Pillsbury v. J.B. Streeter, Jr., Co.
| Decision Date | 14 February 1906 |
| Citation | 107 N.W. 40,15 N.D. 174 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks county; Fisk, J.
Action by John S. Pillsbury, Jr., and Charles S. Pillsbury, against the J. B. Streeter, Jr., Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Thomas H. Pugh, for appellant.
The statute relating to substituted service is mandatory and failure to comply with its terms confers no jurisdiction. Beach v. Beach, 6 Dak. 371, 43 N.W. 701; Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Bothell v Hoellwarth et al., 10 S.D. 491, 74 N.W. 231; Carlton v. Carlton, 85 N.Y. 313; McCracken v. Flanagan et al., 27 N.Y. 493, 28 N.E. 385; 24 Am. St. Rep. 481; Kennedy v. N.Y. Life Ins. Co., 32 Hun. 35; Greenbaum v. Dwyer, 66 How. Pr. 266; Simensen v Simensen, 100 N.W. 708, 13 N.D. 305.
The affidavit for publication does not show any diligence to find defendant within a reasonable time prior to the date of the order. Woods v. Pollard, 84 N.W. 214; McCarthy v. McCarthy, 16 Hun. 647; Collins v. Ryan, 32 Barb. 647; 19 Enc. Pl. & Pr. 622; Carnes et al. v Mitchell, 48 N.W. 941; Orr v. Currie, 35 N.Y.S 198; Am. Dig. 1896, Col. 4434; State v. Horine, 63 Mo.App. 1; Plummer v. Blair et al., 80 N.W. 139; Coughran v. German, 87 N.W. 527; Allen v. Richardson, 92 N.W. 1075.
Order must be based on a state of facts existing at or near the time of making it. N.Y. Baptist Union v. Atwell et al., 54 N.W. 760; Adams v. Hosmer, 56 N.W. 1051.
Affidavit must be filed before the order can be made. 17 Enc. Pl. & Pr. 56; Guinn v. Elliott, 98 N.W. 625.
Order must show that the facts necessary for an order were shown to the satisfaction of the court. McCracken v. Flanagan, supra; Davis v. Cook, 69 N.W. 18; Manning v. Keady, 25 N.W. 1.
Failure to state facts required by statute renders order of publication defective. 17 Enc. Pl. & Pr. 81; Lawrence v. State, 30 Ark. 719.
The judgment may be attacked collaterally. Murphy v. Lyons, 28 N.W. 328; McGavock v. Pollock, 4 N.W. 659; Boker v. Chapline, 12 Iowa 204; Palmer v. McMaster, 19 P. 585; McMinn v. Wheelan et al., 27 Cal. 312; Jordan et al. v. Giblin et al., 12 Cal. 100; Duxbury v. Dahle, 78 Minn. 427, 81 N.W. 198; O'Malley v. Fricke et al., 104 Wis. 280, 80 N.W. 436; Cody et al. v. Cody, 98 Wis. 445, 74 N.W. 217; Pendleton v. Weed, 17 N.Y. 75; Fowler v. Simpson, 79 Texas, 611; Turner v. Malone, 24 S.C. 405; Bigelow v. Stearns, 19 Johns, 41; Davis v. Cook, 9 S.D. 319, 69 N.W. 18; Coughran v. Markley, 87 N.W. 2; Cox v. Boyce, 152 Mo. 576, 75 Am. St. Rep. 483; Wilkinson v. Schoonmaker, 77 Tex. 615, 19 Am. St. Rep. 803; Oelberman v. Ide, 93 Wis. 669, 57 Am. St. Rep. 947; McGee v. Hayes, 127 Cal. 336, 78 Am. St. Dep. 57; Black on Judgment (2 Ed.) 278.
Proof of affidavit and order of publication must exist dehors the judgment. Palmer v. McMasters, supra; Galpin v. Page, 18 Wall. 350, 21 L.Ed. 959.
Interest is due when plaintiff is in position to demand the money, and does demand it. Morse v. Rice, 54 N.W. 308.
Guy C. H. Corliss, for respondent.
Equity will enforce a contract against the vendee as well as the vendor. Anderson et al. v. Wallace Lumber & Mfg.. Co., 70 P. 247; Warvelle on Vendors, 779-780.
The proper judgment to be rendered, is one requiring the vendee to pay within a certain time, and if he does not, direct a sale of the property to pay the amount due, and enter judgment for the deficiency. Edmison v. Zborowski, 68 N.W. 288; Gates v. Parmly, 66 N.W. 253, 257; Loveridge v. Shurtz, 70 N.W. 132; Clark v. Hall. 7 Paige, 382, 385; Corpus v. Teedt, 69 Ill. 205; Anderson v. Wallace, supra; Peake v. Young, 18 S.E. 237; Abbott v. Moldestad, 77 N.W. 227, 74 N.W. 293; Peck v. Zborowski, 82 N.W. 387; Strauss v. Beudheim, 66 N.Y.S. 247; Andrews v. Sullivan, 7 Ill. 327; Robinson et al. v. Appleton et al., 124 Ill. 276, 15 N.E. 761; Goddin v. Vaughn, 14 Gratt. 102; Adams v. Ash, 46 Hun. 105; Peake v. Young, 40 S.C. 41; Brace et al. v. Doble, 3 S.D. 110, 52 N.W. 586.
The affidavit was amply sufficient to give jurisdiction for the order of publication. Bank of Colfax v. Richardson et al., 54 P. 359; Salisburk v. Cooper, 69 N.Y.S. 258; Kennedy v. N.Y. L. Ins. & Trust Co., 101 N.Y. 488, 5 N.E. 774; Rue v. Quinn, 66 P. 216; Allen v. Richardson, 92 N.W. 1075; Woods v. Pollard, 84 N.W. 214; Coughran v. Marcley, 87 N.W. 2; Coughran v. Germain, 87 N.W. 527; Marks v. Ebner, 180 U.S. 314, 21 S.Ct. 376; McDonald v. Cooper, 32 F. 745; Crouter v. Crouter et al., 30 N.E. 726; Pike v. Kennedy et al., 15 P. 637.
There is nothing in that the affidavit was not filed until after the filing of the complaint. Allen v. Richardson, 92 N.W. 1075.
In equity, where the contract is silent on the subject of interest, the vendor will be regarded as trustee of the land for the benefit of the purchaser and liable to account for rents and profits; the vendee is trustee of the purchase money, and, if not paid, will be charged with interest thereon. Pomeroy on Specific Performance, section 428; Worrall v. Munn, 38 N.Y. 137; Bostwick v. Beach et al., 9 N.E. 41; Lynch v. Wright, 94 F. 703; 2 Story Eq. Jur., section 789; Fry, Spec. Per., section 889; Drake v. Barton, 18 Minn. 462.
Even when the vendor is in fault, the vendee in possession must pay interest, unless he sets aside the money and appropriates it for the vendor and so notifies him. Calcraft v. Roebuck, 1 Ves 221; Powell v. Martyn, 8 Ves. 146; Roberts v. Massey, 13 Ves. 561; Regents Canal Co. v. Ware, 23 Beav. 575; Winter v. Blades, 2 S. & S. 393; Dyson v. Hornby, 4 DeG. & Sm. 481; Pomeroy on Specific Performance, section 430.
Action to compel the vendee to specifically perform a contract for the sale of real estate. The district court entered a decree of specific performance in accordance with the relief demanded in the complaint. The defendant appeals from the judgment and requests a review of the entire case in this court, under section 5630, Rev. Codes 1899.
The facts are stipulated, and there is no question raised as to procedure nor as to the form of the decree. The complaint sets forth a contract in writing between the vendor and vendee, wherein the vendor agreed to convey to the vendee the land in question by warranty deed "and abstracts to each quarter section thereof to be furnished, showing perfect title in the grantors in said deed," and that upon furnishing such deed and abstract the vendee was to pay the balance of the purchase price. The complaint alleges a performance by the vendors of all the conditions of the contract and a tender of a warranty deed and abstract in accordance with the provisions of the contract. The only issue as to a compliance with the contract by the plaintiffs is whether a certain foreclosure of a mortgage upon the land in question was regular and valid. That foreclosure was by action, in which one Samuel L. Bean was the mortgagor. The defendant contends that the foreclosure was void for the reason that the affidavit on which the order of publication was based did not show that the plaintiff had exercised due diligence in ascertaining whether said Bean was a resident of the state at the time such affidavit was made, and could have been personally served in this state. The affidavit was made by plaintiff's attorney in that action, and is in the following language, so far as the point in question is concerned: "That the said defendants Samuel L. Bean, * * * cannot, after due diligence, be found within the state of North Dakota; that the diligence used to ascertain the whereabout of the said defendants is as follows, viz.: As to the said Samuel L. Bean, by inquiring of and from E. H Wilder, of the village of Arvilla, Grand Forks county, state of North Dakota, James H. Bosard, Grand Forks City, North Dakota, Ralph Whalen of 350 Temple Court, Minneapolis, Minnesota, who all unite in stating that the last known place of residence of the said Samuel L. Bean was General Delivery, City of New York; that is the place where he received his mail; that he always neglected and failed to give them his place of residence in said city of New York; that they have all received letters from the said Samuel L. Bean within the last year, in which he stated that his address was general delivery, New York City; that this deponent himself is in receipt of a letter from said Samuel L. Bean within the past year stating his address was general delivery, New York City, New York; * * * that none of the said defendants above named are residents of the said state of North Dakota; and that the place of residence of the said defendants above named is as follows, viz.: Samuel L. Bean, New York City, N.Y. * * *" The foreclosure was made in the year 1893, and under section 4900, Comp. Laws 1887, governing the procedure to obtain jurisdiction of absent defendants in foreclosures of mortgages on real estate. That section provides that: "Where the person on whom the service of the summons is to be made cannot after due diligence be found within the territory, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, * * * such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases: * * * (4) Where the subject of the action is real or personal property in this territory and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein." Upon the presentation of the affidavit, the district court made an order with the following recitals: "On reading and filing the foregoing affidavit, and the facts therein...
To continue reading
Request your trial