Heger v. De Groat

• Decision Date: 06 July 1893
• Citation: 56 N.W. 150,3 N.D. 354
• Parties: HEGER et al. v. DE GROAT.
• Court: North Dakota Supreme Court

3 N.D. 354

56 N.W. 150

HEGER et al.

v.DE GROAT.¹

Supreme Court of North Dakota.

July 6, 1893.

Syllabus by the Court.

1. Sections 3303, 4870, Comp. Laws, construed. The plaintiff Schmitz conveyed the land in question to the plaintiff Heger while the defendant was in the actual possession of the land, claiming title adversely to Schmitz. Held, in an action brought by Heger to recover the possession, and damages for wrongfully withholding the land, that Schmitz was properly joined as a formal party plaintiff.

2. While Schmitz was living on the land, the sheriff, aided by the defendant, and assuming to act under and by virtue of a writ of execution issued out of a justice's court, entered upon the land, and ousted Schmitz, and put the defendant in possession. The execution was issued upon a judgment by default in an action for an unlawful detainer, in which the defendant herein was plaintiff, and Schmitz was defendant. The record in said action was excluded from the consideration of the jury upon the ground that the justice of the peace had no jurisdiction. The complaint showed upon its face that both parties to the action claimed title and based their right to possession upon a fee-simple title. Held, that the ruling was not erroneous.

3. Plaintiff Schmitz was the general owner of the land, and in possession. His title was perfect, unless the defendant had a superior title by virtue of a certain tax deed under which defendant claimed title. At the trial it appeared that the tax deed was void on its face, for certain substantial reasons. The district court ruled out the tax deed, and instructed the jury to disregard the same, as it furnished no justification to the defendant for entering upon the land, and ousting Schmitz therefrom. Held, that the instruction was proper.

4. The action is to recover possession of the land, and for damages for its wrongful occupation. At the trial, against objection, plaintiffs were allowed to introduce testimony showing their expenditures for attorneys' fees in prosecuting this action. The verdict was for the plaintiffs, and the jury allowed, as a separate item, the sum of $500 as and for plaintiffs' attorneys' fees in this action. Held, that the court erred in admitting the testimony, and that the judgment must be modified by striking therefrom the amount allowed as attorneys' fees. Held, further, that section 4601, which allows a recovery, as a part of the damages, of “the costs, if any, of recovering the possession,” has reference only to the costs incurred in a previous action, if any had been brought for the sole purpose of recovering possession, and that even in such cases expenditures incurred in the previous action could not embrace attorneys' fees as an element to swell the damages in the later action.

5. Testimony as to the value of the use of the land in question is examined and considered. Held, that the verdict as to the value of the use is justified by such evidence.

6. The court instructed the jury that they might, at their option, allow or not allow interest on the annual value of the use of the land while it was wrongfully occupied by the defendant. Held, that such instruction was proper.

7. Against objection, one of plaintiffs' witnesses was allowed to testify as to certain matters which were foreign to the issues in the case. Held, that the testimony was improperly admitted, but that it was not prejudicial to the defendant, and hence a new trial will not be granted on account of such error.

8. A tax deed, void on its face, cannot operate to set the statute of limitations in motion. Accordingly, held, (construing Comp. Laws, § 1640,) that this action is not barred on account of the fact that it was not commenced until more than three years had elapsed after the void tax deed was recorded.

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

Action by Antoine Heger and Mike Schmitz against John De Groat to recover land, and for other relief. Plaintiffs had judgment, and defendant appeals. Modified.

Selby & Ingwaldson, (M. A. Hildreth, of counsel,) for appellant. J. E. Robinson, for respondents.

WALLIN, J.

This action is brought to recover the possession of a certain quarter section of land in Traill county, with damages for withholding the same, and for the costs of recovering possession. It is conceded that in the month of April, 1887, the plaintiff Schmitz, who then resided upon the land with his family, was the fee-simple owner thereof, unless De Groat, the defendant, was such owner by virtue of a tax deed executed and delivered by the county treasurer of Traill, and upon which the defendant bases all his rights to the land. It appears that De Groat, relying upon his tax title to recover possession, instituted an action in a justice's court of Traill county against the plaintiff Schmitz to oust Schmitz, and to recover possession of the land, under the unlawful detainer statute. Schmitz did not appear in such action, and De Groat obtained judgment in his favor, whereupon an execution issued, and the sheriff (claiming to act under such execution, and being actively assisted by the defendant) ousted Schmitz from the land, and placed the defendant in the exclusive possession thereof. Schmitz was dispossessed in the month of April, 1887, and the defendant continued in the exclusive possession of the land from that time for six cropping seasons, and was in possession when the trial took place in this action, in December, 1892. In May, 1892, the plaintiff Schmitz and his wife, by a deed of conveyance duly executed and recorded, conveyed all of their right, title, and interest in the land to the plaintiff Antoine Heger, and also, by the same deed, transferred to Antoine Heger “all the rights of said grantors to recover possession of said land, with damages for the withholding thereof, and the rents and profits of the same, and for waste committed therein.” The grantors further empowered the grantee to institute any and all necessary actions, in their name or otherwise, to recover possession and damages, as before stated. The deed being made while the defendant was in the actual possession of the land, Schmitz's name is properly used as a nominal plaintiff in this action, pursuant to the provisions of section 4870, Comp. Laws.

The trial court permitted the tax deed and the tax proceedings upon which the deed was based to be introduced in evidence, but in its charge to the jury they were instructed by the court, in substance, to wholly disregard the tax deed. We are satisfied that the tax was void, and that the deed was void on its face; but, as the soundness of this ruling of the district court is practically conceded by appellant's counsel, we do not deem it necessary, in this case, to set forth in detail the grounds or reasons upon which we rest our conclusions upon this feature of the case.

The complaint charged that the plaintiff was lawfully seised and possessed of the land as owner in fee simple, and “that while so possessed thereof, on April 2, 1887, the defendant entered upon said premises, and ousted said Schmitz, and that he still unlawfully withheld from the plaintiff possession thereof, * * * and that the value of the use and occupation of said premises since the 2d day of April, 1887, * * * is $500 a year.” Plaintiffs further claimed in their complaint general damages in the sum of $1,000, but do not set up in their complaint any demand for attorneys' fees as a part of plaintiffs' costs in recovering the possession. The verdict was for the plaintiffs, and embraced the following: “For the use and occupation of the land, $3,245; for the cost of recovering the said land, $500,-amounting in all to the sum of $3,745.” Plaintiffs' counsel was called as a witness to show the amount of attorney's fee which plaintiffs would be obliged to pay out in this action as one part of the cost of recovering possession of the land. The witness testified, in substance, that at the lowest figure the attorney fee would be from $500 to $550. The testimony was objected to upon the ground that it was not the proper measure of damages, was incompetent, irrelevant, and immaterial, and no foundation laid for the proof. These objections were overruled by the court, and defendant excepted. These rulings are assigned as error in this court. We think these exceptions must be sustained. The prevailing general rule is that expenditures for attorneys' fees made by the successful party cannot be shown at the trial as an element of damages. This is true, especially where the statute, in terms, allows specific sums as taxable costs, and as indemnity to the suitor for his expenses, over and above disbursements. The statute of this state expressly allows such costs, as distinguished from the disbursements made by the prevailing party. Comp. Laws, § 5186. As to the general rule that money paid as attorneys' fees cannot be shown in evidence as an element of damages, see the following: Day v. Woodworth, 13 How. 372;Fairbanks v. Witter, 18 Wis. 287;Barnard v. Poor, 21 Mass. 278;Seeman v. Feeney, 19 Minn. 79, (Gil. 54;)Jandt v. South, 2 Dak. 46, 47 N. W. Rep. 779;Otoe Co. v. Brown, (Neb.) 20 N. W. Rep. 274. Nor do we think that the section of the Code which prescribes the measure of damages for the “unlawful occupation” of real property (Comp. Laws, § 4601) should be so construed as to change the general rule. Besides the value of the use of the land, the section authorizes the recovery of “the costs, if any, of recovering the possession.” We think the term “costs,” as used in the statute, was intended to have a limited and technical meaning. In general use, the term “costs,” when employed with reference to litigation, embraces both disbursements and specific sums allowed by statute as indemnity to the prevailing party for his expenses. In a narrower sense, the term “costs” excludes disbursements. Giving the term its most liberal signification, it could embrace...