Romkey v. Barnes

• Decision Date: 04 August 1942
• Docket Number: 6848.
• Citation: 5 N.W.2d 79,72 N.D. 127
• Parties: ROMKEY v. BARNES et al.
• Court: North Dakota Supreme Court

5 N.W.2d 79

72 N.D. 127

ROMKEY v. BARNES et al.

No. 6848.

Supreme Court of North Dakota

August 4, 1942

Syllabus by the Court.

1. In an action brought to recover damages for an alleged breach of covenants set forth in a deed, no recovery can be had when no breach of covenant is shown.

2. In an action tried to a jury it is error for the trial court to direct a verdict at the close of the testimony, when the adverse party objects thereto; but such error is held to be without prejudice when the record shows that a judgment in favor of the moving party must be entered notwithstanding the verdict, either upon a motion therefor in the trial court or upon appeal. Ellsworth v. Martindale-Hubbell Law Directory Inc., 69 N.D. 610, 289 N.W. 101, followed.

C. G. Dosland, of Moorhead, Minn., and J. E Hendrickson, of Fargo, for plaintiff-appellant.

Nilles Oehlert and Nilles, of Fargo, for defendants-respondents.

BURR, Chief Justice.

On April 27 1937, the defendants gave to the plaintiff a deed (Ex. A) to Lot 3, in Block 5, of the Original Townsite of Fargo, "and the Building located thereon, and including therewith an undivided One-Half interest in and to the East Wall of said Building, which said wall now serves as a party wall, and the land on which the West Half of said Wall now stands and all land lying West of said Wall, which is under or within said Building as it now stands and as now located."

The deed provides, further: "And the said Carroll O. Barnes and Clara Barnes, his wife, parties of the first part, for their heirs, executors and administrators, do covenant with the parties of the second part, their heirs and assigns, that they are well seized in fee of the land and premises aforesaid and have good right to sell and convey the same in manner and form aforesaid; that the same are free from all encumbrances, except installments of special assessments or assessments for special improvements which have not been certified to the County Auditor for collection, and the above bargained and granted lands and premises in the quiet and peaceable possession of said party of the second part his heirs and assigns, against all persons lawfully claiming or to claim the whole or any part thereof, the said parties of the first part will warrant and defend."

The lot is about 140 feet long from north to south. The building is a store building, faces north, is approximately 25 feet wide from east to west and about 100 feet long from north to south. The first story is 12 or 13 feet high. There is a second story, 12 feet high, perpendicular with the front of the building, of the full width of the building, and running back approximately 40 feet. The building is in a block fully built up, so far as the street line to the north is concerned. As to the front appearance the building appears to be the west half of a building 50 feet from east to west and hence the middle wall serves as a party wall for the building in issue and for the building directly east of it owned by one Peter Matson.

The plaintiff contends that at the time the deed was executed and delivered the defendants were not lawfully seized of an estate in fee simple, and that after the delivery of the deed Carroll O. Barnes, one of the defendants, and the First Federal Savings & Loan Association of Fargo brought an action in the district court of Cass County "to establish absolute ownership in the said Carroll O. Barnes and an undivided one-half interest in and to the East Wall of said building, which said wall now serves as a party wall etc." A copy of the decree is attached to and made a part of the complaint. The plaintiff further alleges that by the deed the defendants conveyed "an easement appurtenant to said real estate-of light and air immediately above said premises" and that this covenant had been breached; and that the covenant of seisin and the covenant to defend against all claims were breached at the time of the giving of the deed.

The answer admits the delivery of the deed (Ex. A.) but denies any breach of covenant. It alleges that there is still due the sum of $2,000 as part payment for the premises, which money was "kept and retained by the First Federal Savings & Loan Association of Fargo as provided in the said agreement" of sale made by the parties and which was to be paid to the plaintiffs when the association approved the title to the premises and further alleges the association has approved the title.

To the answer is attached a copy of an agreement, afterwards known as Ex. 2, entered into by Carroll O. Barnes, by the plaintiff herein, and by the First Federal Savings & Loan Association. This agreement sets forth that the plaintiff was procuring a loan from the association in the amount of $7,300 in order to finance the purchase of the premises involved and it was agreed between Carroll O. Barnes and the plaintiff on the one hand and the Savings & Loan Association, "that the First Federal Savings & Loan Association of Fargo, a corporation, may and shall retain $2000.00 of the $7300.00 agreed to be loaned, until such time as the title to the said premises should be cleared and made merchantable either by a proper party-wall agreement, or by successful litigation, in a manner meeting with the approval of the said First Federal Savings & Loan Association of Fargo."

In his reply the plaintiff alleges he signed the agreement, Ex. 2, "without consulting counsel, and that it was the belief and understanding of this plaintiff at the time of signing same, that a good and merchantable title satisfactory to the plaintiff herein of the premises described in said Agreement, *** should be conveyed to him." In accordance with the intent of this agreement the defendant Carroll O. Barnes, and the First Federal Savings & Loan Association as plaintiffs commenced an action in the district court of Cass County against Peter Matson (the owner of the building to the east), Charles B. Romkey the plaintiff herein, the Fargo National Bank, a corporation, and the American Security Company, a corporation, as defendants for the purpose of determining the right of the parties in and to the party wall. The plaintiff herein appeared as one of the defendants in that case-with his counsel, who represent him in this action-and on January 25, 1940, decree was entered (Ex. B.) wherein the court "Hereby ordered adjudged and decreed that Charles B. Romkey, as the present owner of the legal title to Lot 3 in Block 5 of the Original Townsite of the City of Fargo, and his successors in interest, are entitled to and have by virtue of this adjudication a permanent and perpetual easement in and right to use the brick wall now existing between Lots 2 and 3 in Block 5 of the Original Townsite of the City of Fargo, Cass County, North Dakota, as a party wall for the full length and heighth of said wall as it now exists, and that this easement is an easement running with the land but that the use of said wall as a party wall, by the present owner of the legal title to Lot 3, in Block 5, Original Townsite of the City of Fargo, and his successors in interest is limited to the use now made of said wall as of January 25th, 1940." No appeal was taken and so this judgment is final.

At the close of plaintiff's case the defendants moved the court to direct a verdict for the defendants upon the ground among others "that the plaintiff has wholly failed...