Lee v. Shide, 6602.

• Decision Date: 17 November 1939
• Docket Number: No. 6602.,6602.
• Citation: 288 N.W. 556,69 N.D. 541
• Parties: LEE v. SHIDE.
• Court: North Dakota Supreme Court

69 N.D. 541

288 N.W. 556

LEE

v.SHIDE.

No. 6602.

Supreme Court of North Dakota.

Nov. 17, 1939.

Syllabus by the Court.

1. Question, presented on appeal from a judgment denying an injunction, held not moot because of expiration of time within which the remedy of injunction might be granted, where the judgment also determines rights over which an actual controversy still exists.

2. A purchaser under a contract for sale of real estate is not entitled to possession until full performance unless the contract so provides.

3. Where a purchaser under a contract for sale of real estate, who is not entitled to possession, leases the property and later rescinds his contract to purchase, the lease is void as to subsequent purchasers of the real estate.

Appeal from District Court, Grand Forks County; M. J. Englert, Judge.

Action by Robert E. Lee against John Shide to restrain the defendant from entering on certain realty until after a certain date. From a judgment of dismissal, the plaintiff appeals.

Judgment affirmed.

Carroll E. Day, of Grand Forks, for plaintiff and appellant.

W. B. Arnold, of Grand Forks, for defendant and respondent.

BURKE, Judge.

Plaintiff brought this action in June 1938, praying for a judgment restraining and enjoining the defendant from entering upon certain described real estate in Grand Forks County, North Dakota, until after November 1, 1938. The case was tried in the District Court of Grand Forks County on August 25, 1938. At the close of plaintiff's case, the defendant moved that the action be dismissed. The court granted the motion and the judgment of dismissal was entered on September 7, 1938. On March 4, 1939, the plaintiff appealed from the judgment of dismissal and demanded a trial de novo in this court. The plaintiff claimed the right to the possession of the premises under an oral lease from one Edmund Dubs. The defendant asserted his right as the owner of the land. In October 1937, the land in question was owned by the Ayers National Bank of Jacksonville, Illinois. The bank was in receivership, and one Roy K. Adair was the receiver. Edmund Dubs had been negotiating with the receiver for the purchase of the property, and on October 16, 1937, sent him the following telegram:

“Lakota, N. Dak. October 16, 1937

Roy K. Adair, Receiver

Jacksonville, Illinois

Will Give Three Thousand Cash You Pay 1937 Taxes and Brokerage Commission Thursday Furnish Abstract And Good Title Offer Good Through Monday.

Ed. Dubs”

On October 18, 1937, the receiver sent Dubs the following telegram:

“Jacksonville, Ill. October 18th

Ed. Dubs, Lakota, N. Dak.

Hotel Lakota

Your Offer Three Thousand Dollars Cash Subject To Terms and Conditions Specified In Your Telegram Sixteenth Accepted Subject To Approval Of The Comptroller of the Currency Stop Sale Will Be Consummated Without Advertising Stop Mail Ten Percent Deposit Together With Signed Offer In Accordance With Department Ruling.

Roy K. Adair, Receiver The Ayers National Bank of Jacksonville.”

On the same day, Dubs forwarded to the receiver the signed offer referred to in the receiver's telegram together with his check for $300, which represented ten percent of the offered purchase price. On October 19, 1937, Dubs leased the land to the plaintiff for a period of one year. On November 1, 1937, the Circuit Court of Morgan County, Illinois, upon application of the receiver confirmed the sale to Dubs, and directed the receiver to execute a deed of the land to him. However, on October 28, 1937, Dubs had stopped payment on his $300 check and the receiver did not execute the deed. From the record it appears, that thereafter the contract for the purchase of said property, if there had been a contract, was rescinded by mutual consent. On November 15, 1937, the property was conveyed to one Claud Ladue by receiver's deed, and on November 22, 1937, Claud Ladue conveyed the property to the defendant, John Shide. The plaintiff had farmed the land during the crop year of 1937, under a lease from the Ayers National Bank. He was in possession of the property at the time of the conveyance thereof to the defendant. He had ploughed the land to make it ready for the 1938 crop. It is not clear in the record by what means the defendant secured possession of the property, but the record does show, that he sowed the 1938 crop and had harvested it at the time of this trial.

It has been suggested that this case is moot for the reason that the only relief demanded by the plaintiff was, that the defendant be enjoined from entering upon the described premises until after November 1, 1938, and that when this appeal was taken on March 4, 1939, the time within which the court might grant the relief demanded, as well as the time within which plaintiff might ask such relief, had expired.

[1] It is true, that “Equity will not attempt to do a vain thing nor will it by injunction attempt to prevent an injury that has already been sustained.” Thompson v. Vold, 38 N.D. 569, 165 N.W. 1076, 1077;School District v. Thompson, 27 N.D. 459, 146 N.W. 727;Sayre v. Village of Alsen, 48 N.D. 1138, 189 N.W. 240;State v. One Buick Automobile, 48 N.D. 348, 185 N.W. 305. However, in a suit for an injunction, where “other questions not rendered...