Ugland v. Farmers & Merchants' State Bank of Knox

• Court: North Dakota Supreme Court
• Writing for the Court: FISK, J.
• Citation: Ugland v. Farmers & Merchants' State Bank of Knox, 137 N.W. 572, 23 N.D. 536 (N.D. 1912)
• Decision Date: 19 June 1912

137 N.W. 572

23 N.D. 536

UGLAND v. FARMERS & MERCHANTS' STATE BANK OF KNOX et al

Supreme Court of North Dakota

June 19, 1912

Rehearing denied September 14, 1912.

Appeal by defendants from a judgment of the District Court for Pierce County; A. G. Burr, J., in plaintiff's favor in an action brought to enforce specific performance of a contract for the sale of certain property and to quiet title.

Affirmed.

F. T Cuthbert, for appellant.

There was a sufficient performance to take the case out of the statute of frauds. See McCullon v. Mackrell, 13 S.D 202, 83 N.W. 255; Lothrop v. Marble, 12 S.D. 511, 76 Am. St. Rep. 626, 81 N.W. 886; Note to Frame v. Frame, 5 L.R.A. 325.

The contract being executed, it is as valid as though the statute of frauds did not exist. Lindersmith v. Schwiso, 17 Minn. 26, Gil. 10; Evans v. Winona Lumber Co. 30 Minn. 515, 16 N.W. 404; Morrill v. Mackman, 24 Mich 279, 9 Am. Rep. 124; Laughran v. Smith, 75 N.Y. 205; Larkin v. Avery, 23 Conn. 304; Sovereign v. Ortmann, 47 Mich. 181, 10 N.W. 191; Bishop, Contr. § 634; Peoples v. Evens, 8 N.D. 121, 77 N.W. 93; 1 Dembitz, Land Titles, page 481 and note; Bates v. Babcock, 95 Cal. 479, 16 L.R.A. 751; Pico v. Cuyas, 47 Cal. 174; Lowman v. Sheets, 124 Ind. 416, 7 L.R.A. 787, 24 N.E. 351.

A stranger or third person cannot claim the benefit of the statute of frauds. Kelly v. Kendall, 118 Ill. 650, 9 N.E. 261; Browne, Stat. Fr. § 287; Donellan v. Read, 3 Barn. & Ad. 899, 6 Eng. Rul. Cas. 298; Smith v. Neale, 2 C. B. N. S. 67, 26 L. J. C. P. N. S. 143, 3 Jur. N. S. 516, 5 Week. Rep. 563; Holbrook v. Armstrong, 10 Me. 31; Bell v. Hewitt, 24 Ind. 280; Wolke v. Fleming, 103 Ind. 105, 53 Am. Rep. 495, 2 N.E. 325; St. Louis, K. & N.W. R. Co. v. Clark, 121 Mo. 169, 26 L.R.A. 761, 25 S.W. 192, 906; 1 Dembitz, Land Titles, p. 467; Ryan v. Tomlinson, 39 Cal. 639; Gulf, C. & S. F. R. Co. v. Settegast, 79 Tex. 256, 15 S.W. 228; Richards v. Cunningham, 10 Neb. 417, 6 N.W. 475; Bishop, Contr. 2d ed. § 1239; Bailey v. Irwin, 72 Ala. 505; Miller v. Munroe, 59 A.D. 623, 69 N.Y.S. 861; Skinner v. McDouall, 2 De G. & Sm. 265, 12 Jur. 741, 17 L. J. Ch. N. S. 347; Chicago Dock Co. v. Kinzie, 49 Ill. 289, 293; Bohannon v. Pace, 6 Dana, 194; Cooper v. Hornsby, 71 Ala. 65; Sanborn v. Murphy, 86 Tex. 437, 25 S.W. 610; Grisham v. Lutric. 76 Miss. 444, 24 So. 169.

L. R. Nostdal and Christianson & Weber for respondent.

Payment of the consideration alone, upon a contract for an interest in lands, is not sufficient part performance to take it out of the statute of frauds. Cooley v. Lobdell, 153 N.Y. 596, 47 N.E. 783; Aird v. Alexander, 72 Miss. 358, 18 So. 478; Wallace v. Long, 105 Ind. 522, 55 Am. Rep. 222, 5 N.E. 666; Merchants' State Bank v. Ruettell, 12 N.D. 519, 97 N.W. 853; Jourdain v. Fox, 90 Wis. 99, 62 N.W. 936; Bruley v. Garvin, 105 Wis. 625, 48 L.R.A. 839, 81 N.W. 1038; Ellis v. Cary, 74 Wis. 176, 4 L.R.A 55, 17 Am. St. Rep. 125, 42 N.W. 252; Scheuer v. Cochem, 126 Wis. 209, 4 L.R.A.(N.S.) 427, 105 N.W. 573; Dicken v. McKinley, 163 Ill. 318, 54 Am. St. Rep. 471, 45 N.E. 134; Smith v. Phillips, 69 N.H. 470, 43 A. 183; Nye v. Taggart, 40 Vt. 295; Osgood v. Shea, 86 Neb. 729, 42 L.R.A.(N.S.) 648, 126 N.W. 310; Ross v. Cook, 71 Kan. 117, 80 P. 38; Roberts v. Templeton, 48 Ore. 65, 3 L.R.A.(N.S.) 790, 80 P. 481; Kelsey v. McDonald, 76 Mich. 188, 42 N.W. 1103; Bartlett v. Bartlett, 103 Mich. 293, 61 N.W. 500; Usher v. Flood, Ky. , 17 S.W. 132; Riley v. Haworth, 30 Ind.App. 377, 64 N.E. 928; Barickman v. Kuykendall, 6 Blackf. 21; Sailors v. Gambril, 1 Ind. 88; Jackson ex dem. Smith v. Pierce, 2 Johns. 221; Bringhurst v. Texas Co. 39 Tex. Civ. App. 500, 87 S.W. 893; Senior v. Anderson, 115 Cal. 496, 47 P. 454; Gorham v. Dodge, 122 Ill. 528, 14 N.E. 44; Clark v. Clark, 122 Ill. 388, 13 N.E. 553; Osborn v. Phelps, 19 Conn. 63, 48 Am. Dec. 133; Lewis v. North, 62 Neb. 552, 87 N.W. 312.

A vendee or grantee succeeds to the right of their grantors or vendors to the extent that they may plead the statute of frauds as against parties pretending to claim through the same vendors or grantors. Messmore v. Cunningham, 78 Mich. 623, 44 N.W. 145; Dailey v. Kinsler, 35 Neb. 835, 53 N.W. 973; Hansen v. Berthelsen, 19 Neb. 433, 27 N.W. 423; Masterson v. Little, 75 Tex. 682, 13 S.W. 154; Sanborn v. Murphy, 86 Tex. 437, 25 S.W. 610; Shelton v. Thompson, 96 Mo.App. 327, 70 S.W. 256; Petty v. Petty, 4 B. Mon. 215, 39 Am. Dec. 501; First Nat. Bank v. Blair State Bank, 80 Neb. 400, 127 Am. St. Rep. 752, 114 N.W. 409, 16 Ann. Cas. 411.

Defendant waived any objections which it might have urged, and the tender was perfectly good. Walsh v. St. Louis Exposition & Music Hall Asso. 101 Mo. 534, 14 S.W. 722; Hidden v. German Sav. & L. Soc. 48 Wash. 384, 93 P. 668; Mitchell v. Vermont Copper Min. Co. 67 N.Y. 280; Ricketts v. Buckstaff, 64 Neb. 851, 90 N.W. 915; Kollitz v. Equitable Mut. F. Ins. Co. 92 Minn. 234, 99 N.W. 892; Shay v. Callanan, 124 Iowa 370, 100 N.W. 55; People ex rel. Mulford v. Mayhew, 26 Cal. 655; Fargusson v. Talcott, 7 N.D. 183, 73 N.W. 207; Boyum v. Johnson, 8 N.D. 306, 79 N.W. 149; Mitchell v. Vermont Copper Min. Co. 67 N.Y. 280.

OPINION

FISK, J.

Action for specific performance of a contract for the sale and purchase of a certain real property, and also to quiet title. Plaintiff recovered judgment in the district court, and defendants have appealed therefrom to this court, and a trial de novo is demanded.

The statement of facts in respondent's brief is substantially correct, and we adopt such statement without change except in a few immaterial respects. It is as follows:

On July 8, 1904, William M. Noble and I. Wesley Noble purchased the premises involved from the then owner for the sum of $ 3,000, and received a contract for deed therefor, based upon the so-called crop payment plan. This contract was executed by H. Herbert Steele, apparently in an individual capacity, but afterwards when it was discovered that a mistake had been made, and that the title to this land was in security company, a corporation of which Mr. Steele was the treasurer and managing officer, and for which corporation he had full power to make contracts and execute conveyances, the security company duly ratified such contract of sale, and executed a supplementary contract accepting the terms of the former contract. Under this contract, the two Nobles went into possession of the premises, and cropped same, and made certain payments on the contract. About April 13, 1908, Wm. M. Noble assigned his interest in the contract and premises to his brother, I. Wesley Noble.

During the winter of 1909, the exact date being in dispute, the defendant Hanson had a conversation with the Nobles relative to the purchase of their interest in the land in question, and a verbal agreement was reached whereby I. Wesley Noble agreed to sell, for the consideration of $ 3,000, $ 1 of which was then paid by Hanson. As to the exact arrangement made between them the testimony is largely in conflict, with the single exception that the total price or valuation of the premises was fixed at $ 3,000. Noble claims that he was to assign his contract to Hanson upon the payment to him by Hanson of a sum afterwards to be ascertained to be equal to the difference between $ 3,000 and the amount due to the security company, including taxes against the premises. Hanson, on the other hand, absolutely denies this, and claims that he did not in any manner agree to buy Noble's equity in the premises, or agree to take an assignment of his contract, but that the agreement was that he was to pay Noble $ 3,000 for a warranty deed and a good title to the premises. The contract was merely executory, and it was an open question with both parties as to whether the deal would ever be finally consummated. No agreement was made whereby Hanson was permitted to enter into possession of the premises, and the conversation which took place between them at the time when Hanson obtained the key for the house on the premise shows that even at that time it was still an open question as to whether the deal would ever be consummated. The testimony shows that, so far as obtaining possession of the premises is concerned, defendant Hanson did so without authority from Noble, and under an agreement which recognized that he was not entitled to possession.

One of Noble's reasons for desiring to sell the premises was to obtain money for the purpose of making a redemption of some land which had been foreclosed. Noble claims that it was essential that he get this money during April, 1909, in order to use the money for the purpose desired. It is conceded that Noble, a number of times, called upon Minkler and Hanson, and requested payment of the moneys which would be due him if the deal were consummated, but that they failed and neglected to either pay or tender, or even offer to pay him. On or about April 26, 1909, Noble went to see Hanson, and insisted that either the money would have to be paid to him, or else the deal would have to be declared off; and that Hanson made no serious objection thereto, but on the contrary virtually consented to such an arrangement.

Thereafter, and on the same day, Noble told Hanson that the deal was off, and tendered him the $ 1 which he, Hanson, had paid to him at the time of their first conversation. It is not contended that up to this time Hanson had done any work upon the premises.

Thereafter on April 30, 1909, Noble sold his interest in the premises and assigned his contract to the plaintiff in this action. This assignment was in writing, and prior thereto the written consent of the vendor in such contract had been obtained. At that time the plaintiff paid to Noble for such assignment the sum of $ 260 in cash, and agreed to assume the balance...