Magnusson v. Linwell

• Decision Date: 24 April 1900
• Citation: 82 N.W. 743,9 N.D. 157
• Court: North Dakota Supreme Court

82 N.W. 743

9 N.D. 157

AUGUST MAGNUSSON, et al v. M. V. LINWELL, et al

Supreme Court of North Dakota

April 24, 1900

Appeal from District Court, Grand Forks County; Fisk, J.

Suit by August Magnusson and Sven Magnusson against M. V. Linwell and Charles Gustafson. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Affirmed, with costs.

B. G Skulason, for appellants.

H. N Morphy and Bosard & Bosard, for respondents.

OPINION

WALLIN, J.

This action is brought to obtain a specific performance of a written contract made between the parties to this action, dated October 28, 1892, whereby the defendants, in consideration of an agreed purchase price of $ 2,700, payable in five annual installments, drawing interest at 10 per cent., agreed to sell, and upon full payment to convey, to the plaintiffs, in fee simple, a certain quarter section of land described in the complaint. Plaintiffs allege that they have demanded a deed of the land, and that they "have fully and faithfully performed on their part all the conditions precedent imposed on them by the terms of the contract of sale," and further allege that, if the court shall find that they have not fully paid for the land, they are ready and willing to pay any balance which may be found unpaid. By their answer defendants admit that they entered into the contract as stated in the complaint, and admit that at divers times plaintiffs have paid upon the purchase price of the lands certain sums, amounting in the aggregate to $ 1,740.29. and allege that said payments have all been credited upon the installment notes given for said purchase price of the land, and defendants deny that said price has been paid in full, and allege that there is still $ 2,208.65 which has never been paid. Defendants further allege, in substance, that said plaintiff (Sven Magnusson) has no interest whatever in said land, or in the result of this action, for the reason that on or about the 8th day of February, 1895, he (the said Sven Magnusson) assigned and transferred to the plaintiff August Magnusson all his right, title, and interest in or to the land; and defendants further aver that the plaintiff August Magnusson has no interest whatever in the land in question, for the reason that the said August Magnusson, on the 23rd day of December, 1897, did, in consideration of the cancellation of an unpaid balance of $ 2,208.65 then due on the purchase price of said land, and for other valuable considerations, quitclaim all his interest under said contract, and in said land, to said defendants, and did then and there, and upon such consideration, release and cancel said contract, and released defendants from all liability arising from or on account of such contract. Defendants ask that said contract be adjudged canceled, and that the defendants be released and absolved from all liability under said contract, and for their costs and disbursements. The case was tried in the District Court without a jury, and a judgment was entered in favor of the defendants for all the relief asked for in their answer. Plaintiffs appeal from such judgment, and have demanded a trial anew in this court of the entire case.

It will be convenient, in disposing of the case in this court, to set out a portion of the findings made and filed by the trial court as a foundation for the judgment entered in that court: "(1) On the 28th day of October, 1892, and for some time prior thereto, the defendants, M. V. Linwell and Charles Gustafson, were seized and possessed of the land in suit. (2) On the 28th day of October, 1892, the defendants contracted to sell the said lands to the plaintiffs, which contract was evidenced by a written instrument, marked Exhibit 1, as follows: (Here the written contract is set out in the findings at length, but, as the substance of the contract has already been stated in general terms, we deem it unnecessary to copy it in full for the purposes of this opinion. (3) Upon the execution and delivery of the said instrument, the plaintiffs entered into the actual possession of the lands in controversy. (4) On or about the 8th day of February, A. D. 1895, the plaintiff Sven Magnusson assigned and transferred all his interest in said contract (Exhibit 1) to August Magnusson by an instrument in writing (Exhibit 13), as follows: (Here follows Exhibit 13, but as the same is of considerable length, and, moreover, is quite inaccurate in its description of the contract of sale in question, we deem it unnecessary, under the circumstances of this case, to set it out at length. The instrument was, however, found by the trial court to have been executed, i. e. signed and sealed, by Sven Magnusson, the plaintiff, in the presence of two subscribing witnesses, on the 28th day of February, 1895; and, as has been seen, the trial court finds as a fact that Sven Magnusson intended, in executing this instrument, to transfer all of his interest under the sale contract in question to his brother, August Magnusson.) (5) On the 7th day of December, 1893, the plaintiffs paid to the defendants upon the said contract (Exhibit 1) the sum of $ 785. (6) The plaintiff August Magnusson paid on account of the said contract; on the 1st day of December, 1895, the sum of $ 495.39, and on the 4th day of December, 1896, the sum of $ 459.40. (7) On the 23d day of December, 1897, the plaintiff August Magnusson and the defendants had a complete settlement of the matters involved in the said contract (Exhibit 1), and the several payments thereon, and there was found to be due from the said plaintiff to the said defendants on the said date the sum of $ 2,208, balance of the purchase price of the said land. (8) On the 23d day of December, 1897, by an instrument in writing indorsed upon the duplicate of the contract (Exhibit 1), the plaintiff August Magnusson quitclaimed and surrendered the said land described in the said Exhibit 1 to the defendants herein, and the consideration for the said transfer was the said balance due to the defendants for the said land under and by virtue of the terms of the said contract (Exhibit 1). (9) That the defendants thereupon entered into the possession of the said land, and are still seized and possessed of the same." Upon said findings, the court found, in substance, as a legal conclusion, that the defendants were entitled to judgment as prayed for in their answer.

There are other allegations of fact in the complaint as to which considerable testimony was offered at the trial, and concerning which counsel have contended more or less in this court in their briefs and oral arguments, but we shall not have occasion to further allude to such other allegations and matters of fact in this opinion; for the reason that, in the view taken of the entire case by this court, as presented by the record, the facts found by the trial court, as above set out, are decisive of the result in this court, if such facts are supported by the evidence, and, in our judgment, the facts found below are supported by a decided preponderance of the evidence in this record.

The judgment, as...