McClane v. White

• Decision Date: 01 January 1860
• Citation: 5 Minn. 139
• Parties: DANIEL McCLANE vs. MICHAEL WHITE.
• Court: Minnesota Supreme Court

5 Minn. 139

DANIEL McCLANE vs. MICHAEL WHITE.

Supreme Court of Minnesota.

Appeal from judgment of district court, Washington County.

Points and authorities for appellant: —

1. In ejectment, under the code, the complaint in this action is sufficient, and embraces everything necessary to be established on the trial. Ensign v. Sherman, 14. How. Pr. R. 439; Sanders v. Leary, 16 How. Pr. R. 308; Walter v. Lockwood, 23 Barb. 228, overrules Lawrence v. Wright, 2 Duer, 673, contra; How. N. Y. Code, 1059-60. Where no privity of contract or estate exists between the parties, notice to quit is not necessary. Jackson v. Fuller, 4 Johns. 215.

2. The defendant's offer, to show by parol testimony that the transfer of witness Whalen's interest in the lands to plaintiff was made as a security for an indebtedness of Whalen to him at that time, was properly overruled at the trial, and the plaintiff's objections thereto were well taken. Fols. 52-57. First, it was already in proof that the transfer was in writing, and the written transfer was the best evidence. Phil. Ev. (Ed. 1859) and notes, 567 to 578 inclusive and cases there cited. Second, it was immaterial evidence, because such proof could only be proper as tending to show that the deed from Holcombe to plaintiff May 7th, 1858, was intended as security for a debt, or as a mortgage, and there is no averment in the answer that the deed was so intended or executed for such purpose, or anything to that effect. The transfer of Whalen's interest in the land referred to, was the transfer of the written obligation or bond for a deed from Holcombe to Whalen. Fol. 7, Answer. This bond is averred to have been assigned by Whalen to plaintiff, as security for a debt. Fol. 11. Fols. 12 and 13 contain the only averments as to the object, intent, or purpose, for which the deed was executed. Third, the defendant was not a party to the written obligation, or bond for a deed, and had no interest in it, and it did not lie in a stranger to prove this; such evidence could only be permitted to a party to the transfer. Phil. Ev. (Ed. 1859), 648 and notes. Reading v. Weston, 7 Conn. 409; 8 Conn. 117, 120, 121, and 122. Fourth, the transfer was of an interest in lands, and void unless in writing, and parol proof was therefore incompetent. Minn. Stat. 457, § 8. Fifth, oral evidence is only admissible on the ground of fraud, mistake, or accident, neither of which is alleged in the answer. See authorities cited to sub. 3 of point 2.

3. The defendant's offer of the written transfer of the bond for a deed by Whalen to plaintiff, as the foundation and inducement of evidence, showing the purpose for which the transfer was made, to be shown by oral evidence, was properly overruled by the district court. Fols. 57, 58, 59, and 60, of return; and the objections made at the trial were well taken. Parol testimony is not admissible in a court of law to show that a deed absolute on its face was intended as a mortgage, and can only be received in equity in cases of accident, fraud, or mistake. Webb v. Rice, 6 Hill, 219 (Court of Errors.) The rule is correctly stated in Slee v. Manhattan Co. 1 Paige, 77 and 78, note 1.

Points and authorities for respondent: —

1. A wrongful entry by the defendant into the premises in controversy was not alleged, and a wrong will not be presumed; and where a party becomes rightfully possessed of premises, ejectment will not lie without a demand of possession and a refusal to quit. 1 Sugden on Vendors, 311 [264], § 69; Doe v. Jackson, 1 Barn. and Cress. 44; Right v. Beard, 13 East. 210; Hegan v. Johnson, 2 Taunt. 148; Doe v. Lawder, 1 Stark, 308; Doe v. Boulton, 1 Moody and M. 148; Doe v. Waller, 1 Car. and P. 596.

2. Where proof of a demand of possession, and refusal to quit or deliver possesion of real or personal property, is necessary, the demand and refusal must be alleged in the pleading. 1 Ch. Pl. 331.

3. Parol evidence is admissible both at law and in equity to show that an instrument, purporting on its face to be an absolute deed, is in fact a mortgage — and the court below erred upon the trial, in sustaining the plaintiff's objection to the offer of the defendant to show by parol evidence that the transfer of the witness Whalen's interest in the land to the plaintiff, was a security to the plaintiff for an indebtedness of Whalen to him at the time of the transfer. Gilchrist v. Cunningham, 8 Wend. 641; Swart v. Service, 21 Wend. 36; Taylor v. Baldwin, 10 Barb. 582; 1 Hilliard Real Prop. 396, § 20; Heyworth v. Worthington, 5 Blackf. 361; Strong v. Stewart, 4 Johns. Ch. 167; Dunham v. Dey, 15 Johns. 555; Wilton v. Cronley's Admr. 14 Wend. 63; Van Buren v. Olmstead, 5 Paige, 9; Chapman's Admr. v. Turner, 1 Coll. 244; Robertson v. Campbell et al. 2 Coll. 421; Dabney v. Green 4 Hen. and Mumf. 101; 4 Kent Com. 142, (8th ed.) 146; Taylor et ux. v. Luther, 2 Sumner, 228.

4. The court below erred upon the trial in excluding the written transfer (in the case marked "Exhibit B") by Whalen to the plaintiff of his interest in the land, when offered by the defendant as the foundation and inducement, or predicate, of the evidence for which the transfer was made, to be shown by oral evidence.

Curtis & Houston, for appellant.

W. H. Burt, for respondent.

ATWATER, J.

This was an action of ejectment brought by the appellant in the district court of Washington County, to recover possession of a piece of land in said county. The complaint alleges, that prior to and on the 7th day of May, 1858, one William Holcombe was lawfully possessed, and was seized and the owner in fee simple of a certain tract of land in Washington County (describing the same); that, being so possessed, and the owner of said land, at said time, the said Holcombe and wife, by deed, conveyed the same in fee simple to the plaintiff, which deed was duly recorded, etc.; and that on the date last aforesaid, the plaintiff became and was seized in fee, and since then has been and now is seized in fee of the said land; that on or about the first day of June, 1859, the defendant entered into and possessed said land, and since then has held the possession thereof, and has unlawfully and unjustly, and now does unlawfully and unjustly, withhold the possession of the said land from this plaintiff, to the plaintiff's damage one hundred dollars. The usual prayer for judgment follows.

The answer contains first, a denial that the defendant unlawfully or unjustly withholds the lands mentioned in the complaint. Next, the answer sets up, that on the 6th of April, 1858, the said William Holcombe was seized in fee of the land mentioned in the complaint, and on the same date one William W. Holcombe was seized of another tract of land adjoining the same; that on said date the said William Holcombe bargained and sold to one Patrick Whalen, the two aforesaid tracts of land, giving his obligation to convey the same by warranty deed as soon as payment was made according to agreement; that shortly thereafter, and on or about the said 6th day of April, the said Patrick Whalen bargained and sold the land mentioned in the complaint to the defendant, and thereupon the defendant immediately entered into possession of the same, and ever since then, in pursuance of said sale to the defendant, has continued in the actual and notorious possession of said tract of land, and made valuable improvements upon said lands to the cost and value of $400. That on the same day Patrick Whalen bargained and sold the other tract of land to one Jeremiah Whalen. That afterwards, and before the 7th of May, 1858 Patrick Whalen, being indebted to the plaintiff in about $1,700, as the defendant is informed, the payment of $900 of which, was before and then secured by mortgage on real estate of Patrick Whalen, sold and assigned all his interest in both the aforesaid tracts of land, under and by virtue of the said written obligation to the plaintiff, as a further security for the payment to the plaintiff of the aforesaid indebtedness to him by Patrick Whalen. That on the 7th of May, 1858, William Holcombe and wife conveyed the premises by deed to the plaintiff, in pursuance of his agreement with Patrick Whalen. That on the 29th of June, 1858, it was agreed by and between Daniel McClane and Patrick Whalen, Jeremiah Whalen, and Michael White, in consideration of the premises, that in part payment of the indebtedness of Patrick Whalen to the plaintiff, by Patrick Whalen on his part, that he would procure and deliver to the plaintiff the promissory note of Schulenburg, Boeckler & Co., for $1,500, payable 1st of June then next; and by the plaintiff on his part, that upon the delivery of the said promissory note to him, and in consideration thereof, he would immediately thereupon deed and convey the lands described in the complaint, to the defendant. The answer then alleges that said note was delivered, but the plaintiff had refused to convey. There was a reply denying some of the allegations of the answer, and among others the sale of the premises to defendant.

The cause was tried before a jury, and there was a verdict for plaintiff. A motion for a new trial was made and granted by the court, from which order the plaintiff appeals. Upon the trial of the cause, the plaintiff offered to prove a demand of possession of the premises of the defendant before suit brought, and refusal to deliver the same. The defendant objected to the evidence as immaterial and irrelevant, for the reason that no notice or demand was alleged in the complaint. The objection was overruled and defendant excepted.

We think the objection was well taken, and that the plaintiff had no right to offer the proof, without an allegation of the fact sought to be proved. If demand and refusal were necessary to be shown in order to the plaintiff's right to recover, then they should have been alleged, as they are material facts. But we think a demand and refusal was unnecessary in the present case, and...