Van Dyke v. Doherty
| Decision Date | 20 November 1896 |
| Citation | 69 N.W. 200,6 N.D. 263 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ransom County; Lauder, J.
Action by John H. Van Dyke against Hugh Doherty and others.
From a judgment sustaining a demurrer to his answer, defendant Doherty appeals.
Affirmed.
Hugh Doherty, for appellant.
D. A Lindsey, for respondent.
Action to foreclose a mortgage on real estate. The defendant Doherty, who was the original mortgagor, answered. To his answer a general demurrer was interposed. On the argument of the demurrer, the defendant attacks the original complaint. The court held the complaint good, and sustained the demurrer to the answer, and from such ruling the defendant appeals. The original mortgage was dated March 6, 1884, and secured a note of same date for $ 2,100, due in five years, with interest at 7 per centum per annum, interest payable on January 1st of each year. The complaint alleges that on July 22, 1889, plaintiff, by an instrument in writing, extended the time of payment of said note for another five years from March, 1889, (the time of its maturity,) and in January 1894, in the same manner, granted another extension for one year from December 1, 1893.
It is urged that the complaint is bad because a portion of the time covered by the last extension was covered by the first to-wit, from December 1, 1893, to March 6, 1894. If there be any merit in this objection to the complaint, we confess our inability to grasp it. The fact was that the time of the maturity of the note was extended to December 1, 1894; and whether that be said to be one year from December 1, 1893, or 8 months and 24 days from March 6, 1894, could make no possible difference with defendant, so far, as we can discover. The complaint also shows that during the second five years the interest was six per centum per annum, and after that time 7 per centum is claimed.
It is urged that the complaint is defective in not alleging that defendant agreed to those extensions of time, and the reduction of the rate of interest. But these things were manifestly in defendant's favor, and his acceptance of them will be presumed; particularly when, as in this case, it conclusively appears that he took advantage of them.
The further objection to the complaint that it does not allege that no other proceedings have been had to collect the debt, as required by § 5869, Rev. Codes, proceeds upon a mistake of fact. The complaint does so allege in the exact words of the statute. The objections to the complaint were not well taken.
It is first urged that the demurrer to the answer is too general. Counsel makes his argument under § 5268, Rev. Codes, which relates only to demurrers to the complaint. His argument is of force under that section. But a demurrer to an answer is governed by § 5277, which declares that "a plaintiff may in all cases demur to an answer containing new matter when upon its face it does not constitute a counterclaim or defense." It is clear that the grounds for special demurrer enumerated in § 5268 cannot apply to an answer purely defensive in character, because such grounds--to-wit, want of jurisdiction, lack of legal capacity to sue, pendency of another action, defects of parties, and improper joinder of causes of action--cannot in their nature apply to such an answer. In this case plaintiff demurred to the answer, "on the ground that said answer is insufficient in law, upon the face thereof, to constitute a defense to the complaint herein." The new matter in this answer is purely defensive. There is no attempt to plead a counterclaim; and, while the demurrer is not identical in terms with the statute, it is identical in meaning, and clearly sufficient.
The answer is very voluminous. From it we learn that defendant originally made a written application to one Laughlin for a loan of $ 2,100, for a term of five years, at 10 per cent interest. Laughlin sent the application to one Hodgson, a loan agent at St. Paul, who accepted the same, and agreed to make the loan. A check for $ 2,100, payable to defendant, was sent to Laughlin. Defendant indorsed the check, and returned it to Laughlin, who used the proceeds in purchasing Northern Pacific preferred stock for defendant, and with which defendant purchased from the Northern Pacific Railroad Company the land upon which the mortgage was given. Laughlin retained $ 52.50 for his services, but we do not understand that any claim is made that this was not a proper charge against defendant. It appears from the answer that Hodgson completed the transaction, and it is admitted that the note and mortgage were given and extended as alleged, and that the same has not been paid except in the manner and to the extent as specially pleaded in the answer. It is alleged that when the papers were finally executed, instead of making a principal note of $ 2,100, with annual interest at ten per cent., and due in five years, such note drew only 7 per cent. annual interest, and two other notes were executed by defendant, both payable to one Day. These notes were for $ 150 and $ 165, respectively, making in the aggregate $ 315, or just 3 per cent. per annum on the principal note of $ 2,100 for five years. But these notes were payable, the first on January 1, 1885, and the...
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