Moore v. Booker

• Court: United States State Supreme Court of North Dakota
• Citation: 62 N.W. 607,4 N.D. 543
• Parties: MOORE v. BOOKER et al.
• Decision Date: 11 September 1894

4 N.D. 543

62 N.W. 607

MOORE

v.BOOKER et al.

Supreme Court of North Dakota.

Sept. 11, 1894.

Syllabus by the Court.

1. In the absence of any showing of prejudice, it is not error to refuse to suppress a deposition, taken in another state on notice, because the notice did not locate the office of the notary before whom such deposition was to be taken by street and number.

2. It is not error to refuse to suppress a deposition for the reason that it does not appear in the certificate of the officer taking the deposition or elsewhere that the officer was not a relative of either party, or otherwise interested in the action.Such fact, if it exist, must be made to appear affirmatively. Our statute does not require the certificate to speak upon that point.

3. Where a grantee of real property assumes the payment of an incumbrance thereon, such contract of assumption is an original undertaking on his part, distinct from the contract of purchase. It may be contained in the conveyance, or it may be by separate writing, or it may rest entirely in parol.

4. The original complaint alleged a purchase by R., for and as the agent of B., of certain realty, and that B., through said agent, promised and agreed to pay the incumbrances thereon. In an action to foreclose such incumbrances both B. and R. were made parties defendant, and a personal judgment for deficiency asked against them. All of plaintiff's testimony supported the original complaint, but the testimony of defendant R. disclosed that the purchase was for the joint benefit of B. and R. The court found such joint purchase, and ordered the complaint amended accordingly. Held no abuse of discretion.

5. In construing an ambiguous finding of fact made by the trial court, it is proper for the appellate court to consider all the findings, in order to determine what was intended; and it is the duty of the appellate court, when it can be done without violence to the language used, to so construe a finding as to support a conclusion of law that follows.

6. When a party, purporting to act as the agent of another, makes certain promises and agreements on behalf of his principal, if such party was at the time acting in his own interest, or in a matter in which he and his alleged principal were jointly interested, then such person will be personally bound upon such promises and agreements.

On Rehearing.

When, upon appeal from the district court, the original papers are sent to the supreme court, and when the case has been fully argued and submitted in this court upon such record, the trial court has thereafter no authority or power to amend or correct such record, unless, upon application to this court, the record is remanded for such purposes.

Appeal from district court, Pembina county; Charles F. Templeton, Judge.

Action by Louisiana E. Moore against Lewis E. Booker, George W. Ryan, and others to foreclose mortgages. Plaintiff had judgment, and defendants Booker and Ryan appeal. Reversed.

W. J. Kneeshaw, for appellants. E. W. Conmy (John M. Cochrane, of counsel), for respondent.

BARTHOLOMEW, C. J.

This was an action brought to foreclose two real-estate mortgages upon the same property, and the prayer asked for a personal judgment for deficiency. Louisiana E. Moore, the respondent, was the original mortgagee. The defendant Barbara J. Webb, who is the daughter of respondent, was the mortgagor, and the appellants, Booker and Ryan, were charged as subsequent grantees of Webb. It was against them that the personal judgment was asked. They resisted on the ground that they never assumed the payment of the mortgages. The trial court found the issues against them. All the evidence for plaintiff, not documentary, was in form of depositions, all of which were taken at Spokane Falls, in the state of Washington, upon one notice, before one notary, and on the same day. The first assignment of error relates to the refusal of the court to exclude these depositions. At the proper time, and in the proper manner, Booker and Ryan moved to suppress the depositions, for the following reasons: “(1) That the notice does not sufficiently state the place or office at which such depositions will be taken; (2) that it does not appear, by the certificate of the notary or elsewhere, in said deposition, that the notary taking said deposition was or is not a relative of either party, or otherwise interested in the above action; (3) that it does not appear in said deposition, by certificate or otherwise, that the person who wrote said deposition was a disinterested person.” Other reasons are urged in argument, but no others were assigned in the motion, and obviously no others can be now considered.

The notice of taking the depositions stated they would be taken “by and before J. B. Wood, Esq., a notary public of the state of Washington, at his office in the city of Spokane Falls, in the county of Spokane, and state of Washington.” The point urged is that the notice does not specify the street or number where the office of the notary is located. But there is nothing before the court to show that the streets of Spokane Falls are named, or the buildings thereon numbered. We are not charged with judicial knowledge of the condition of all the cities of other states, or the number of inhabitants therein. Britton v. Berry, 20 Neb. 325, 30 N. W. 254. Were it otherwise, until these defendants make some showing that they desired to attend or be represented at the taking of the depositions, or make some effort to attend, or were in some manner prejudiced by the indefiniteness of the notice, we should hesitate to exclude depositions upon such a technicality.

Nor is there merit in the second objection. Section 5287 of the Compiled Laws provides: “The officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding.” The officer's certificate in this case is silent upon that point, but we do not think this raises a presumption that the statute has been violated. The presumption is the other way. If the statute has been violated, that fact must be made to affirmatively appear. Turner v. Hardin, 80 Iowa, 691, 45 N. W. 758;Gregg v. Mallett (N. C.) 15 S. E. 936;Colgin v. Redman, 20 Ala. 650. Our statute does not require the certificate to speak upon that point.

The third objection arises from a misapprehension. The certificate states: “That the foregoing deposition of each of said witnesses was reduced to writing by Grant J. Bowan, a suitable and proper person for that purpose, in my presence, and in the presence of each of said witnesses.” That is a full compliance with the statute which requires the officer to state in his certificate “that the deposition was reduced to writing by some proper person, naming him.” The depositions were properly admitted.

The learned counsel for the appellants contends that the court erred in refusing to exclude from the depositions, upon his application, all parol evidence tending to prove that appellants assumed and promised to pay the mortgages existing on the real estate at the time of the sale. Counsel's argument is based, as we understand it, upon the fact that the deed by which the property was transferred contains no assumption upon the part of the grantee of the existing mortgages, the only reference thereto being in the covenant of warranty, wherein the grantor covenants that the land is free of all incumbrances except the two mortgages here involved. Counsel cites numerous authorities illustrative of the very elementary propositions that a written contract cannot be varied, contradicted, or added to by parol; and that, when parties have deliberately put their contract in writing, such writing, in the absence of mistake or fraud, is the sole depository of their agreement, and that no evidence can be received of prior or contemporaneous conversations or understandings. The difficulty lies in the fact that these principles have no application in this case. It was entirely proper that the existing mortgages should be excepted from the covenant of warranty. But the fact does not show that the grantee did or did not assume the payment of such mortgages. The contract by which a grantee assumes the payment of existing incumbrances is separate and distinct from the conveyance. It may be, and often is, embodied in the deed; but it may be by separate writing, or it may rest entirely in parel. In either case, where, as is claimed in this instance, the amount of the incumbrance is deducted from the purchase price, and the balance only paid to the grantor, the contract to assume the incumbrance is an original promise on the part of the grantee to pay his own debt in a particular manner; and the holder of the incumbrance can take advantage of this promise in a court of equity, and obtain a personal judgment for deficiency against the grantee. Wright v. Briggs, 99 Ind. 563; Merriman v. Moore, 90 Pa. St. 78; Lamb v. Tucker, 42 Iowa, 118;Winans v. Wilkie, 41 Mich. 264, 1 N. W. 1049; Bolles v. Beach, 22 N. J. Law, 680; Wilson v. King, 23 N. J. Eq. 150;Johnson v. Harder, 45 Iowa, 677;Ross v. Kennison, 38 Iowa, 396;Thompson v. Bertram, 14 Iowa, 476;Vrooman v. Turner, 69 N. Y. 280;Douglass v. Wells, 18 Hun, 88;Crowell v. Hospital of St. Barnabas, 27 N. J. Eq. 650;Conover v. Brown, 29 N. J. Eq. 510. And in many courts this promise to assume and pay an incumbrance may be enforced in actions at law. See Jones, Mortg. § 758, and case cited in notes.

The appellants ask to eliminate from the depositions all evidence by which it was sought to establish that appellant Ryan was the agent of appellant Booker, based upon the statements of Ryan, made at the time of the transaction. This was refused, and the refusal was clearly error, as an agent's authority, or the agency itself, cannot be established by the declarations of the alleged agent. But in the final disposition made of the case this error became...