Laderoute v. Chale
| Decision Date | 25 May 1900 |
| Citation | 83 N.W. 218,9 N.D. 331 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cavalier County; Sauter, J.
Action by Jean B. Laderoute against Julia Chale and John B. Chale. Judgment for defendants. Plaintiffs appeal.
Affirmed.
Plaintiff's action dismissed; and judgment affirmed.
J. C Monnet, for appellant.
W. J Kneeshaw, for respondents.
This action is brought to recover damages for an alleged breach of a covenant of warranty of peaceable possession and quiet enjoyment. The action was tried without a jury, and judgment was entered in the District Court dismissing the action, with costs against the plaintiff. The record embraces all the evidence, and the appellant asks a trial anew in this court.
The facts which we regard as controlling the result in this court may be briefly stated as follows: The land involved in this controversy was on April 10, 1889, owned in fee simple by one Jean B. Rivard, who on said date negotiated and obtained a loan of $ 250 from the Fargo Loan Agency, and by the terms of which loan the principal sum borrowed was to become due in five years from said date, and interest thereon at the rate of 10 per cent. per annum upon the principal was agreed to be paid annually in installments. By an agreement entered into between said borrower and lender, said loan was secured as follows: By a note for $ 250 falling due in five years from said date, and drawing interest at the rate of 7 per cent per annum, payable annually. Said note was signed by said Rivard and his wife, and was made payable to the Fargo Loan Agenecy. To secure the payment of this note, said Rivard and his wife executed a mortgage upon said land, and delivered the same to said Fargo Loan Agency, in whose favor it was made. Said mortgage embraced the usual covenants, including a power of sale, which power became operative, by its terms, upon a default in the payment of such interest, as well as upon other conditions set forth in the instrument. To further secure the payment of interest on said principal sum borrowed, and at the agreed rate of 10 per cent. per annum, said Rivard and his wife on said 10th day of April, 1889, made and delivered to said Fargo Loan Agency another mortgage on said real estate, to secure a series of annually maturing interest notes, and bearing the same date as the principal note, and which last-mentioned series of notes aggregated at their maturity the sum of $ 37.50, which amount was the total of the interest to be paid on said principal sum of $ 250 for a period of five years, when computed at the rate of 3 per cent. per annum. Said last-mentioned mortgage also contained, among other stipulations, a power of sale, to become operative upon default in paying said last-mentioned notes, or either of them. The mortgage first described was filed for record April 24, 1889, and the mortgage last referred to was filed May 5, 1889; but both of said mortgages and both series of notes were given and received as part and parcel of the same loan transaction, viz: as security for the payment of said loan of $ 250, together with interest thereon at the stipulated rate of 10 per cent. per annum, and said securities were given for no other or different purpose. Subsequently, and while both of said mortgages were outstanding and unpaid, the land in question was conveyed to said defendant Julia Chale; and still later, and on the 22d day of September, 1889, said Julia Chale and said defendant John B. Chale, who is her husband, conveyed said premises to the plaintiff by their joint deed, which deed embraced, in addition to the usual covenants for peaceable possession, quiet enjoyment, and warranty, the following covenants as to incumbrances: "That the same are free from all incumbrances, except a first mortgage for two hundred and fifty dollars." It appears and is conceded that the purchase price of said premises was $ 800, and that said sum of $ 250 was included in the purchase price, and agreed to be paid by the plaintiff. The plaintiff paid upon said purchase price the following amounts, viz: $ 50 in the year 1891; $ 400 in the year 1892; and $ 100 was paid in land in the year 1893. No part of said principal sum of $ 250 was ever paid, and none of the notes secured by said mortgage for $ 37.50 which fell due after the year 1891 were ever paid, and none of the coupon interest notes annexed to said 7 per cent. note were ever paid after the year 1892. It further appears that by reason of the plaintiff's default and neglect to pay the notes maturing after the year 1891, and secured by said mortgage for the sum of $ 37.50, said mortgage was foreclosed, by advertisement, for the sum of $ 18.35, which was the balance claimed to be due upon said mortgage at the date of the foreclosure, after deducting the total amount of certain payments thereon theretofore made by the plaintiff. At such foreclosure sale said Fargo Loan Agency was the purchaser, and, said premises never having been redeemed from the foreclosure sale, said Fargo Loan Agency received a sheriff's deed of the premises, and thereby became vested with the title to said premises in fee simple. The foreclosure sale was made and the sheriff's certificate of sale delivered on the 7th day of October, 1893; and thereafter, and after the year of redemption had expired, but before the sheriff's deed was delivered, and on the 1st day of February, 1895, said Fargo Loan Agency entered into a contract of sale of said premises, whereby it agreed to sell said premises to one Samuel Clairmont for the sum of $ 600, to be paid in installments, and whereby said Clairmont was to have the immediate possession of said premises. Subsequently, and in the month of March, 1895, and upon the repeated demands of said Clairmont for the possession of said land, the plaintiff yielded possession to said Clairmont, and possession thereof was taken by said Clairmont under his said contract. On the 6th day of July, 1896, a sheriff's deed of said premises was delivered to the Fargo Loan Agency pursuant to said foreclosure sale, and which deed was thereafter duly recorded. Plaintiff alleges that, while he was in possession of said premises under his said deed, he improved the same by clearing and breaking the same, and that such improvements were worth the sum of $ 200, and that in the season of 1894 he plowed 75 acres of said land, which was worth $ 1.50 per acre. Plaintiff demands judgment for these amounts, in addition to the $ 550 paid on the purchase money, and $ 94 paid as interest...
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