Ryan v. Bremseth
| Decision Date | 19 January 1922 |
| Citation | 186 N.W. 818,48 N.D. 710 |
| Court | North Dakota Supreme Court |
Equitable action in District Court, Ramsey County, Buttz, J to cancel a land contract.
Judgment amended and further period of redemption allowed.
Case remanded.
Flynn Traynor & Traynor and Adamson & Thompson, for appellant.
"Before the owner of land who has agreed to convey the same by a contract of sale, can cancel the contract for non-compliance therewith he must proceed promptly to declare his election to cancel on discovery of defaults and if he does not proceed promptly to do so, he will be deemed to have waived his right to insist that the vendee has lost his rights in equity on account of failure to comply with his contract." See Timmons v. Russell, 13 N.D. 487; also the following cases following same rule: Kicks v. State Bank of Lisbon, 12 N.D. 576; Smith v. Detroit, etc. (S.D.) 97 N.W. 17; Fergusson v. Talcott, 7 N.D. 183; Bozum v. Johnson, 8 N.D. 306; Pres. v. Lee, (S.D.) 86 N.W. 642.
J. F. T. O'Connor, C. F. Peterson, for respondent.
A variance is immaterial unless actually and prejudicially misleading, and shown to the satisfaction of the court to be so. Compiled Laws 1913, § 7476; Halloran v. Holmes, 13 N.D. 411, 416, 101 N.W. 310; Weber v. Lewis, 19 N.D. 473, 126 N.W. 105.
The function of the complaint is to inform defendant of the nature of plaintiff's demand so that he may not be mislead in the preparation of his defense. If the complaint does this in a general way, it is sufficient as against an attack by demurrer although inartificially drawn. 31 Cyc. 101 and cases cited; Sleeper v. Baker, 22 N.D. 386, 39 L.R.A. N.S. 664, 134 N.W. 716; West End Furniture Co. v. Norman, 44 N.D. 45, 176; N.W. 5; Gessner v. Horne, 22 N.D. 60, 132 N.W. 431.
A complaint challenged for the first time upon the trial by an objection to the introduction of new evidence thereunder will be liberally construed and sustained it if is reasonably possible to do so every presumption will be indulged in favor of the pleading. Morris v. Occident Elev. Co., 33 N.D. 477, 157 N.W. 486; Christoferson v. Wee, 24 N.D. 506, 130 N.W. 689; Rodeo v. Seaman, 33 S.D. 241, 45 N.W. 441; Neilson v Edwards, 33 S.D. 398, 148 N.W. 844.
Statement
The defendant has appealed from a decree canceling and foreclosing a contract for a deed. The evidence has not been settled nor certified. Upon the judgment roll and findings the conclusions of the law and the judgment of the trial court are questioned. The facts, as they appear therefrom, are: On July 23, 1918, plaintiff, through a contract for a deed, agreed to sell and to convey to the defendant approximately one section of farm lands in Ramsey county. The defendant agreed to pay therefor $ 35,392.50, as follows: The assumption of the Prosser mortgage, a lien upon the lands, for $ 7,840, together with interest thereon after November 22, 1918; the assignment of a contract for a deed upon a section of land in Montana subject to liens for $ 2,765, defendant to receive a credit of $ 7,235 therefor; the conveyance of 160 acres of land in Benson county, N.D., subject to liens for $ 1,900, defendant to receive credit of $ 1,800 therefor. The balance of the purchase price ($ 18,517.50, with the interest thereon at 6 per cent.) the defendant agreed to pay by the delivery of one-half of all grain to be sown and grown on the lands beginning with the crop for the year 1919, such grain to be delivered in designated towns or on board cars at defendant's cost and expense, and the proceeds thereof applied first in the payment of interest, and then of the principal. The defendant further agreed to pay all taxes and assessments upon the lands commencing with the year 1918. The contract provided that until the delivery of one-half of such grain the legal title to, and the absolute ownership of, all grain should be and remain in the plaintiff; further, that in case of default the defendant agreed to surrender possession of the premises and to forfeit all payments made to the plaintiff as liquidated damages and as compensation for the use of the farm during the time the defendant had possession.
The plaintiff instituted action December 10, 1920. The complaint alleges defaults of the defendant as follows: Failure to pay the Prosser mortgage, either principal or interest; taxes for 1919 and 1920; failure to pay the entire interest due on the balance of the purchase price or any part of the principal thereof; failure to deliver or account for the crop of 1920; failure to farm the premises in a good and husbandlike manner. It further alleges that the Prosser mortgage is about to be foreclosed; that the defendant occupies the premises and will permit such foreclosure; that the contract constitutes a cloud upon plaintiff's title; that the procedure at law for the cancellation thereof will require at least six months, and that the land should be prepared for the crop season of 1921; that accordingly plaintiff applies to a court of equity for relief to the end that the contract may be canceled and declared null and void and decreed to constitute no lien, and that plaintiff be awarded possession of premises on or before March 1, 1921.
The answer alleges, among other things, that the land was exceedingly foul when defendant took possession; that he has farmed it in a good and husbandlike manner, so as measurably to free the land of its foul condition; that he has repaired the buildings and dug a well on the land at an expense of approximately $ 1,500; that he has actually invested in such land, including his equities in the Montana and Benson county lands, $ 13,603.30; that the contract does not contain all of the agreements between the parties; that after the preparation of the contract plaintiff assured the defendant that no default would be claimed by reason of failure to make payment of principal or interest on the Prosser mortgage or taxes on the land; that, if the defendant was unable to make such payments, the plaintiff would take care of them and simply add the amount thereof to the contract. He further alleges waiver of the alleged defaults; that plaintiff accepted the payment of $ 907.25 from defendant on December 1, 1920, after the Prosser mortgage and interest became due; that plaintiff further permitted defendant to proceed with plowing and other farming operations in the fall of 1920; that defendant plowed and prepared for crop for the year of 1921, 325 acres of land, in addition seeded, in the fall of 1920, 90 acres in rye; further that, by reason of the payments made by the defendant to plaintiff, he was unable to pay the interest and principal of the Prosser mortgage and the taxes for 1919 and 1920; that the interest on the Prosser mortgage has been paid by the plaintiff and an extension of time secured by the plaintiff for the payment of such mortgage. It further alleges that the forfeiture clause in the contract is unjust; that the liquidated damages therein specified are void and in the nature of a penalty, since they in no manner furnish an accurate measure of damages which plaintiff might sustain by reason of defendant's defaults.
The action was tried May 9 to 11, 1921. The trial court found that the improvements made by defendant did not enhance the value of the land to any great extent, excepting the well to the extent of at least $ 600; in general, concerning farming methods, that defendant has acted in good faith and has gone to large expense in order to farm the land; that the price received for the 1920 grain is the price to be credited the defendant for the reason that he requested the grain to be held; that the defendant is in default concerning the 1919 and 1920 taxes, excepting as to the portion of the latter not yet delinquent, and in the payment of interest on the Prosser mortgage for 1919 and 1920 in the sum of $ 1,010, which was paid by plaintiff on December 1, 1920; that there was no understanding that plaintiff was to make payments of interest or principal on such mortgage when due or that no default would be claimed in the event of defendant's failure to pay the interest or the mortgage; that it was, however, a part of the agreement that plaintiff would do what was necessary to renew the Prosser mortgage if defendant was unable to pay the same; that plaintiff frequently requested defendant in 1920 to pay the interest on such mortgage and the taxes; that the Montana and Benson county properties, at their present market values, and considering the amount of money defendant has put into the same, are not sufficient to compensate the plaintiff for the use and occupancy, or for the rental value, of the land involved, or more than enough to pay him for the loss in damages actually sustained, if he be compelled to take back the land. The court further finds pursuant to a statement incorporated in the findings, that the total interest accrued on the purchase price of the land up to December 1, 1920, amounted to $ 2,456.94; that the defendant's debt, including 1919 and 1920 taxes and the amount paid by the plaintiff on the Prosser mortgage, has increased from $ 18,517.50 on October 1, 1918, to $ 20,483.74 on December 1, 1920. The court also finds that defendant is in default to the extent of 39 1/2 bushels of wheat out of the crop of 1920; further that, if the defendant is unable to make good the defaults on or before September 15, 1921, he may retain one-half of the crops raised upon the land in 1921, upon payment of all expenses, excepting one-half of the thresh bill, and delivery of plaintiff's remaining share in...
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