E. J. Lander & Co. v. Deemy
| Decision Date | 24 February 1920 |
| Citation | 176 N.W. 922,46 N.D. 273 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Ward County, Leighton, J defendant appeals.
Affirmed.
W. H Sibbald, for appellant.
"Retrospective laws that violate no principle of natural justice, but that on the contrary, are in furtherance of equity and good morals, are not unconstitutional because retrospective." Cuyahoga Falls Real Estate Asso. v. McCaughy, 2 Ohio St. 152.
The question of reasonable time is one primarily for the legislature to determine. The courts cannot fix a time different from that fixed by the legislature within which suits may be brought, nor, if the legislature fails to fix any time, can the courts supply the legislative lapse. 25 Cyc. 986; Craig v. Herzman, 9 N.D. 140; Merchants Nat. Bank v. Braithwaite, 7 N.D. 358.
The justice's court was without jurisdiction to try this case because the mere service of a notice does not, of itself effect a cancelation of the contract, and until the contract is canceled the action will not lie. Comp. Laws 1913, § 9069, subd. 5.
Justice's court had no jurisdiction because the pleadings raised, in good faith, an issue of ownership. Murray v. Burris, 6 Dak. 160, 42 N.W. 25; Hegar v. De Groat, 3 N.D. 354.
The district court had no jurisdiction where the justice's court had none, because the pleadings on which the judgment was entered were the pleadings of the justice's court. Vidger v. Nolin, 10 N.D. 351.
Bradford & Nash and Murphy & Toner, for respondent.
The statute in force at the time this contract for deed was entered into became a part of the contract, and therefore the right of the vendor to cancel the contract under that statute became a vested right prior to the taking effect of chapter 151 of the Session Laws of 1917. Mortgage Co. v. Board of Revenue, 81 Ala. 110, 1 So. 30; Von Schmidt v. Huntington, 1 Cal. 55; Ducey v. Patterson, 37 Colo. 216, 9 L.R.A. (N.S.) 1066, 86 P. 109; Lane's Appeal, 57 Conn. 182, 4 L.R.A. 45; McCarthy v. Habis, 23 Fla. 508, 2 So. 819; People v. Gage, 233 Ill. 477, 500, 84 N.E. 616; Rogers v. Rogers, 137 Ind. 151, 36 N.E. 895; Knoulton v. Rebendaugh, 40 Iowa 114; Douglas County v. Woodward (Kan.) 84 P. 1028.
In every case of doubt the doubt must be resolved against the retrospective effect of such a statute. People v. Lour, 236 Ill. 608, 86 N.E. 577; Dyer v. Belfast, 88 Me. 140, 33 A. 790; Grander v. Milton, 9 Gill, 299, 52 Am. Dec. 694.
The appellant being merely and admittedly a tenant, the question of title was not in issue, and could not be brought in issue or litigated. Comp. Laws 1913, §§ 5343, 5344; Brown v. Persons, 48 Ga. 60; Blinn v. Robertson, 24 Cal. 127; Kendall v. Moore, 30 Me. 133; Hoffman v. Clark, 63 Mich. 175; Stansbury v. Taggert, 3 McLean, 457; Turner v. Thomas, 13 Bush, 518; McCauley v. Waller, 12 Cal. 500.
In 1916 the defendant purchased of the plaintiff certain real property situated in the city of Kenmare in this state, and received a contract for deed therefor. Under the laws then in force it was provided that in case default is made in the terms or conditions of a contract for the future conveyance of real estate, and the owner or vendor desires to cancel the same, "he shall, within a reasonable time after such default, cause a written notice to be served upon the vendee, purchaser, or his assigns, stating that such default occurred, and that said contract will be canceled or terminated, and shall recite in said notice the time when said cancelation or termination shall take effect, which shall not be less than thirty days after the service of such notice." Comp. Laws 1913, § 8120. And Section 8122, Comp. Laws 1913, chapter 180, Laws 1915.
Under the terms of the contract in controversy the defendant agreed to pay to the plaintiff $ 18.27 on February 15, 1916, and $ 15 per month thereafter on the 15th day of each month, commencing on the 15th day of March, 1916, with interest at the rate of 8 per cent per annum from January 25, 1916. Defendant also agreed to pay all taxes levied upon the premises for the year 1915 and subsequent years. The defendant failed to make the payments due on August 15, 1916, and on the 15th day of each and every month thereafter. He also failed to pay any of the taxes assessed and levied against the premises. The plaintiff thereupon prepared a notice of cancelation as prescribed by the above-quoted statute, and caused the same to be served on defendant on November 28, 1917. The notice stated the default which had occurred and the amount due upon the contract. It further stated that the plaintiff had elected to cancel and terminate the contract, and that such cancelation would take effect thirty days after the service of such notice upon the defendant. The defendant failed to make the payments, or in any manner cure the default existing in the terms of the contract, and on April 30, 1918, the plaintiff caused to be served upon the defendant a notice to quit, in the form provided by § 9070, Comp. Laws 1913. The defendant having failed to surrender the premises, the plaintiff on May 20, 1918, commenced an action of forcible detainer in justice's court.
The plaintiff filed a written, verified complaint, wherein all the foregoing facts were fully averred. The defendant, in his answer, admitted the allegations of the complaint, but denied that the contract had been canceled, and averred that he was the owner of the land. These allegations were concededly based upon the contention that the notice of cancelation was insufficient for the reason that by virtue of chap. 151, Laws 1917, the time in which a purchaser or his assigns must be afforded an opportunity to comply with the conditions of the contract and cure the default had been extended to six months; and that inasmuch as the notice served in this case afforded only thirty days in which to cure the default it was of no effect. The trial in the justice's court resulted in a judgment in favor of the plaintiff. The defendant thereupon appealed from such judgment to the district court. In the notice of appeal it was specifically stated that it was "the intention of the plaintiff to appeal, as aforesaid, on questions of both law and fact and from the whole of said judgment, and a new trial is demanded in said district court." The trial in the district court resulted in findings and judgment in favor of the plaintiff, and the defendant has appealed from the judgment. No statement of case has been settled, and the case comes before this court upon the judgment roll proper. The trial court, in its findings, found all the facts heretofore stated.
Appellant contends:
(1). That the justice's court was without jurisdiction to try the case, because the pleadings raised the issue of ownership of the premises.
(2). That inasmuch as the justice's court had no jurisdiction, the district court had no jurisdiction, "because the pleadings on which the judgment was entered were the pleadings of the justice's court."
(3). That the mere service of the notice of cancelation did not cancel the contract, and that an action of forcible detainer does not lie until the contract is canceled.
(4). That in any event no sufficient notice of cancelation was served; i. e., that only thirty days' notice was given, while the law required six months' notice.
The propositions will be considered in the order stated.
(1, 2) It is true a justice of the peace has no jurisdiction to hear and determine a case wherein the boundaries of, or title to, real estate comes in question. Const. § 112. But the mere fact that such question is raised does not terminate the action or devest the justice of complete jurisdiction. Our statutes provide: "When such question arises upon a material issue joined . . . or . . . by controversy in the evidence as to a fact material to the determination of the issues in the action, the justice must discontinue the action and forthwith certify and transmit to the district court of his county all the pleadings and papers filed with him in such action. . . ." Comp. Laws 1913, § 9055. And "thereupon the district court shall have the same jurisdiction over such action as if it had been originally commenced therein. . . ." Comp. Laws 1913, § 9056.
It is difficult to see wherein the answer presented any real issue as to title. It admitted all the facts which formed the basis of the action. The denial of title, and argument of ownership, were merely legal conclusions based upon the contention that the...
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