Mahon v. Leech
| Decision Date | 15 May 1902 |
| Docket Number | 6731 |
| Parties | GEORGE MAHON v. W. F. LEECH |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by George Mahon, trustee, against W. F. Leech and others. Judgment for defendants. Plaintiff appeals. Affirmed.
Affirmed.
Morrill & Engerud, for appellant.
Each land contract was a written contract which cannot be altered except by another written contract or by an executed oral agreement. § 3936, Rev. Codes. Foster v Furlong, 8 N.D. 282.
The contracts secured the payment of the purchase price by reserving title of the land in the vendors. The equitable title to the land was in the vendees and the vendor retained the legal right as security only for the purchase price. Nearing v. Coop, 6 N.D. 345; Moen v Lillesal, 5 N.D. 327; Jones on Mtges. § § 226 and 1449; Pom. Eq. Jur. 105, 368, 1046, 1161, 1260 and 1261; Bartz v. Paff, 95 Wis. 848. The vendees had an estate in the land which could be sold. A mortgage of this interest could not be made except by writing. § 4699 Rev. Codes; Wells v. Harber, 56 Cal. 342; Stoddard v. Hart, 25 N.Y. 556. The trial court disregarded the judgment in the case of Leech v. Clemenson. This action commenced by Leech, the owner of the land, against the original vendees in these contracts of sale, sought to quiet title of plaintiffs. The defendants answered alleging an interest in the land by reason of these contracts of sale. Leech replied, admitting the contracts but claimed they were forfeited. The trial of the action was dismissed without prejudice. It was, therefore, competent to show by parol what was the exact question litigated and determined in that case. Russell v. Place, 94 U.S. 606; Young v. Black, 7 Cranch 565; Steam Packet Co. v. Sickles, 24 How 333; Herman on Estoppel, § § 211, 213, 216. Judgment was entered and no appeal was taken. The judgment was a conclusive adjudication that the contracts were still in force and had not been forfeited, cancelled or voluntarily surrendered, and was an absolute bar against the present claim. Morrill v. Morrill, 11 L. R. A. 155, and notes. Howard v. Huron, 5 S.D. 539; Eakin v. McCraith, 3 P. 838; Cushing v. Edwards, 25 N.W. 940; Herman on Estoppel, § § 107, 108 and 110; Thompson v. Roberts, 24 How. 233. A judgment concludes not only as to matters actually litigated but as to matters which could and ought to have been litigated. Enderlin State Bank v. Jennings, 4 N.D. 228; 1 Herman on Estoppel, § § 51, 74, 90, 91, 99, 102, 111, 119, 121, 127. The vendee in the contract had a right to cease farming and to pay the balance of the purchase price. Ceasing to farm would give rise to a cause of action to foreclose the contracts, and nothing more. Nearing v. Coop, 6 N.D. 345; Pom. Eq. Jur. § § 1190, 1193 and 1219. The provision for absolute forfeiture by reason of any default in the contracts was void. § 4684, Rev. Codes; Holridge v. Gillespie, 2 John. Ch. 30; Clark v. Henry, 2 Cow. 324; Niggler v. Maurin, 24 N.W. 369; Peugh v. David, 96 U.S. 332; Pom. Eq. Jur. § § 963, 1193 and notes. There was no writing relinquishing or transferring to Leech the trust estate's equity in the lands. This equity was an estate in the land. § 3300, Rev. Codes; Nearing v. Cooper, 6 N.D. Rep. 345; Moen v. Lillestad, 5 N.D. Rep. 327; Bartz v. Paff, 69 N.W. 297; Pom. Eq. Jur. § § 105, 368, 372, 1261, 1406.
Barnett & Reese and Jno. E. Greene for respondents.
Any declaration made by the creditor to his debtor as a release of it and which the debtor acts upon to the material alteration of his position will operate as a release. 1 Beach Mod. L. Contr. 464; Canal Co. v. Ray, 101 U.S. 522; Herzog v. Sawyer, 61 Md. 344; Fleming v. Gilbert, 3 Johns. 528. A dismissal without prejudice would neither estop the plaintiff with regard to the introduction of testimony nor bar his right of action for the relief sought or any other relief affecting the property in question. Gunn v. Peakes, 36 Minn. 177; Wanzer v. Self, 30 O. St. 378; Krutsinger v. Brown, 72 Ind. 466; N. P. Ry. Co. v. Ry. Co., 47 F. 536.
The plaintiff, in his capacity of trustee, and for the benefit of certain creditors of one G. A. Grover, an insolvent, seeks the specific performance of three certain contracts for the conveyance of real estate, which contracts constituted a part of the assets of the trust estate of said insolvent. The trial court found that all of the rights of Grover and all other persons in the contracts in question were wholly released and surrendered by a former trustee. Judgment was accordingly entered dismissing the action. Plaintiff has appealed from the judgment, and in a settled statement of case, containing all the evidence offered in the trial court, demands a review of the entire case in this court, under section 5630, Rev. Codes.
The facts which are material to a determination of this case may be stated as follows: On April 20, 1891, Addison Leech, Sr. now deceased, was the owner of four quarter sections of land situated in Cass county. On said date he entered into a written contract with one Peter Anderson for the sale of one of said quarter sections upon what is known as the "crop-payment plan." On June 15, 1891, he made a similar contract with Gilbert and Christian Clemenson for the sale of two quarter sections. And on March 21, 1892, he sold the remaining quarter section to Claus M. Olson. The aggregate purchase price of the four quarter sections was $ 16,489. The three contracts are identical, except as to dates, names of parties, description of property, and amount of purchase price. In each contract the purchaser agreed that he would pay all taxes assessed against the premises before they became delinquent, that during the life of the contract he would properly seed as much of the land as could profitably be sown, and that he would sow a specified number of acres of wheat each year. The purchase price, with annual interest thereon at the rate of 7 per cent., was to be paid by delivering one-half of the crop free of expense to the vendor within a reasonable time after threshing, which was to be completed by October 15th in each year. In consideration of the full and prompt performance of the covenants so made by the purchasers, the vendor agreed, upon a full and complete performance, to execute and deliver warranty deeds to the premises so agreed to be conveyed. The purchasers above named entered into possession under said contracts, and it is admitted that during the period of their occupancy, which extended to the fall of 1893, and included the delivery of the crop for that year, they fully complied with their covenants and agreements in said contracts contained. In the fall of 1893 all of said purchasers, by instruments in writing, assigned their interests in said contracts to one G. A. Grover, a merchant then doing business in Horace, in said county, which assignments were assented to by Addison Leech, Sr., by written indorsements upon the contracts. At the date of such assignments the total sum remaining unpaid on the three contracts was $ 12,388.55. There was also due at that time to Addison Leech, Sr., from the several purchasers, an aggregate additional sum of $ 3,486.58 for personal property which he had sold to them, which latter sum was evidenced by the separate notes of the purchasers, secured by their chattel mortgages. In consideration of the consent of Addison Leech, Sr., to his (Grover's) substitution to the rights of the original purchasers under the land contracts, he (Grover) assumed in writing the performance not only of the conditions of the contracts so assigned, but also the payment of the entire indebtedness of the original purchasers, which included both the land and personal property indebtedness above mentioned, amounting in all to the sum of $ 15,875.13. Thereafter Addison Leech, Sr., had nothing to do with the personal property covered by the chattel mortgages, and the same was apparently released to the Grover and the mortgagors pursuant to an agreement made by the former at the time of his purchase of the interests of the latter in the land contracts. By virtue of the assignments of the contracts, and his substitution thereunder, Grover took possession of the premises and farmed the same during the farming season of 1894, and in all things complied with the conditions of the contracts. In the fall of 1894 Grover became insolvent, and on December 19th of that year he entered into a written contract with one Albert E. Jones and a large number of his creditors whereby the said Jones was appointed trustee. In pursuance of such written contract, Grover transferred all of his property, both personal and real, including the contracts here in question, to said Jones, for the use and benefit of the creditors who had joined in said contract. Jones continued as trustee under said contract until about the 1st of May, 1900, when he was removed by an order of the district court of Cass county, and the plaintiff herein was appointed in his place. It appears that Jones took possession of the premises under his trusteeship, and operated the same during the farming seasons of 1895 and 1896 without default, and up to and including the delivery of the one-half of the crop for the year 1896. Jones did no plowing in the fall of 1896. On the contrary, he entirely abandoned the premises, and neither he, nor any person representing either Grover or the creditors, has been in the possession of the land since the division of the crop of 1896, or made any attempt or offer to comply with the obligations imposed by the contracts here in question. After applying all payments made by Grover from the proceeds of the crop grown in 1894, and by Jones from the proceeds of the crops grown in 1895 and 1896, there...
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