at once desired to remove the lis pendens, as it constituted an obstacle to the completion of the Cunningham transaction. Upon failing in her efforts in this respect, she called upon the plaintiff's attorney at his office and inquired as to how soon she could get the money for the lot if she should sell it to Ellis. Upon this occasion she represented that Cunningham might be satisfied to withdraw from the deal if he were reimbursed for the money which Mrs. Phelps had used to pay taxes. This money she had drawn from the purchase price deposit that had been placed in the City National Bank of Bismarck pending the clearing of the title. She was informed that the money would be forthcoming at once, and immediately arrangements were made whereby the property was conveyed to Ellis for an agreed consideration of $ 1,500, and Cunningham was to be reimbursed. The plaintiff's attorney advanced $ 133 by check to Mrs. Phelps to enable her to take up the Cunningham deed, which in the meantime had been recorded and returned to the City National Bank. This check was taken to the bank and attached to Cunningham's purchase price check, and the Cunningham deed redelivered to Mrs. Phelps, who retained possession of it until the trial of this action. In pursuance of the arrangement made upon this same occasion plaintiff's attorney also advanced the remainder of the purchase price by sending his check for $ 1,000 to the Pacific Silk Company and by providing money with which to satisfy some small liens and an attachment. Mrs. Phelps executed a deed to Ellis under her power of attorney, and gave him an order on Cunningham's attorney, who is counsel for appellant in this case, for the abstract of title. Upon presenting the order for the abstract, plaintiff's attorney ascertained that Cunningham refused to relinquish his claim, and he was...
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