Emery v. First Nat. Bank of Bowbells
| Decision Date | 04 February 1916 |
| Docket Number | 1915 |
| Citation | 156 N.W. 105,32 N.D. 575 |
| Court | North Dakota Supreme Court |
[Copyrighted Material Omitted]
Appeal from the District Court of Ward County, F. E. Fisk, Special Judge.
Action to set aside a deed to real estate and a bill of sale of personal property. Judgment for defendant. Plaintiff appeals.
Affirmed.
Palda Aaker, & Greene, for appellant.
In an equity action, where a jury is called in to try certain specified issues of fact, the general rule is that the verdict is merely advisory. But it would seem that the rule would be different here, where the procedure is to receive all the evidence offered, and where a trial de novo may be had in the supreme court. Reed v. Cline, 9 Gratt. 136; Baker v. Williamson, 2 Pa. 116; Adams, Eq. 376, note 1; McDaniel v. Marygold, 2 Iowa 500, 65 Am. Dec. 786; Learned v. Tillotson, 97 N.Y. 1, 49 Am. Rep. 508.
The verdict of the jury in such a case may be used, followed, or abandoned, in the judicial discretion of the court. Miller v. Wills, 95 Va. 337, 28 S.E. 337; Peckham v. Armstrong, 20 R. I. 539, 40 A. 419; 16 Cyc. 423-426; Beach, Eq. Jur. 125.
"Any relation may be deemed confidential arising from nature or granted by law, or resulting from contract, where one party is so situated as to exercise a controlling influence over the conduct and interests of another, or where the law requires the utmost good faith." People ex rel. Crunney v. Palmer, 152 N.Y. 217, 46 N.E. 328; Robins v. Hope, 57 Cal. 493; Brown v. Mercantile Trust & D. Co. 87 Md. 377, 40 A. 256.
D. C. Greenleaf, Bradford & Nash, and Francis J. Murphy, for respondents.
Duress, menace, and undue influence must be shown by evidence of the clearest and most satisfactory character, before the deed will be set aside. Jasper v. Hazen, 4 N.D. 1, 23 L.R.A. 58, 58 N.W. 454.
It must clearly appear that the deed would not have been given excepting for the threats and undue influence. McGuin v. Lee, 10 N.D. 160, 86 N.W. 714.
In suits in equity the verdict of a jury is merely advisory on the question submitted, and therefore is subject to the control of the court. Prondzinski v. Garbutt, 8 N.D. 191, 77 N.W. 1012.
The plaintiff's original complaint is a direct charge that defendants brought about the mental condition of the plaintiff, and defendants prepared their defense along those lines. His general mental condition was not in issue, and no preparation was made to meet such issue, and no amendment covering same was sought or asked until after nine days' continuous trial. The motion to so amend was properly denied. Wood v. Pehrsson, 21 N.D. 357, 130 N.W. 1010.
Statement of facts by
This is an action to set aside a deed to real estate and a bill of sale of personal property executed by the plaintiff to the defendant, A. C. Wiper, the cashier of the defendant bank, the First National Bank of Bowbells. The reason given in the complaint is that "the plaintiff herein is not strong physically, and, under the severe strain necessarily imposed by the demands of the defendants and their threats to settle their claims, he was not mentally responsible for his actions; that said defendants took advantage of their confidential relations with him, and his distress and physical and mental condition, and induced this plaintiff to execute conveyances of all of his property to them." It is also alleged in the complaint "that the reasonable value of plaintiff's real estate heretofore described, and consisting of 380 acres of land is, at the present time, $ 25 per acre without improvements; that the improvements on said land, consisting of a seven-room, two-story house, two large barns, and fencing around all of the divisions of such farm, are worth $ 3,500 to $ 5,000." This would make a total of $ 14,500, or about $ 31 an acre. The testimony varies from $ 20 to $ 50 an acre. According to the testimony, as we view it, the plaintiff on the 14th day of December, 1911, was the owner of 380 acres of farm lands located within a mile of the center of the business part of the town of Bowbells, in Burke county, North Dakota. He was also the owner of some 13 or 18 head of horses and colts and of a considerable amount of farm machinery and appliances. Upon the farm there existed a first mortgage for $ 5,000. At that time he was also indebted to the First National Bank of Bowbells in the sum of $ 2,700, for which sum the bank held a mortgage upon his personal property. He also appears to have been owing some $ 3,000 for back taxes and to his general creditors. He was a single man, having secured a divorce from his wife some years before, and had living with him on the farm two young children. He was forty-eight years of age. He had come from Canada in 1906, and had brought with him several thousand dollars which he had invested in the farm and in his farming operations at Bowbells. A few days prior to December 14, 1911, and before the execution of the deed and bill of sale in question, the defendant bank seized the personal property of the plaintiff under its chattel mortgages, and, at the time of the execution of such deed and bill of sale, notices of foreclosure were in the hands of the printer for publication. It appears, however, that before such seizure and before the execution of the said instruments, the said Emery had consulted a member of the firm now representing the plaintiff, and that such lawyer had gone with him to the bank to see the defendant Wiper, and had asked for a statement of the accounts between the parties, which the said Wiper agreed to furnish him the next day; that before furnishing such statement, however, Mr. Wiper sent for the plaintiff, and after a meeting at the bank, which occupied some hours and which was held in the night of December the 14th, the plaintiff executed the deed and bill of sale in question, and later fully ratified the same. The evidence of this ratification will be found in the opinion. Later the plaintiff brought the present action to set aside the conveyances. The consideration for the said deeds and bill of sale appears to have been a certificate of deposit for $ 900, which was tendered in court and offered to be returned on the trial, three cows at the agreed price of $ 100; an oral agreement to pay the outstanding debts and past-due taxes of the plaintiff, amounting to about $ 3,000; the assumption of the $ 5,000 mortgage upon the farm, and the extinguishment of the claims of the bank which were secured by chattel mortgages and which amounted to about $ 2,700. This amounted in all to about $ 11,900, or, exclusive of the chattel mortgage debts, to $ 9,200. It is proved that 1910 and 1911 were dry years and that poor crops were raised.
On November 16, 1912, and about sixty days before the trial began, the presiding judge of the district court of Ward county, at the request of the plaintiff, made an order that seven certain questions and "such other questions as might be deemed proper" should be submitted to a jury and answered upon the trial. These original seven questions were as follows:
First: Was the plaintiff induced by the defendants, or either of them, to execute and deliver the deed and bills of sale referred to in P 6 of the complaint, by the deceit or misrepresentation of facts by the defendants, or either of them, and on which the plaintiff relied?
Second: If your answer to the foregoing question is "Yes," then state whether such deceit was practised or misrepresentation was made by one or both of said defendants, and, if only one, specify which.
Third: If your answer to the first question is "Yes," then was such deceit practised, or were such misrepresentations made, with the intent to cheat or defraud the plaintiff?
Fourth: Did the defendants, or either of them, make use of their confidential relations with the plaintiff, or take oppressive or unfair advantage of the plaintiff's necessities or distress to induce him to execute and deliver such deed and bill of sale?
Fifth: If your answer is "Yes," to the last question above, then state whether such conduct was that of both the defendants or of only one, and, if by one only, state which.
Sixth: Was the plaintiff induced to execute and deliver such deed and bill of sale by threats of the defendants, or either of them, of injury to the person or property of the plaintiff?
Seventh: If "Yes," is your answer to the last question, state whether such threats were made by both said defendants, or only by one, and, if by one only, state which. Later and on the trial, the Honorable Frank E. Fisk, who had been called in to try the case in the place of the presiding judge of the district, refused a request of the plaintiff to submit certain additional questions to the jury, and which questions related entirely and exclusively to the value of the land and of the personal property which was seized under the chattel mortgage.
In refusing to submit these questions, the court said: To this ruling the plaintiff excepted. Counsel for plaintiff later, and at the close of his case, asks to have the following...
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