Kvello v. Taylor

• Decision Date: 21 May 1895
• Citation: 63 N.W. 889,5 N.D. 76
• Court: North Dakota Supreme Court

63 N.W. 889

5 N.D. 76

ANNE M. KVELLO v. F. W. TAYLOR

Supreme Court of North Dakota

May 21, 1895

Appeal from District Court, Ransom County; Lauder, J.

Action by Anne M. Kvello and others against F. W. Taylor to recover possession of wheat. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Ed Pierce and Edward Engerud, for appellant.

P. H Rourke, for respondents.

OPINION

BARTHOLOMEW, J.

This action involves the ownership of a quantity of wheat of which plaintiffs claim to be the owners, and which had been seized by the defendant, Taylor, as sheriff of Ransom County, under and by virtue of a special execution, to him directed, issued upon a judgment foreclosing a chattel mortgage given by one Nels O. Anderson, and which, it is claimed, covered this particular wheat. The admitted facts in the case are as follows: In 1890 one Oium was the owner of the N. W. 1/4 of section 10, township 135, range 55, in Ransom County. In June of said year Oium sold the land to said Nels O. Anderson by a land contract, upon what is called the "crop plan," calling for a deed upon the payment of the amount and performance of the conditions on the part of Nels O. Anderson therein specified. Anderson, with his family, at once took possession of the land, it being unbroken prairie land at the time, and proceeded to break up a portion of it and erect buildings thereon. It constituted his homestead. In November, 1891, Mr. Anderson executed a chattel mortgage to one Johnson, covering the crop of wheat to be grown upon said land in the year 1893. Johnson sold and transferred the note secured by the mortgage to the Sheldon State Bank, and in the fall of 1893 the bank foreclosed the mortgage by action, and it was under this foreclosure that the wheat was seized, it being wheat grown on said land in 1893. In 1891 Oium deeded the land and assigned the Anderson contract to Anne M Kvello, one of the plaintiffs. In the fall of 1892 Nels O. Anderson, by agreement with Anne M. Kvello,--her husband, Mr. Kvello, acting for her, surrendered and abandoned his land contract. About 30 days thereafter, Mrs. Kvello, by her said husband, leased the land to Eli O. Anderson, the other plaintiff and the wife of Nels O. Anderson, for the year 1893.

Plaintiffs claim that the wheat seized was raised under this lease. By the terms of the lease, the title to the entire crop of 1893 was to remain in Mrs. Kvello until certain conditions were performed, which it is admitted were not performed at the time of the seizure. The defendant claims that the pretended surrender by Nels O. Anderson, and the subsequent lease to Eli O. Anderson, were colorable only, and were in fact made for the purpose of defrauding the creditors of Nels O. Anderson, and particularly the plaintiff in the special execution; that this purpose was known to and aided and abetted by Mrs. Kvello; that in fact the land contract was not surrendered, but was continued in full force, and Nels O. Anderson continued to act thereunder, and did in fact raise the crop of 1893 by virtue of his rights given by the contract, but under the fraudulent cover of a pretended lease to his wife. The jury resolved the issues in favor of the plaintiffs.

Under the first assignment of errors it is urged that this verdict is not supported by the evidence. The abstract is somewhat voluminous. All the circumstances surrounding these transactions were brought out in detail. We cannot disturb the verdict upon the ground assigned. It has support in the evidence. The proper triors of fact have declared that such evidence was sufficient to satisfy them and that must satisfy us. We may remark, in passing, that appellant's severest criticisms upon the verdict arise upon the lease, from the...