Grandin v. La Bar

• Decision Date: 30 October 1891
• Citation: 50 N.W. 151,2 N.D. 206
• Parties: Grandin et al. v. La Bar.
• Court: North Dakota Supreme Court

2 N.D. 206

50 N.W. 151

Grandin et al.

v.La Bar.

Supreme Court of North Dakota.

Oct. 30, 1891.

Syllabus by the Court.

1. In an action in equity to quiet title to real estate, and enjoin the defendant, who resided upon and cultivated the land as a farm, pending the action and permanently, from tilling the land in question, the complaint was verified only on information and belief, and by one of plaintiffs' attorneys. A verified answer was served, denying the facts and equities set out in the complaint. After the service of the answer, and before a trial was had, the plaintiffs, without notice to defendant or his counsel, applied to the district court for an order appointing a receiver of the crops planted by the defendant and growing upon the land. An ex parte order was made appointing such receiver. The application was based upon an affidavit setting out, among other things, defendant's insolvency, and that the crops were “liable to be mortgaged,” but no attempt was made to support the original equities set out in the complaint. Held, that such appointment was error.

2. Where, in such cases, plaintiffs' original equities are denied by answer, and are without support from evidence extrinsic to the complaint, a receiver should not be appointed, even after notice and a hearing; much less should the defendant be dispossessed summarily by ex parte proceedings.

3. The practice of appointing receivers ex parte is not tolerated by the courts except in cases of the gravest emergency, and to prevent irreparable injury.

Appeal from district court, Traill county; William B. McConnell, Judge.

Action in equity by John L. Grandin and William J. Grandin against E. G. La Bar to quiet title to land. Before trial, and without notice to defendant, a receiver was appointed to take the crops planted by defendant on the land, and from the order making such appointment defendant appeals. Reversed.J. E. Robinson, for appellant. Carmody & Leslie, for respondents.

Wallin, J.

On June 29, 1891, after issue was joined in this action by service of an answer denying the material allegations of the complaint, but before trial, the district court, on plaintiffs' application and by an order made herein, wholly ex parte, appointed a receiver of certain growing crops which were sown by defendant upon the lands in question, upon which the defendant then resided and long had resided. Upon due notice defendant moved in the district court to vacate the order appointing a receiver. The court denied the motion to vacate such order, and in the order denying the motion the district court enlarged the powers of the receiver by making him receiver of the land in controversy, as well as the crops thereon. The case comes to this court on appeal from each and all of said orders.

The action is brought in equity, to quiet title to land. The specific relief prayed for by plaintiffs as follows: “For judgment decreeing that these plaintiffs are the equitable owners of the land; that defendant has no right, title, or interest therein; that the defendant be restrained, during the pendency of the action, and permanently restrained, from tilling said land, or in any manner interfering with the same. Plaintiffs also pray generally for other and further relief.” The complaint further states, in substance, that the land-the S. W. 1/4 of section 7, township 146, range 50 west-is in Traill county, and situated within 50 miles of the line of the Northern Pacific Railroad as such road is finally located and built and situated, within the 10-mile limit of said railroad, commonly called the “indemnity belt.” That said tract is “among the lands, from which the said company were given the right to select lands in lieu of lands which were within the original land grant of twenty alternate sections on each side of said road,” and which were, at the time the company filed its map of definite location, not available to the company by reason of having been previously reserved, sold, granted, settled upon, or otherwise appropriated by the United States government. The complaint alleges, in effect, that prior to the filing of any map of definite location by the railroad company large quantities of the land within the original limits had been settled upon, reserved, and otherwise disposed of by the government, and that, in consequence thereof, the railroad company had, under the provisions of the acts of congress relating thereto, become entitled to select lands-odd-numbered sections-within the 10-mile limit in lieu of such lands in place as were lost to the company as aforesaid. The complaint further states that after it became known that quantities of land had been lost to the railroad company as aforesaid “the secretary of the interior directed the manner in which the said railroad company should select the lands in lieu of those so lost; and that, in accordance with the directions so given by the secretary of the interior, the said railroad company did make selection of lands in lieu of many of the lands so lost by them, and in and among other parcels of land the said Northern Pacific Railroad Company did select the particular land above mentioned in making such selection in the manner as directed by the secretary of the interior; and that at the time of the making of such selection as aforesaid the land was wholly unoccupied, and was not subject to any contests, and had not been in any way disposed of or alienated by the United States, but at the time of the said selection thereof the said United States had full title to said land.” The complaint avers that after the land in question had been selected by the company as above stated, and in September, 1876, the railroad company sold and conveyed the same to the plaintiffs, and that ever since such conveyance to plaintiffs “they have been the owners of said land in equity if not law,” and have a right to a deed patent to the same. The complaint also states that long subsequent to such conveyances to plaintiffs, to-wit, in the month of October, 1887, “the defendant wrongfully and unlawfully entered upon said land, and has ever since that time been wrongfully and unlawfully in the possession of said land, and has cultivated and broken and harvested and raised crops on said land, and is injuring the same, and sapping the said land and the soil thereof of its goodness and strength, and doing great and irreparable injury to the said land and to the right of possession thereof.” The complaint further charges that the defendant is wholly insolvent and financially irresponsible. The complaint is verified on information and belief by C. E. Leslie, one of the plaintiffs' attorneys, but the affidavit of verification fails to state why it was so verified, or why it was not verified by plaintiffs.

Defendant answered the complaint, and, after admitting the incorporation of the Northern Pacific Railroad Company, further answered: “Defendant, further answering the complaint herein, denies that he has any knowledge or information thereof sufficient to form a belief, and therefore denies each and every allegation not specifically admitted or otherwise denied. Defendant alleges that on the 20th of September, 1887, he, being a married male person and the head of a family, and over the age of twenty-one years, and a citizen of the United States, made settlement in person with his family, consisting of a wife and four children, upon the land described in the complaint. That said land was and is public land of the United States, not mineral, and subject to pre-emption. That said lands, with other lands, were declared to be a part of the public domain, and open for settlement under the general laws of the United States, by an order of the honorable secretary of the interior, duly made on August 15, 1887. That defendant settled peaceably upon said land. That it was then wholly unoccupied wild prairie land, and without any improvements of any kind or nature whatsoever, and this defendant settled peaceably upon said land as a pre-emptor, and duly filed his declaratory statement of his intention to claim said land as a pre-emption right under the laws of the United States in the United States land-office at Fargo, N. D., on the 20th of October, 1887. That he then established his residence on said land, and has inhabited, cultivated, and improved the same continuously since said date, and has erected a dwelling-house, barn, and other buildings thereon, dug a...