Ley v. First Nat. Bank of Ashley
| Decision Date | 22 March 1927 |
| Docket Number | No. 5276.,5276. |
| Citation | 212 N.W. 841,55 N.D. 227 |
| Parties | LEY v. FIRST NAT. BANK OF ASHLEY. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The maxim, “He who seeks equity must do equity,” applies only to cases where plaintiff is wholly without a remedy at law, and is entirely dependent on a court of equity for relief.
In an action to recover for the wrongful taking and conversion of property, to ascertain the amount and value of the same, and that such value be declared a trust fund for the benefit of the plaintiff, the defendant cannot plead in defense of his wrongful act a counterclaim against plaintiff, of a joint indebtedness of plaintiff, and another, to the defendant.
The taking and conversion of the plaintiff's property by the defendant in the case at bar was a wrongful act, and under section 7251, C. L. 1913, the defendant cannot take advantage of his own wrong.
Appeal from District Court, McIntosh County; Geo. M. McKenna, Judge.
Action by Gottlieb Ley against the First National Bank of Ashley for conversion. From a judgment for plaintiff, defendant appeals. Affirmed.
W. H. Stutsman, of Mandan, for appellant.
Curtis & Remington, of Lisbon, for respondent.
This is an action to recover the proceeds of an undivided one-fourth interest in a crop raised on a quarter section of land in McIntosh county, in 1925.
The defendant admits the taking and the disposition of all of the crop raised on said land in 1925, but denies that the plaintiff had any interest in such crops, and further alleges that if plaintiff had any interest in the crop, it was voluntarily surrendered by the plaintiff to the defendant to be applied on an indebtedness of John Ley, a brother of the plaintiff, and the said defendant sets up a counterclaim, alleging that the plaintiff was liable to the defendant jointly and severally with his brother John Ley, by reason of plaintiff having signed the notes with the said John Ley, which notes represent the indebtedness upon which the proceeds of said crop applied.
The plaintiff replied to the counterclaim, alleging that the property which he seeks to have held in trust for him was, and is, to him exempt, and the defendant is by unconscionable conduct estopped from asserting a counterclaim. The plaintiff further alleges that the debt upon which the proceeds of the crop were applied was the debt of John Ley; that the plaintiff signed the note or notes as surety only; that said note was amply secured by chattel mortgages upon horses, live stock, and the farm machinery of said John Ley; that the defendant wrongfully appropriated the property and money of this plaintiff to the payment of said obligation, delivered all of said notes to the said John Ley, satisfied the mortgages, and allowed the said John Ley to remove his property from the state, and to sell and dispose of the same, and thus destroyed all rights of the plaintiff to be subrogated to the rights of the said defendant. Plaintiff further alleges that the notes are void, not having been executed in conformity with chapter 91, Sess. Laws of 1921, in relation to renewal notes.
The trial court found as facts that John Ley and Gottlieb Ley, the plaintiff, each owned a one-half interest in said land; that the plaintiff owned a one-fourth interest and John Ley a three-fourths interest in the said crop raised on said land in 1925; that the defendant had both actual and constructive notice of the rights of the plaintiff in said land and in said crop; that the total proceeds of said crop amounted to $2,766.24, and one-fourth interest of the plaintiff amounted to $691.93; that in the fall of 1925 the defendant through its officers took possession of said crops and shipped them in the joint names of the defendant and the said John Ley to a grain concern outside the state of North Dakota; that the proceeds of the said crop were remitted to and received by defendant and the said John Ley jointly, and the defendant deposited the same in the account of said John Ley, and on the 17th day of October, 1925, the defendant appropriated to itself out of the funds deposited to the credit of the said John Ley the sum of $1,953.80, applied the same on the indebtednes of John Ley, and the balance of said funds were by the said John Ley checked out and used by him for his own private purpose; and that all the acts of the defendant in the...
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Beavers v. Walters
...his own wrong against the victim of his wrongdoing. See, e.g., Lizakowski v. Lizakowski, 307 N.W.2d 567 (N.D.1981); Ley v. First Nat'l Bank, 55 N.D. 227, 212 N.W. 841 (1927). The maxim is part of the "clean hands" doctrine of equity. 27 Am.Jur.2d Equity Sec. 137 (1966). A defendant who has ......