Farmers Security Bank of Park River v. Verry
| Decision Date | 29 April 1919 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Grand Forks County; Honorable Chas. M. Cooley, Judge.
Modified and affirmed.
Neither party recovered any costs of the appeal. Judgment modified in part, and affirmed in part, without costs on appeal.
W. S Lauder, for appellants.
When there exists doubt as to the delivery of a deed, the true situation may always be shown by parol. Burke v Dulaney, 38 L.Ed. 698, and cases cited; 17 Cyc. 642, and cases cited in note 46; Branson v. Oregonian R. Co. (Ore.) 2 P. 86; Davies v. Jones, 16 C. B. 625; Hallis v. Littel, 11 C. B. N. S. 369; Wilson v Powers, 131 Mass. 539; Pawling v. United States, 4 Cranch, 219; 2 Taylor, Ev. 8th. ed. § 1135.
The officials of the bank were chargeable with notice of Mr. Verry's authority concerning the deed. Merchants' Nat. Bank v. Ohio Co. (W. Va.) 50 S.E. 880. See also the following authorities: Dowden v. Cryder (N. J.) 26 A. 941; Tiedeman, Com. Paper, § 92; North River Bank v. Aymer, 3 Hill, 262; Stainer v. Tysen, 3 Hill, 279; Voltz v. Blackmar, 64 N.Y. 440; Stainback v. Reed, 62 Am. Dec. 648.
See also the case of Park Hotel Co. v. Fourth Nat. Bank, 86 F. 742. The opinion in this case is by Judge Sanborn and is an instructive case upon the point here under consideration.
See also: Rohrburg v. Express Co. (W. Va.) 50 S.E. 398; Gulick v. Grover, 33 N.J.L. 463, 97 Am. Dec. 728. On principle, the following authorities are in point: Northern Trust Co. v. First Nat. Bank, 25 N.D. 74, s. c. 33 N.D. 1.
E. Smith-Petersen and McIntyre & Burtness, for respondent.
"A delivery may be presumed from the grantee's possession of the instrument, in the absence of proof to the contrary." Brittain v. Work (Neb. 14 N.W. 421; Parker v. Parker (Iowa) 8 N.W. 806; Hancock v. Dodd (Tenn.) 36 S.W. 742; American v. Frank (Iowa) 17 N.W. 464; N.D. Comp. Laws 1913, § 5497; Sargent v. Cooley, 12 N.D. 1; Ueland v. More Bros. (N.D.) 133 N.W. 543.
"There is no allegation of insolvency of either the plaintiff or principal debtor, or any other fact or circumstance to bring the demand within the principles of equity jurisprudence. N.D. Rev. Codes 1913, § 7449; Roberts v. Donavan (Cal.) 9 P. 180; Clark v. Sullivan, 2 N.D. 105.
Mrs. Verry gave the deed for her husband's benefit to secure his debt or liability to the bank, and cannot set up any secret understanding to defeat the deed. Ueland v. More, 133 N.W. 543; People's State Bank v. Francis, 8 N.D. 369.
So far as the homestead is concerned she did not occupy a more favorable position. People's State Bank v. Francis, 8 N.D. 369, 79 N.W. 853; Omlie v. O'Toole, 112 N.W. 677; Carroll County v. Ruggles, 69 Iowa 275; Taylor Co. v. King (Iowa) 34 N.W. 775; Blume v. Bowman, 24 N. C. (2 Ired. L.) 338; Page v. Krekey, 21 L.R.A. 409, and note; Bank v. Boddicker, 45 L.R.A. 321, and note; Hendry v. Cartwright, 8 L.R.A.(N.S.) 1056, 89 P. 309.
ROBINSON, J. GRACE and BRONSON, JJ., did not participate, Honorable W. L. NUESSLE, Judge of Sixth Judicial District, sitting in their stead.
For several years the defendant was the cashier of the bank. The complaint charges, and it is a fact, that in his capacity as cashier he did wilfully permit numerous accounts to be overdrawn in large sums, and that he discounted and received many worthless promissory notes, some of which were given for his own use and benefit. While the findings of the trial court are mainly and justly in favor of the defendant, still several findings are against him, and so he appeals to this court.
The trial court found that the total amount of losses and damages sustained by the plaintiff was the sum of $ 8,506.52, on which the defendant was given credit for the proceeds of a quarter section of land, amounting to $ 2,700,26, and for services, $ 366,25; and he was charged with the net balance of $ 5,353.36, for which judgment was entered, with costs, amounting to $ 746.52.
The costs are clearly excessive and unreasonable, and a large part of the cost was made in trying to prove groundless charges against the defendant Verry, who was to a great extent the prevailing party. He successfully defended against the great bulk of the claims charged against him. Hence, the costs item must be divided in two parts and only one part allowed as costs.
Aside from the question of costs, three matters were argued and submitted: (1) The first relates to the delivery of four deeds, marked exhibits 4, 5, 6, and 7, made by the defendants to T. Johnson, as grantee. (2) The second relates to the claim of defendant Mrs. Verry to recover from the bank $ 2,700.26, the price of a quarter section which she conveyed to the bank, and which it sold and gave credit on the account against her husband. (3) The third is in regard to the delivery of certificates to the bank for fifteen shares of stock.
Verry claims that at the time when he resigned as cashier of the bank the four deeds were given by himself and wife to secure insurance notes amounting to $ 10,000, and no more; that the conditions of the delivery were to be shown by a written agreement, which the bank refused to make and sign after obtaining actual possession of the deeds and the stock certificates. The assignment and delivery of the stock certificates stand in the same category as that of the deeds. It is claimed that the deeds were duly made and the certificates were duly assigned and left by C. R. Verry in the bank on the bank counters, or in the actual possession of the bank; that the evidence is not sufficient to disprove a delivery of the same and the equities are all in favor of a delivery to secure the sums justly due by Verry to the bank. It is fair to presume that Verry was disposed to close his dealings with the bank by giving security to pay the sums justly due, though he properly refused to sign an agreement pleading the deeds and securities for more than the sums due.
The four deeds, exhibits 4, 5, 6, and 7, were made at the same time and in the same manner. Each deed bears date, September 20, 1913, and is made by C. R. Verry and Hattie Verry, his wife, to T. Johnson. The express consideration is $ 1. Each deed is witnessed by the same parties and acknowledged before the same notary public on September 22, 1913, and recorded September 27, 1913. Though the deeds are thus made and signed by "C. R. Verry and Hattie L. Verry, his wife," as if he were the owner of the land, still it is claimed that T. Johnson and the bank are chargeable with notice that the wife owned the...
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