Hanson v. Cool

• Decision Date: 17 September 1940
• Docket Number: 6880
• Citation: Hanson v. Cool, 70 N.D. 302, 293 N.W. 884 (N.D. 1940)
• Court: North Dakota Supreme Court

293 N.W. 884

70 N.D. 302

HANS HANSON, Respondent, v. RAY COOL, Appellant

No. 6880

Supreme Court of North Dakota

September 17, 1940

Syllabus by the Court.

1. When a motion is made to dismiss an action for the failure on the part of a nonresident plaintiff to give security for costs the trial court may give the plaintiff an opportunity to procure the requisite surety.

2. Courts are vested with wide discretionary power in the matter of granting amendments to pleadings in furtherance of justice.

3. A deed executed under a mutual mistake or ignorance of a material fact may be cancelled by a court of equity where the court is in a position to render a judgment that places the parties substantially in statu quo.

Appeal from District Court, Bottineau County; C. W. Buttz, Judge.

Action by Hans Hanson against Ray Cool to have a quitclaim deed canceled. From an adverse judgment, the defendant appeals.

Judgment affirmed.

Asmundur Benson, for appellant.

Fraud in order to support either a legal or equitable action, must have produced an injury. The fraud which has injured no one cannot be made the basis of an action. Federal Land Bank v. Koslofsky, 67 N.D. 322, 271 N.W. 907.

Courts cannot relieve parties from imprudent bargains; they must suffer the consequences of their indiscretion, unless an undue advantage has been taken of them. Finlayson v Finlayson (Or.) 21 P. 57.

The general rule unquestionably is that the party believing himself defrauded must elect to rescind and make his election known in some manner to the other party. Sneve v. Schwartz, 25 N.D. 287, 141 N.W. 348.

The courts will take judicial notice of economic and financial conditions prevailing in the agricultural regions of our state. O'Brien v. Lien, 160 Minn. 276, 199 N.W. 914.

Whether the transfer is fraudulent is a question of intent. It must clearly appear that it is a fraudulent intent to render a conveyance void. Bank v. Person, 48 N.D. 478, 185 N.W. 266.

The rule undoubtedly is, as pointed out by the respondents, that fraud, where charged, must be established by clear and convincing evidence. Griffith v. Gifford, 97 Wash. 22.

A contract induced by fraud is not void. It is voidable at the option of the party defrauded, and it required affirmative action on his part to relieve him of the obligation. Ettlinger v. National Surety Co. 221 N.Y. 467; Wagefarth v. Wiessner (Md.) 107 A. 364.

There can be no doubt, but that a conveyance of real estate in due form, even if made with the intent to defraud creditors, is good as between the privies, and can only be avoided by creditor of the fraudulent grantor. Lemay v. Bibeau, 2 Minn. 291, Gil. 251.

Proof of fraud must be very clear and convincing evidence beyond unreasonable controversy. Richard v. Millard (Wis.) 131 N.W. 365.

In an actionable fraud one of the essential elements to maintain an action is actual or constructive intent to deceive. Milwaukee Worsted Mill v. Winsor, 157 Wis. 538, 147 N.W. 1068.

The pleadings, however, cannot be disregarded in making findings and a finding made beyond the issue is void and will not support a judgment. 26 R.C.L. 1087.

The court should make findings on every material issue in the case, but where the findings of a certain fact necessarily control the judgment, the omission of the court to find all other issues does not constitute a reversible error. 26 R.C.L. 1089; Weigel v. Powers Elevator Co. 49 N.D. 867, 194 N.W. 113; Hiam v. Andrews Grain Co. 48 N.D. 250, 183 N.W. 1016.

Thus, where an action is tried on the theory that an instrument in suit or other document has been introduced in evidence, it will be so considered on appeal, although, in fact, it was not formally introduced. 3 C.J. 734, 735; Marshall Wells Co. v. Regan, 46 N.D. 125, 180 N.W. 54; Vannett v. Reilly-Herz Auto. Co. 42 N.D. 607, 173 N.W. 466; Poirer Mfg. Co. v. Kitts, 18 N.D. 558, 120 N.W. 558; Brissman v. Thistlewaite, 49 N.D. 417, 192 N.W. 85; Fargo Loan Agency v. Larson, 53 N.D. 621, 207 N.W. 1003; Gaines v. White, 2 S.D. 410, 50 N.W. 901; Dowdle v. Cornue, 9 S.D. 126, 68 N.W. 194; Loftus v. Agrant, 18 S.D. 55, 99 N.W. 90; McCabe v. Desnoyers, 20 S.D. 581, 108 N.W. 341; Mallery v. Griffin, 43 S.D. 71, 177 N.W. 818; Casey v. First Nat. Bank, 20 N.D. 211, 126 N.W. 1011; Minneapolis, St. P. & S. Ste. M.R. Co. v. Stutsman, 31 N.D. 597, 154 N.W. 654; Montana Eastern R. Co. v. Lebeck, 32 N.D. 162, 155 N.W. 648; Harris v. Van Vranken, 32 N.D. 238, 155 N.W. 65; Crisp v. State Bank, 32 N.D. 263, 155 N.W. 78; Smythe v. Muri, 34 N.D. 242, 158 N.W. 264; Rickel v. Sherman, 33 N.D. 298, 158 N.W. 266; Gordon v. Goldamer, 16 N.D. 323, 113 N.W. 609; Roach v. McKee, 66 N.D. 304, 265 N.W. 264; Passenger v. Coan, 61 N.D. 569, 238 N.W. 773; 3 C.J. 730.

The theory upon which the case was tried in the court below must be strictly adhered to on appeal. 2 R.C.L. 79; Kurtz v. Paulson, 33 N.D. 400, 157 N.W. 305.

Our statutes require suit to be prosecuted in the name of the real party in interest. Comp. Laws 1913, § 7395; Willbur v. Johnson, 32 N.D. 314, 155 N.W. 671; Stewart v. Price, 64 Kan. 191, 67 P. 553, 64 L.R.A. 581; 47 C.J. 19, 21.

E. R. Sinkler and G. O. Brekke, for respondent.

A complaint will be treated on appeal as if a proper amendment asked below had been granted, where a new trial is demanded on appeal. Holler v. Amodt, 31 N.D. 11, 153 N.W. 465; Nashua Sav. Bank v. Lovejoy, 1 N.D. 211, 46 N.W. 411; Hendrick v. Jackson, 39 N.D. 466, 167 N.W. 757.

An amended complaint, setting forth same transaction as original complaint, on which action was previously tried, in three causes of action to meet three aspects of proof, was not abandonment of original cause of action. Krudwig v. Koepke, 227 Wis. 1, 277 N.W. 670.

After verdict and judgment, the appellate court will consider the complaint amended to accord with the facts found in the trial court, if the complaint as framed is insufficient to support them. Madison Trust Co. v. Helleckson, 216 Wis. 443, 257 N.W. 691, 96 A.L.R. 992.

The findings of the trial court are entitled to appreciable weight when the case is before this court on a trial de novo, especially when the witnesses appeared before him personally and he had the advantage of observing their demeanor. Coykendall v. Briggs, 60 N.D. 267, 234 N.W. 74; Lakota Merc. Co. v. Balsley, 60 N.D. 768, 236 N.W. 631; First Nat. Bank v. Weiss, 54 N.D. 883, 211 N.W. 979.

There is no free or mutual consent to a contract where it is signed under mistake of fact. Streeter v. Archer, 46 N.D. 251, 176 N.W. 826; Orth v. Procise, 38 N.D. 580, 165 N.W. 557.

Though generally mere silence does not amount to fraud, there are times and occasions when it becomes the duty of a person to speak, in order that the party he is dealing with may be placed on an equal footing with him; and when a failure to state a fact is equivalent to a fraudulent concealment, and amounts to fraud equally with an affirmative falsehood. 12 R.C.L. 307.

Fraud may be committed by the suppression of the truth as well as by the suggestion of falsehood, and it is equally competent for the court to relieve against it whether it is committed in one way or the other. 12 R.C.L. 305.

Morris, J. Nuessle, Ch. J., and Christianson, Burr, and Burke, JJ., concur.

OPINION

MORRIS

This is an appeal by the defendant from a judgment of the district court of Bottineau county cancelling a quit-claim deed executed by the plaintiff and conveying to the defendant two eighty-acre tracts of land in Bottineau county. The judgment also directed the payment to the defendant of $ 639.03 representing the consideration paid for the deed and taxes paid by the defendant subsequent to its execution. The case is here for trial de novo.

The plaintiff is a nonresident of the state. At the time of the commencement of the action he did not furnish security for costs as required by chapter 199, N.D. Session Laws 1937, which amends § 7812, N.D. Compiled Laws 1913. The defendant attached to and served upon the plaintiff with his answer a motion to dismiss the action upon the ground that the plaintiff had failed to furnish security for costs. Thereafter the plaintiff secured the indorsement on the summons of a resident of the county as security. When the case was called for trial the defendant renewed his motion for dismissal. The court then called attention to the fact that § 7814, Compiled Laws 1913 had not been amended and stated that he would give the plaintiff an opportunity to furnish satisfactory surety. This was done by permitting the plaintiff to deposit, with the approval of the clerk of court, $ 25 as surety in addition to indorsement of the summons. The court then said: "What about this motion for dismissal? Any motion going to be made?" to which defendant's attorney replied, "I think not." The defendant now argues that the failure to furnish costs as prescribed by chapter 199, N.D. Session Laws 1937, entitled him to a dismissal of the action.

The trial court correctly pointed out that § 7814, N.D. Compiled Laws 1913 has not been amended. Under that section this court has held that when a motion is made to dismiss an action for failure on the part of a nonresident to give surety for costs, the trial court may give the plaintiff an opportunity to procure the requisite surety. Bergh v. John Wyman Farm Land & Loan Co. 30 N.D. 158, 152 N.W. 281; Quinn Wire & Iron Works v. Boyd, 52 N.D. 273, 202 N.W. 852. Chapter 199, N.D. Session Laws 1937, does not alter the rule announced in those cases.

The record discloses that the plaintiff filed on the land as a homestead in 1899. In 1906 after receiving title from the government, Hanson moved to Canada where he has since resided. He is a single man about seventy years of age and is engaged in farming. The...