Gjerstadengen v. Hartzell

• Decision Date: 12 May 1900
• Court: North Dakota Supreme Court

83 N.W. 230

9 N.D. 268

MARTIN P. GJERSTADENGEN, et al v. WM. J. HARTZELL

Supreme Court of North Dakota

May 12, 1900

Appeal from District Court, Ransom County; Lauder, J.

Action by Martin Peterson Gjerstadengen and others against William J. Hartzell. Judgment for plaintiffs. Defendants appeals.

Affirmed.

J. E Bishop and C. D. Austin, for appellant.

The action of Gjerstadengen v. Van Dusen & Co. was pending until its final determination on appeal on the 2d day of June 1898. § 5739, Rev. Codes; Aldrich v. Case, 73 N.W. 161; Martin v. Gilmore, 72 Ill. 200; Hills v. Sherwood, 33 Cal. 478; Brown v. Evans, 18 F 59; Natzger v. Gregg, 99 Cal. 83, 33 P. 757; In re Blythe's Estate, 99 Cal. 472, 33 P. 108; Storey v. Storey, 100 Cal. 41, 34 P. 675; Brown v. Campbell, 100 Cal. 635, 35 P. 433; Fresno Mill Co. v. Fresno Canal Co., 101 Cal. 582, 36 P. 412; Sharon v. Hill, 26 F. 337, 346; § 1049, Cal. Code Civ. Pro.; Washburn v. Van Steenwyk, 32 Minn. 355; Bryan v. Farnsworth, 19 Minn. 239, 20 N.W. 324. No notice of lis pendens having been filed, defendant had not constructive notice of the pendency of the action. § 5251 Rev. Codes; Head v. Fordyce, 17 Cal. 152; Mills v. Bliss, 55 N.Y. 141; Richardson v. White, 18 Cal. 103; Jewell v. Land Co., 64 Minn. 540; Conkey v. Dyke, 17 Minn. 457. The full title to the premises is in appellant as appears upon the face of the records, and respondents are endeavoring to establish a mere equity as against appellant, a bona fide purchaser, without any notice whatever thereof, either actual or constructive. Purchasers without notice are protected against mere equities. Frost v. Beekman, 1 Johns. Ch. 288; Florence v. Leighler, 58 Ala. 225; Farmers' L. & T. Co. v. Maltby, 8 Paige 361; Paul v. Fulton, 25 Mo. 156. The decree of the District Court in the Van Dusen & Co. case, not having been recorded in the register of deeds' office prior to the conveyance to the defendant, was not constructive notice. The statute provides that a decree must be recorded in the office of the register of deeds and is within the recording act. § § 3563, 3594, 3595, Rev. Codes. In view of the fact that such a recordation is authorized, the record of such decree is constructive notice to subsequent purchasers of the property affected thereby. Storey, Eq. Jur. § 404; Farmers L. & T. Co. v. Maltby, 8 Paige Ch. 361. A decree in a chancery suit is not notice until it is recorded. Roner v. Bingham, 1 Ind. 542. Improvements made upon the property must be considered in the partition, and the allegations in reference to the same in the answer are not demurrable. Dean v. O'Mera, 47 Ill. 120; Kurtz v. Hibner, 55 Ill. 514; Robinson v. McDonald, 11 Tex. 385; Sarbach v. Newell, 30 Kan. 102; Allen v. Hall, 50 Me. 265. The right of a tenant in common to compensation for improvements made by him is not a legal right dependent upon a statute, but is a right enforcible in a court of equity. Alleman v. Hawley, 117 Ind. 532; Ward v. Ward, 29 L. R. A. 452, note E; Green v. Putnam, 1 Barb. 507; Cosgriff v. Foss, 152 N.Y. 104, 36 L. R. A. 753. When the appeal in the Van Dusen & Co. case was perfected, the force and effect of the judgment was destroyed, and it was dormant or ineffectual for all purposes during the pendency of the appeal. There being no statute authorizing or requiring a supersedeas bond in this class of cases, the appeal operates as a supersedeas. The common law rule is in force in the absence of statutory restrictions. Hudson v. Smith, 9 Wis. 116; Hart v. The Mayor, 3 Paige 381; Birch v. Conrow, 116 Pa. 121; Woodbury v. Bowman, 13 Cal. 635, 24 Am. & Eng. Enc. L. 586, note 5; Wade v. Colonization Society, 4 Sm. & Mar. 671. Where a suit is pending in the Supreme Court on appeal, the judgment below is suspended for all purposes, and it is not evidence upon the questions at issue even between the parties. Woodbury v. Bowman, 13 Cal. 635; Murray v. Green, 64 Cal. 364; Atkins v. Wyman, 45 Me. 399; Stalbird v. Beattie, 36 N.H. 455; Hutchraff's Ex'r. v. Gentry, 2 J. J. Marsh, 499. The conveyance of the premises to appellant was after the appeal had been perfected, while it was pending, and prior to the entry of final judgment on the appeal. The decree, therefore, was inoperative even as notice at this time. McGarrahn v. Maxwell, 28 Cal. 92; Yeaton v. U.S. 50 Cranch, 281; Paine v. Cowdin, 17 Pick. 142; Davis v. Cowdin, 20 Pick. 510. The counterclaim is properly pleaded and the demurrer to it should not have been sustained. Appellant, in addition to the claim for improvements asks affirmative relief. The rule is that where a defendant asks affirmative relief, it must be done by counterclaim or cross-bill. German v. Machin, 6 Paige Ch. 288; Martindale v. Alexander, 26 Ind. 105. A claim of defendant in partition suit for the value of improvements made should be presented by cross-bill. Stafford v. Nutt, 35 Ind. 95; Freeman on Co-tenancy, § 504. Partition is a proceeding in equity. Packard v. King, 3 Col. 211; Mulligan v. Poole, 35 Ind. 64; Gooddale v. District Court, 56 Cal. 29; Freeman on Co-tenancy, § 505.

T. A. Curtiss and Morrill & Engerud, for respondents.

This action is a sequel to the case of Gjerstadengen v. Van Dusen, 7 N.D. 612, and has been before this court before. Gjerstadengen v. Hartzell, 8 N.D. 424. The court below sustained plaintiff's demurrer to those parts of defendant's answer which set forth matters that had been adjudicated in the Van Dusen case, on the ground that the defendant was privy in estate to Van Dusen & Co., and concluded by that judgment. No notice of lis pendens was filed. Defendant bought the land after the Van Dusen judgment was entered. The Newman law does not restore the old chancery appeal. Hence, notwithstanding the Newman law provides for a hearing de novo, the appeal does not vacate the judgment of the trial court. Under the construction of the Newman law, it does not in reality provide for a trial de novo in the literal sense, or in the sense that a trial de novo was had on appeal under the old chancery practice. Jasper v. Hazen, 4 N.D. 1; Christianson v. Ass'n, 5 N.D. 438; Nichols & Shepard Co. v. Stangler, 7 N.D. 106. The Van Dusen case was tried after the amendment, chapter 5, Laws 1897. The effect of this amendment is to take out of the original statute the feature of the trial anew in the appellate court. Where an appeal, as in this state, is in effect a writ of error, a judgment is res adjudicata from the time of its entry till reversed. Freeman, Judg. § 328; Nil v. Comparet, 16 Ind. 107; Scheible v Slagle, 89 Ind. 328; Padget v. State, 93 Ind. 398; Faber v. Hovey, 117 Mass. 107; Bank v. Wheeler, 28 Conn. 433; Cole v. Connelly, 16 Ala. 271; Curtis v. Root, 28 Ill. 367; Oakes v. Williams, 107 Ill. 54; Moore v. Williams, 24 N.E. 619; Parkhurst v. Berdell, 110 N.Y. 386; Stevens v. Stevens, 23 N.Y.S. 520; Creighton v. Keith, 70 N.W. 407; Bank v. Calvitt, 3 Sm. & Mar. 143; Cook v. Rice, 27 P. 1081; Willard v. Ostrander, 32 P. 1092; Poole v. Seney, 24 N.W. 520; Smith v. Schrimer, 56 N.W. 160; Thompson v. Griffin, 6 S.W. 619; Snydam v. Hoyt, 25 N.J.L. 230. An appeal with or without supersedeas does not affect the conclusiveness of the judgment as evidence. Willard v. Ostrander, 32 P. 1092. Section 5739, Rev. Codes, was not intended to create a new rule of evidence. The purpose of this statute is plain. Under the old system lis pendens terminated upon the entry of judgment. Scudder v. Sargent, 17 N.W. 369; Parker v. Courtney, 44 N.W. 863; Monell v. Lawrence, 12 Johns. 534; Grattan v. Wiggins, 23 Cal. 16; Black, Judg. § 552; Sheridan v. Andrews, 49 N.Y. 478. As a consequence of this rule it was frequently held that a purchaser was not affected by reversal on appeal. To correct this injustice, the rule laid down in § 5739, Rev. Codes was adopted. An appeal, however, does not prevent the enforcement of the judgment unless a supersedeas bond is given. §§ 5610, 5616, Rev. Codes. The doctrine of lis pendens is based on necessity. Bellamy v. Sabine, 1 Degex. & Jones, 566; Houston v. Timmerman, 4 L. R. A. 416; Brown v. Cohn, 69 N.W. 71; 13 Am. & Eng. Enc. L. 870. Under the old system lis pendens terminated with the entry of the decree. Purchasers of the property affected by the decree, after its entry, were not lis pendens purchasers, but were bound by the decree, not by reason of any supposed notice of it, but by the doctrine of estoppel. Paige v. Waring, 76 N.Y. 463; Sheridan v. Andrews, 49 N.Y. 478; 13 Enc. L. 870. The grantee of the person against whom the decree affecting property was rendered is privy in estate with his grantor. Stranger v. Johnson, 110 Pa. 21; Tell v. Bennett, 110 Pa. 181; Goddard v. Benson, 15 Abb. Pr. 191; Herm. Estop. § § 139, 143 and 144. Hence, under the rule that a judgment or decree estops parties and privies, a purchaser becomes bound as well as his grantor. Cushing v. Edwards, 25 N.W. 940; Morrill v. Morrill, 11 L. R. A. 155; Howard v. Huron, 5 S.D. 539; Eakin v. McCraith, 3 P. 838; Herm. Estop. § § 143 and 144. Judgments do not come within the provisions of the recording act. Hoag v. Howard, 55 Cal. 564. Every purchaser of a chose in action is conclusively presumed to have full notice of all the infirmities of his vendor's title, and is bound to know at his peril all transactions between his vendor and other previous to an assignment in any way affecting his claim. He gets no better title than his vendor had. Brown v. Cohns, 69 N.W. 71; Sheridan v. Andrews, 49 N.Y. 478; Bennett on Lis Pendens, § 319. A judgment estops not only as to the issues actually determined, but also as to all matters which could and ought to have been litigated in the action in which it was rendered. Enderlin State Bank v. Jennings, 4 N.D. 228; Howard v. Huron, 5 S.D. 539; Eakin v. McCraith, 3 P. 838; Morrill v....