Wadge v. Kittleson

• Decision Date: 30 November 1903
• Citation: 97 N.W. 856,12 N.D. 452
• Court: North Dakota Supreme Court

97 N.W. 856

12 N.D. 452

THOMAS WADGE v. ANNOND KITTLESON

Supreme Court of North Dakota

November 30, 1903

Appeal from District Court, Walsh county; Kneeshaw, J.

Action by Thomas Wadge against Annond Kittleson. Judgment for plaintiff. Defendant appeals.

Modified.

Plaintiff recovered costs in district court and in this court. Judgment affirmed.

Spencer & Sinkler, for appellant.

The assignment of the contract of the land in question by the defendant to McEwen & Dougherty was for security only; for the indebtedness due from him to them, and the subsequent assignment of said contract by McEwen & Dougherty to Wadge simply transferred the security interest of McEwen & Dougherty to Wadge and created no other estate in him; and the defendant having never transferred his interest in said contract or the land described therein to Wadge in writing nor authorized any agent in writing to do so, the taking of the deed by Wadge from the vendor in the contract, in his own name, makes him only a mortgagee, and the deed so received is only a mortgage for securing the indebtedness due Wadge from Kittleson. O'Toole v. Omlie et al., 79 N.W. 849; O'Dell v. Montrams, 68 N.Y. 499; Yankton B. & L. Ass'n. v. Dowling, 74 N.W. 436; Feltz v Peterson, 28 So. 829; Murry v. Walker, 31 N.Y. Ct. Ap. 401; Brayton v. Jones, 5 Wis. 117; Niggeler v. Maurin, 24 N.W. 369.

H. A. Libby, for respondent.

A parol agreement for the sale of lands which has been executed between the parties, is not within the statute of frauds. Baxter v. Gay, 14 Conn. 119; McKenna v. Bolger, 49 Hun. 259, 22 N.E. 1132; Martin v. McCord, 30 Am. Dec. 342; Pope v. Chaffee, 14 Rich. Eq. 69; Larsen v. Johnson, 47 N.W. 615; Lucus v. Mitchell, 10 Ky. 244; Pooyle v. Sheehy, 57 N.Y. 637; Andrews v. Jones, 10 Ala. 400; Slatter v. Meak, 35 Ala. 528; LeFevre v. LeFevre, 8 Am. Dec. 696; Whitson v. Smith, 15 Tex. 33; Robb v. San Antonia St. R. R. Co., 18 S.W. 707; Reedy v. Smith, 42 Cal. 245; Doherty v. Doe, 33 P. 165; Swenzey v. Moore, 74 Am. Dec. 134; Wheeler v. Frankinfall, 78 Ill. 124; Anderson School Tp. v. Milroy Lodge of Masons, 29 N.E. 411; Pomeroy v. Winship, 7 Am. Dec. 91; Stone v. Dennison, 23 Am. Dec. 654; Nutting v. McCutcheon, 5 Minn. 382; Bird v. Jacobus, 84 N.W. 1062; Fideler v. Norton, 30 N.W. 128; DeHierapolis v. Wright, 60 N.Y. St. 417; Cameron v. Austin, 27 N.W. 622.

Where a person who holds a contract of purchase of land stands by and sees another purchase the same land from his vendor, and fails to object, he will be estopped from claiming that the second purchaser bought for his benefit. Baehr v. Wolf, 59 Ill. 470.

In this case Kittleson not only stood by when Wadge bought the land, and secured a transfer of the contract from McEwen & Dougherty, but he bargained with Wadge to do this and the whole transaction was upon his instance and request, and under his personal supervision and direction, and every act done by Wadge was in direct pursuance of the agreement with Kittleson. After the contract had been fully performed, Kittleson worked the land as Wadge's tenant for two years without objection. See also Mellor v. Valentine, 3 Colo. 255; Doan v. Mayzey, 33 Ill. 227; Martin v. Me. Cen. R. R. Co., 83 Me. 105, 21 A. 740; Stores v. Barker, 10 Am. Dec. 316.

Kittleson has no interest in the crop. He was a trespasser on the land, and did his work in putting the crop in with full knowledge of all the facts, after he had been forbidden to do so, and against the express commands of the owner. Crops sown on land by a stranger to the title without authority or consent of the owner, belong to the owner of the soil. Freeman v. McLenon, 26 Kan. 151; Simpkins v. Rodgers, 15 Ill. 397; Crotty v. Collins, 13 Ill. 567; Thomas v. Moody, 11 Me. 139; Lindsay v. Winona R. R. Co., 43 Am. Rep. 228; Brothers v. Hurdle, 10 N.C. 490; Murphy v. Sioux City R. R. Co., 55 Iowa 473, 8 N.W. 320; Straubble v. Trustees, 78 Ky. 481.

OPINION

MORGAN, J.

The controversy in this case arises over the ownership and the right to the use and possession of the southwest quarter of section 24, township 157, range 58, in Walsh county, N.D. The plaintiff claims in his complaint to be the absolute owner thereof, and asks to have the title quieted in himself, and defendant's interference with his possession permanently enjoined. Defendant claims, in his answer, to be the equitable owner of said lands, and claims that he has been in the continuous possession thereof since 1897; that he purchased said land from the Security Improvement Company, of Grand Forks, in 1897, and received from said company a contract of sale, under which he was to secure full title to said land upon payment to it of $ 850 from the crops raised on the land; that in January, 1898, he was indebted to McEwen & Dougherty, of Park River, and assigned said contract of sale to said firm as security for the payment of said indebtedness; that defendant was indebted to plaintiff and his partner in November, 1899, in the sum of about $ 300, and plaintiff about said time requested that defendant authorize McEwen & Dougherty to assign said contract of sale to plaintiff, and that plaintiff would thereupon pay said McEwen & Dougherty's debt, and hold said contract as security for the payment of plaintiff's debt, as well as the amount paid to McEwen & Dougherty to secure the assignment of the contract to plaintiff; that plaintiff paid McEwen & Dougherty what was their due, and received from them the assignment of the contract of sale; that plaintiff thereafter wrongfully presented said assignment to the Security Improvement Company, at Grand Forks, N.D., paid the amount due on said contract, and demanded that a deed be executed and delivered to him, by said company; that said company issued such deed to him, which was duly recorded in the office of the register of deeds of Walsh county; that plaintiff procured said deed without authority or right to do so, and without defendant's authority or knowledge. The relief demanded by defendant is for an accounting; that plaintiff be adjudged to have received such deed in trust for defendant, and as security for the amounts owed by defendant to plaintiff; that, "upon payment to plaintiff by defendant of the amount found due to plaintiff, that plaintiff be compelled to deed the land in dispute in this action, by a special warranty deed, * * * to this defendant." The trial resulted in findings and a decree in favor of the plaintiff, so far as the ownership of the land was concerned. Defendant appeals, and requests a review of the entire case, under section 5630, Rev. Codes 1899.

Unless an accounting must be made between the parties, the issues are: (1) Was the transaction of November 1, 1899, between plaintiff and defendant, whereby the contract of sale was assigned by McEwen & Dougherty to plaintiff, a security, or an absolute assignment? (2) If not a security assignment, has the defendant parted with, conveyed, or abandoned his interest in the contract of sale?

Upon the first question, it is not difficult to reach a conclusion, based on evidence that preponderates in plaintiff's favor, and is thoroughly convincing, that defendant's version of the affair is not the true one. The facts out of which the differences between the parties arose are as follows: On the 3d day of June, 1897, the defendant entered into a contract for the purchase of the land in suit from the Grand Forks Security Improvement Company, on the crop-payment plan of purchase. Possession of the premises was given him by said contract, and he went into what is deemed in law actual possession thereof, and in 1898 broke forty-three acres, and cropped this and the eighty acres of land already broken thereon when he purchased it. He also cultivated this land and cropped it in 1899. There were no buildings on the land. In January, 1898, the defendant was in debt, and owed the firm of McEwen & Dougherty $ 741. He owned the plaintiff and his partner about $ 300. He also owed the Security Improvement Company $ 752.25, the unpaid balance on the purchase price of the land; being $ 850. He owed other debts, also. At this time defendant assigned to McEwen & Dougherty the land contract received from the Security Improvement Company, by an assignment absolute in form indorsed on said contract. At the same time McEwen & Dougherty gave defendant a memorandum acknowledging that such assignment was for security purposes only. Later, and in the spring or summer of 1899, the plaintiff met the defendant to settle a seed-lien transaction, and to get a lien on the crop; and, during a conversation then had, defendant proposed that the plaintiff buy the land in question from him. The plaintiff, after they had talked over the price, said that he would see about it later. The defendant also requested him later in the summer to buy it, and again in the fall. At the conversation had in the fall about selling the farm, the plaintiff made him an offer to buy the farm. He offered to buy it on the following terms: Defendant was to turn over to plaintiff 200 bushels of wheat; plaintiff was to pay the McEwen & Dougherty indebtedness; the indebtedness due plaintiff and Wadge & Johnson was to be satisfied; plaintiff was to pay the Security Improvement Company the unpaid purchase money; and defendant was to transfer to plaintiff all his right, title, and interest in the farm. Defendant accepted the offer. Plaintiff and defendant then immediately went into the office of Wadge & Johnson, and their claim was found to be about $ 300. They then went to the office of McEwen & Dougherty to find out the amount of their claim. Upon arriving there, the defendant said: "McEwen, I sold my farm to Mr. Wadge, and he will take up your indebtedness, and you will transfer the contract to him." Then they...