Halloran v. Holmes
| Decision Date | 25 October 1904 |
| Citation | 101 N.W. 310,13 N.D. 411 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Dickey county; Lauder, J.
Action by Thomas Halloran against C. Duane Holmes and others. Judgment for plaintiff. Defendant Holmes appeals.
Affirmed.
Benjamin Porter and W. F. Mason, for appellant.
When a grant of real property purports to be an absolute conveyance but is intended to be a mortgage, it cannot be defeated as a grant against any person taking by purchase from the grantee therein named, without actual notice. Mabury v Ruiz, 58 Cal. 11.
One who takes by a warranty deed is a purchaser in good faith for a valuable consideration within the meaning of the registry law, and entitled to protection, although his grantor took by a quitclaim deed. Winkler v. Miller, 6 N.W. 698; Hannan v. Seidentopf, 86 N.W. 44; Chapman v Sims, 53 Miss. 154; Kesler v. Johnson, 81 N.W 922; Esty v. Cummings, 83 N.W. 420.
E. E. Cassels and C. W. Davis, for respondent.
No variance between the allegation in a pleading and the proof shall be deemed material, unless it has misled the adverse party to his prejudice, and whenever a party is alleged to have been so misled, the fact shall be proved to the satisfaction of the court, and in what respect a party is so misled. Section 5293, Rev. Codes; North Star Boot & Shoe Co. v. Stebbins, 54 N.W. 593.
Variance between evidential facts alleged and those proved, which has not misled, surprised or prevented a fair trial is not fatal to a decree, warranted by the ultimate facts alleged in the bill. Burt v. C. Gotzian & Co., 102 F. 937, 43 C. C. A. 59.
Burden of proof is upon defendant Holmes to show that he was a bona fide purchaser for value in good faith without notice. Pricket v. Muck, 42 N.W. 256; Nolon v. Grant, 5 N.W. 513; Upton v. Betts, 59 Neb. 730, 82 N.W. 19. Notice must be denied down to the payment of the purchase price. 23 Am. & Eng. Enc. of Law, 220, and cases cited.
Actual payment before notice must be shown clearly and positively before defense of bona fide purchaser can prevail. Minor v. Willoughby, 3 Minn. (Gil. 154) 225; Newton v. Newton, 48 N.W. 450; Nickerson v. Meacham, 14 F. 884; Larkin v. Mining Co., 25 F. 342; Davis v. Ward, 41 P. 1011; Wormley v. Wormley, 8 Wheaton 421, 5 L.Ed. 651; Woods v. Holley Mfg. Co., 46 Am. St. Rep. 64, 13 So. 953; Boone v. Chiles, 10 Peters 177, 9 L.Ed. 388; 23 Am. & Eng. Enc. Law, 517; Doran v. Dazey, 64 N.W. 1025; Jewett v. Palmer, 7 Johns Ch. 68, 11 Am. Dec. 401; Ledbetter v. Walker, 31 Ala. 177.
A witness not connected with a county office cannot testify to the absence of official papers belonging therein. Fisher v. Betts, 12 N.D. 197, 96 N.W. 132.
The plaintiff, Halloran, commenced this action March 22, 1902, against C. Duane Holmes and E. K. White. The complaint alleges, in substance, that on May 30, 1899, the plaintiff was the owner in fee of the section of land in controversy, situated in Dickey county; that plaintiff executed and delivered to said White a deed of the land in question, which deed, although absolute in form, was in fact given only as security for a present loan and certain anticipated future advances by White to plaintiff; that plaintiff has offered, and is ready and willing, to pay to White whatever sum may be due on account of such loan and advances; that White refuses to render any account, but insists upon retaining possession of and selling said land; that the defendant Holmes claims some interest or estate in said land adverse to plaintiff. The prayer for judgment is that an accounting be had between plaintiff and White; that, upon payment of the debt to White, the latter be required to convey to plaintiff; that Holmes be required to disclose the nature and source of his adverse claims; that the title be quieted in plaintiff; and for general equitable relief. White answered, admitting plaintiff's ownership of the land on May 30, 1899, and the conveyance thereof to himself by a deed absolute in form, but alleging that the consideration for the conveyance "was in part said former indebtedness by the plaintiff to this defendant, and * * * that at the time of the execution of said deed of conveyance, and as part of the same transaction, it was agreed by and between the plaintiff and this defendant that this defendant should sell and convey said land, and should account to the plaintiff for the amount realized in excess of the consideration already received by the plaintiff for said conveyance, and interest thereon." He further alleges that pursuant to the said agreement he sold and conveyed the land to defendant C. Duane Holmes for $ 3,400, which was a reasonable price; that plaintiff knew that such sale was about to be made, and acquiesced therein; that the defendant is, and always has been, ready and willing to account to plaintiff for the proceeds of said sale, and to pay to plaintiff whatever sum is due to plaintiff therefrom after deducting plaintiff's debt to defendant. The answer of defendant Holmes admits the plaintiff's ownership of the land on May 30, 1899; the conveyance thereof on that day by plaintiff to White; that he (Holmes) claims title thereto; and denies all other allegations of the complaint. The answer further alleges that this defendant, in good faith, for a valuable consideration, and without notice of any defect in White's title, purchased the land from, and had the same duly conveyed to himself by, E. K. White, in whom the title appeared of record by virtue of plaintiff's deed to the latter dated May 30, 1899, and which was recorded on February 28, 1902. The issues were submitted to the district court for trial without a jury. The trial court found, among others, the following facts: That plaintiff, who was then the owner of the land in dispute, on May 30, 1899, executed and delivered to defendant White a quitclaim deed thereof, absolute in form; that the deed recited a consideration of $ 1,000, "but in fact no consideration whatever was paid therefor, and said conveyance was made in trust for the use and benefit of the plaintiff and his wife, Alice Halloran, and, in connection with the execution and delivery of said conveyance, the defendant White, joined by his wife, Anna A. White, executed and delivered to the plaintiff a trust agreement wherein and whereby he acknowledged said trust, and covenanted and agreed with the plaintiff and his wife, Alice Halloran, to convey said land and premises at any time, upon their joint demand, or upon the demand of either of them, by quitclaim deed, according to the terms of such demand, and without consideration therefor; that the defendant White then had not, nor has he since then acquired, any other or further interest or estate in, or lien, incumbrance, or demand whatever upon, said land and premises, or any part thereof;" that White, without knowledge or consent of plaintiff, conveyed the land to Holmes for the agreed price of $ 3,400; that the deed was delivered before the commencement of this action, but no part of the purchase price was paid until after the service of the summons and complaint upon Holmes; that $ 1,700 of the purchase price was cash, and the remainder was represented by Holmes' promissory note to White for $ 1,700, payable one year from its date, secured by mortgage on the land; that Holmes was a mere nominal grantee; that "the Marshall-McCartney Company, a corporation, of Oakes, North Dakota, however, negotiated for this conveyance from White to Holmes, paid the $ 1,700 cash portion of the consideration therefor, expect to pay said note and mortgage when it becomes due or is paid, and Holmes has no interest in the premises, other than to hold the title thereto for said Marshall-McCartney Company;" that, when said corporation parted with the consideration for said conveyance, it had knowledge of the pendency of this action. As conclusions of law, the trial court held, in substance, that plaintiff was the owner in fee of the land; that White never had any title to or lien thereon; that neither Holmes nor the Marshall-McCartney Company were purchasers in good faith, without notice, and neither acquired any title by the deed from White. The conclusions further declare that the Marshall-McCartney Company was the real purchaser of the land, under the conveyance thereof by White to Holmes, and as such is a real party in interest, and a proper party defendant in this action. It was accordingly ordered that the Marshall-McCartney Company be made a party defendant; that judgment be entered annulling the deed from plaintiff to White and the deed from White to Holmes, barring the defendants, including the Marshall-McCartney Company, from any claim of title to, estate in, or lien upon the land, and awarding the title and possession thereof to the plaintiff. Judgment was entered pursuant to the order, and defendant Holmes alone appeals. A statement of the case embodying all the evidence was duly settled, and appellant demands a review of all the issues, under section 5630, Rev. Codes 1899.
Appellant contends that the finding of fact to the effect that the deed from plaintiff to White created a mere passive or dry trust in White with respect to the land is fatally variant from the complaint, in which it was alleged that said deed was a mortgage. Defendants at the trial objected, on the ground of variance, to the introduction of all the evidence upon which this finding is based. The proof on this subject, all of which came in subject to defendant's objection for variance, establishes conclusively the facts as stated in the finding. At the time the deed was executed a written declaration of trust was also executed, signed by...
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