Tyler v. Shea
| Decision Date | 10 December 1894 |
| Parties | R. S. TYLER v. JAMES SHEA |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Lauder, J.
Action by R. S. Tyler against James Shea, administer of the estate of Edward A. Schram, and others; for the possession of real estate. From a conditional judgment in favor of defendants and from an order denying his application for execution thereon, plaintiff appeals. Appeal from judgment dismissed.
Order denying application reversed.
Appeal dismissed, and order reversed.
Newman Spalding & Phelps, for appellant.
The default of November 1st, 1892 and appellants action thereupon entitled appellant to possession of the premises under the terms of the contract. Iowa R. R. Land Co. v Mickel, 41 Ia. 402; Thurston v. Arnold, 43 Ia 43; 1 Smiths L. Cases, 95; Steele v. Biggs, 22 Ill. 643; Oliver v. Livingston, 62 Ill. 528; Wallace v. Maples, 23 P. 860; Kerns v. McKean, 4 P. 404; Wells v. Smith, 31 Am. Dec. 274; Waterman v. Banks, 144 U.S. 394; Drown v. Ingalls, 28 P. 759; Bish, Conts. 1347.
When time is the essential element of the contract, equity in the absence of fraud or waiver, will not interfere to save a forfeiture. Pomeroy's Eq. Jur. 455. When a place of payment is fixed by the agreement of parties, an offer of payment must be made at that place. LaFarge v. Pickert, 21 Am. Dec. 209; Bates v. Bates, 12 Am. Dec. 572; Friess v. Rider, 24 N.Y. 367; Franchot v. Leach, 5 Cow. 506; Post v. Springsted, 13 N.W. 370; McCauley v. Leavitt, 37 P. 164; Hoys v. Tuttle, 46 Am. Dec. 309; 17 Am. Law Reg. 745; Roberts v. Beatly, 21 Am. Dec. 410; Wyman v. Winslow, 26 Am. Dec. 542; Comp. Laws, § § 3461, 3462. The trial court seems to have held that plaintiff waived the place of tender by not objecting. Silence is no waiver of the place of performance. Friess v. Rider, 24 N.Y. 367.
The deposit of the money mentioned in the decree with John Shippam was unavailing. Such payment may be disregarded unless made pursuant to a rule or order of court or under a statutory provision. 1 Tidds Practice, 566; Dubois v. Dubois, 6 Cow. 494; Baker v. Hunt, 1 Wend. 103; Levan v. Sternfield, 25 At. Rep. 854; Davidson v. Lamphrey, 16 Minn. 405
W. E. Purcell, for respondents.
The appeal from the judgment herein should be dismissed. Appellant in attempting to enforce the judgment as entered by moving for execution upon it, adopted it as his own. He cannot seek to enforce and avoid the same judgment. Knapp v. Brown, 45 N.Y. 207; 4 Waits Pr. 215; Bennett v. Van Sickle, 18 N.Y. 480; Lamphrey v. Henk, 16 Minn. 405; Murphy v. Spaulding, 46 N.Y. 553. The tender was sufficient. The money, notes and mortgage were deposited in the People's Bank of Wahpeton, September 3rd, 1891. Plaintiff was notified by letter. The notes and mortgage were exhibited to him and he was told that the money was ready to be delivered to him. He made no objection either to the sufficiency of the notes or mortgage or the money or the time, place or manner of the offer to perform. He thereby waived all objections to the sufficiency of any of them. Sections 3462, 3469, 3474, Comp. Laws. Pinney v. Jorgenson, 27 Minn. 26; Sands v. Lyon, 18 Conn. 18; Union Mutual Life Ins. Co. v. Union Mills, 37 F. 286; Holmes v. Holmes, 12 Barb. 137; Breed v. Hurd, 6 Pick 357; Steele v. Biggs, 22 Ill. 643; Sargent v. Graham, 5 N.H. 440; 25 Am. and Eng. Enc. L. 903, note P.; Monahan v. Moore, 9 Mich. 9; Fosdyek v. Van Husan, 21 Mich. 570. Courts of equity are constituted for the purpose of working even handed justice even though in so doing they must in some cases over-ride injustice apparently legal. 36 Cent. L. Jr, 471; Duffy v. O'Donovan, 46 N.Y. 223; White v. Damon, 7 Ves. 30. Where time admits of compensation, courts of equity will not declare a forfeiture, but will relieve against it, and compensate the party demanding relief by way of interest or in a proper case by interest and damages. DeCamp v. Feay, 5 Serg. & R. 323; Gibbs v. Shampion, 5 Ohio 335; Button v. Schroyer, 5 Wis. 598; Seton v. Slade, 7 Ves. 265; Hennessy v. Woolworth, 128 U.S. 438.
We have two appeals before us in this case,--one is from the judgment, and the other from an order made after judgment. The plaintiff is appellant in both appeals. The action was instituted to recover possession of certain real estate. The defense was that the plaintiff had agreed to sell this land to Edward A. Schram, and that Schram had not made default in performing his contract, but had at all times been, and his heirs still were, willing and able to perform the same; and the prayer of the answer was that plaintiff might be decreed to convey the land according to the contract, on performance of the covenants and agreements on the part of Edward Schram by his heirs. The defendants are the administrator and the two heirs at law and next of kin of Edward Schram. The trial resulted in a judgment in favor of defendants, adjudging that they were entitled to a deed of the premises in question, upon making a certain payment, and on executing and delivering a note and a mortgage on the land to secure the balance of the purchase price to plaintiff, or upon paying the whole of such purchase price to plaintiff, provided either was done within 90 days after the date of the judgment. It was further adjudged that the plaintiff should in that case execute and deliver to defendants a warranty deed of the property; but that, in the event of the failure of defendants to comply with either one of these provisions within 90 days, the plaintiff should immediately thereafter become entitled to the exclusive possession of the land, and the defendants would thereafter be forever barred from any right thereto or interest therein. Subsequently to the rendering of this judgment, and after the period of 90 days has elapsed, the plaintiff, claiming that defendants had failed to comply with the provisions of the decree to be performed on their part, applied to the court, on notice, for an order that execution issue to put him in possession of the property. This application was denied, and from the order denying the same plaintiff has appealed. He has also appealed from the judgment, and asks for a new trial of the case in this court under the act of 1893, Ch. 82. Before arguing on the merits the appeal from the judgment, respondents moved to dismiss the appeal on the ground that appellant had availed himself of a right conferred on him by this judgment, and had thereby waived his right to appeal from the judgment.
The rule is well settled that one cannot accept or secure a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute, and cannot possibly be affected by the reversal of the judgment. See cases in note to Clark v. Ostrander, 13 Am. Dec. at p 550, and Smith v. Coleman, 77 Wis. 343, 46 N.W. 664; Murphy v. Spaulding, 46 N.Y. 556; Bennett v. Van Syckel, 18 N.Y. 481; Knapp v. Brown, 45 N.Y. 207; Laird v. Giffin, 84 Wis. 286, 54 N.W. 584; Construction Co. v. O'Neil, 24 Ore. 54, 32 P. 764; Flanders v. Town of Merrimac, 44 Wis. 621; Webster-Glover Lumber & Manufaciuring Co. v. St. Croix Co., 71 Wis. 317, 36 N.W. 864; Independent Dist. of Altoona v. District Tp. of Delaware, 44 Iowa 201; Corwin v. Shoup, 76 Ill. 246; Holt v. Rees, 46 Ill. 181; Bolen v. Cumby, 53 Ark. 514, 14 S.W. 926; Alexander v. Alexander, 104 N.Y. 643, 10 N.E. 37. We must be careful not to ignore an important qualification of the general doctrine. Where the reversal of the judgment cannot possibly affect the appellant's right to the benefit he has secured under the judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit. To illustrate this doctrine, we may instance the case of an action to recover $ 1,000, in which the only defense is a counterclaim for $ 500. It is obvious that $ 500 of plaintiff's claim is admitted. If the defendant succeeds in establishing his counterclaim, thus reducing plaintiff's recovery to $ 500, the plaintiff may collect the $ 500 awarded to him by the judgment, and still appeal from such judgment to secure a reversal, to the end that he may defeat the counterclaim and recover judgment for his entire demand on a new trial. The $ 500 he is entitled to absolutely. The reversal of the judgment and the second trial of the case cannot impair his right to it. Accepting this sum is therefore not inconsistent with his attempt to reverse the judgment, that he may on a new trial recover more. He can never recover less. It is the possibility that his appeal may lead to a result showing that he was not entitled to what he has received under the judgment appealed from that defeats his right to appeal. Where there is no such possibility, the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from. The following decisions enforce this doctrine: Reynes v. Dumont, 130 U.S. 354 at 354-394, 9 S.Ct. 486, 32 L.Ed. 934; Embry v. Palmer, 107 U.S. 3, 2 S.Ct. 25, 27 L.Ed. 346; Higbie v. Westlake. 14 N.Y. 281; Mellen v. Mellen, 137 N.Y. 606, 33 N.E. 545; Cocks v. Haviland, (Sup.) 7 N.Y.S. 870; Construction Co: v. O'Neil, 24 Ore. 54, 32 P. 764; Morriss v. Garland, 78 Va. 215; Manufacturing Co. v. Huiske, 69 Iowa 557, 29 N.W. 621; Dudman v. Earl, 49 Iowa 37. The case of U. S. v. Dashiel, 70 U.S. 688, 3 Wall. 688, 18 L.Ed. 268, belongs to this class. The reasoning of the opinion delivered in denying the motion to dismiss is unsatisfactory in its statement of the grounds on which the decision rests, but, when we turn to the opinion of the court on the merits (4 Wall. 182,) we discover that the defendant did not dispute his liability...
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