Martin v. Royer
| Decision Date | 18 March 1910 |
| Citation | 125 N.W. 1027,19 N.D. 504 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Foster county; Burke, J.
Action by J. E. Martin against Jesse E. Royer and another. From a judgment granting inadequate relief, plaintiff appeals.
Affirmed.
C. B Craven, for appellant.
There is a distinction between cropper and tenant. 8 Am. & Eng Enc. Law, 324, and cases cited; Lewis v. Owans, 124 Ga. 228, 52 S.E. 333; Garrick v. Jones, 2d Ga.App. 382, 58 S.E. 543; Bourland v. McKnight, 79 Ark. 427 96 S.W. 179; Goodson v. Watson, 54 S.E. 84; Moore v. Linn, 91 P. 910; Loveless v Gillian, 70 S.C. 391, 50 S.E. 9; Morgan v. Rummerfield, 117 Wis. 620, 98 Am. St. Rep. 951; 12 Cyc. 979, and cases cited under note 17; 12 Cyc. 980, and cases cited under note 20; Whithed v. St. Anthony & D. El. Co. et al., 83 N.W. 238.
Transfer of lease does not carry right to accrued rent. 24 Cyc. 1173, 1175; Tremont and W. Hotel Co. v. Gammon, 91 S.W. 337; Kingsley v. Sauer, 4 A.D. 507; Cobb v. Johnson, 126 Ala. 618; 24 Cyc. 928; Payton v. Kennedy, 70 Miss. 865; Miners Bank v. Heilner, 47 Penn. St. 452; Miller v. Winchell, 70 N.Y. 437.
Where a debt is claimed by two persons not in privity with each other, and the debtor pays to one, while the other is entitled to it, the latter cannot recover of the former. Hathaway v. Town of Cincinnatus, 2 N.Y. 444; Butterworth v. Gould, 41 N.Y. 450; Patrick v. Metcalf, 37 N.Y. 332; Corey v. Webber et al., 55 N.W. 982.
T. F. McCue, for respondents.
Unaccrued rent passes with sale of rented premises unless specifically reserved. Whithed v. St. Anthony & Dak. El. Co., 9 N.D. 224, 83 N.W. 238.
Royer can recover from Martin, who converted the amount due for plowing. Cutler v. Fanning, 2 Iowa 580; Allison & Crane v. King, 25 Iowa 56; 2 Enc. of Law, 1079; Olston v. Gillespie, 78 Ga. 665; Chamberlin v. Gilman, 14 P. 107; Brand v. Williams, 13 N.W. 42.
Where a party who retains money to which he is not entitled, the law creates a promise to pay. Abel v. Love, 17 Cal. 234; People v. Houghtaling, 7 Cal. 348.
This is an action to foreclose a real estate mortgage. In April, 1903, the plaintiff was the owner of the land described in the complaint, and entered into a contract in writing with one Southerland, under which the land was to be farmed during the season of 1903. After the execution and delivery of the contract for the farming of said land, the plaintiff conveyed it to the defendant, and, to secure payment of a part of the purchase price, he executed a mortgage upon the land to the plaintiff, and this action is brought to foreclose the mortgage given to secure the note representing the balance due upon the purchase price of the land.
There is no dispute or controversy between the parties as to the amount due upon the mortgage. The controversy relates to a question as to the construction of the contract between the plaintiff and Southerland for the farming of the land during the farming season of 1903, and whether certain money due thereunder belongs to the plaintiff or to the defendant. The contract was what is commonly denominated a "cropping contract." It provided that the party of the first part (Southerland) was to well and faithfully till and farm the land during that season, according to the usual course of husbandry, and sow or plant it as the second party should direct, and was to furnish all the machinery and hired help used in the cultivation of the same. The owner of the land agreed to furnish all the seed and to pay one-half of the threshing bill. There were other stipulations in the contract covering the shipment of the grain raised and the title thereto until division, and as to other matters which we deem it unnecessary to set forth here. The contract also contained the following stipulation: "It is expressly agreed and understood that there is now plowed and ready for crop 235 acres, which the party of the first part agrees to plow an equal number of acres as soon as the crop is removed in the fall, and if the party of the second part desired it to be plowed, if not plowed, said first party shall pay said second party $ 1.25 per acre from the proceeds of the crop aforementioned, for the 235 acres now plowed."
It is in reference to the latter clause of the contract that there is any dispute or issue raised in this suit. Southerland did not plow back the 235 acres referred to in the contract. The plaintiff brought an action against him to recover the stipulated sum to be paid if such plowing was not done, and recovered judgment in said action. Southerland paid the amount of said judgment to the plaintiff. It is the contention of the defendant that the collection of said money was wrongful, and that the same should have been paid to him by Southerland. It is the contention of the plaintiff that he was entitled to the money under said contract. The sole question, therefore, for our consideration, is whether the counterclaim, amounting to $ 293.25 was correctly allowed by the trial court. The trial court found as a fact that it was agreed when the deed was given that Royer, the grantee therein, would be subrogated to the rights of Martin in respect to everything under the lease or contract for the cropping of the land in question. It is, however, claimed by the appellant that this finding is not sustained by competent evidence. In our opinion this fact becomes immaterial so far as evidence extrinsic of the deed is concerned. It is undisputed that the deed conveyed all of Martin's title to and ownership in the land to the defendant. It is also conceded that the deed contained no reservation whatever, and that plaintiff had expressed no option that the money be paid in place of plowing the land when the deed was delivered. There is no claim that this money had been paid before the deed was delivered, and no question raised as to the proceeds of the crop not being sufficient. From these facts, we think it followed, as a conclusion of law, that the right to this money was assigned to the defendant and passed to him by virtue of the deed. This is not denied, so far as Martin's share of the crop is concerned. The contention of the defendant is that so far as to the money to be paid if the plowing was not done, a different rule prevails. He claims that this money was personal property, entirely disconnected from the land or contract for cropping or working on shares, and that the same was not assigned by the deed.
Whether the contract is technically a lease or a contract of employment, or one of adventure, we need not determine on this appeal. The result will be the same whatever that contract may technically be as a matter of law as to its general features. It is certain that the money due on the failure to do the plowing represented the compensation for the use of the plowed land for crop purposes. Rent is compensation for the use of land. It is immaterial whether it is to be paid in money or services. Whithed v. St Anthony Ele. Co., 9 N.D. 224, 83 N.W. 238, 50 L.R.A. 254, 81 Am. St. Rep. 562; Wegner v. Lubenow, 12 N.D. 95, 95 N.W. 442. The plaintiff engaged with Southerland to have the land cropped during the year 1903, and for the use of the land was to receive a share of the crop. Some of the land was already plowed when the contract was made, and for the use of the plowed land Southerland bound himself...
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