Wells v. Geyer

• Decision Date: 08 August 1903
• Docket Number: 6731
• Citation: 96 N.W. 289,12 N.D. 316
• Court: North Dakota Supreme Court

96 N.W. 289

12 N.D. 316

FREDERICK D. WELLS AND MARY DREW WELLS v. JACOB GEYER AND MARIAN GEYER

No. 6731

Supreme Court of North Dakota

August 8, 1903

Appeal from District Court, Grand Forks county; C. J. Fisk, Judge.

Action by Frederick B. Wells and another against Jacob Geyer and another. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Guy C H. Corliss, for appellants.

The evidence is not of such conclusive character as is required to change an absolute deed into a mortgage. Lee v McGuin, 10 N.D. 160, 86 N.W. 714. The release of a vendor from further obligation to pay the purchase price under the contract, is a sufficient consideration for a release by the vendee of the obligation to convey the land. Kevello v. Taylor, 5 N.D. 76, 63 N.W. 889; Bishop on Contracts, Sec. 812-813; Clark on contracts, 192; Anson on Contracts, 338; Lawson on Contracts, 392; Rev. Codes 3931-3932. The obtaining of an undisputed right in place of a controverted right, constitutes ample consideration, even if it afterwards turns out that the right was entirely with one of the parties; that he had really given away something of value. 6 Am. & Eng. Enc. Law, 713; McGlynn v. Scott, 4 N.D. 18, 58 N.W. 460. The release given by Geyer to Wells being not an executory agreement, but an executed cancellation, no consideration is necessary to support it. It is only executory agreements in respect to which a consideration is necessary. This is apparent from the very nature of the case. 1 Parsons on Cont. 6; Sturgis v Crowningshield, 4 Wheaton 197, 4 L.Ed. 118; Bishop on Cont., Sec. 22; 1 Chitty on Contracts, 7; Clark on Cont., 2. The only way in which Geyer and wife could get rid of the release was by a proceeding to set it aside as void. Och v. Missouri, etc., R. R. Co., 31 S.W. 962; Vandervelden v. R. R. Co., 61 F. 54; George v Tait, 102 U.S. 564, 26 Law Ed. 232; Hormith v. Ry. Co., 129 Mo. 629; Papke v. Hammond Co., 61 N.E. 910. Equity will not relieve for a mistake of law. Benson v. Bunting, 127 Cal. 532, 59 P. 991; Kirschener v. New Home, etc., Co., 135 N.Y. 182, 31 N.E. 1104; Kleimann v. Gieselmann, 114 Mo. 437; Snell v. Atlantic Ins. Co., 98 U.S. 85, 25 L.Ed. 52; Robinson v. Smith, 11 Tex. 211, 2 Pom. Eq. Jur. 842, 846, 847.

Campbell & Radcliffe and Templeton & Rex, for respondents.

Upon offering to pay full amount of the debt due the plaintiff with interest, defendants were entitled to be relieved from forfeiture. Rev. Codes, Sec. 4970; Barnes v. Clement (S. D.), 81 N.W. 301; Frank v. Thomas, 25 P. 717. It is doubtful if a stipulation for retention of payments as liquidated damages can be enforced in this state. Rev. Codes, Sec. 3923, 3924; Barnes v. Clement, supra. The vendee is held to as strict compliance with the conditions of the contract by him to be performed as the vendor to his. 2 Warvelle on Vendors, 815; Case v. Walcott, 33 Ind. 5, 20, 22, Rev. Codes 3776. Accepting payments subsequent to mailing notice of intention to forfeit, was a waiver of the right to rely upon such attempted forfeiture. Pulman v. Cheney, 25 N.W. 495; White v. Atlas Lumber Co., 68 N.W. 359; Hutchins v. Munger, 41 N.Y. 155; O'Rourke v. Hadcock, 114 N.Y. 541, 22 N.E. 33; Stewart v. Cross, 66 Ala. 22; Allen v. Woodruff, 96 Ill. 11, 20; Warvelle on Vendors, Sec. 819; Ross v. Page, 11 N.D. 458, 92 N.W. 822. Tender of a deed is unnecessary when the vendee forfeits for an installment, and there are other payments not due at time of forfeiture; but if all the installments are then due, such attempted forfeiture is of no effect, unless a tender of deed has been made. Eddy v. Davis, 116 N.Y. 247, 22 N.E. 362; McCroskey v. Ladd, 31 P. 558; Underwood v. Tew, 34 P. 1100; Tronson v. Colby University, 9 N.D. 559, 84 N.W. 474; Black on Modern Law of Contract, Sec. 913. The attempted forfeiture was ineffectual, as plaintiffs did not offer to return defendants' notes until long after the latter had tendered the full amount due under the contract. Frank v. Thomas, 25 P. 717; Luaboda v. Cheney, 28 F. 500; Comstock v. Brosseay, 65 Ill. 39; Staley v. Murphy, 47 Ill. 24. Plaintiff could not forfeit the contract without returning the payment on the contract, as the latter contained no stipulation that in case of default all payments might be retained as liquidated damages. Staley v. Murphy, supra, Rev. Codes, Sec. 3934, Sub. 2; Barnes v. Clement, 81 N.W. 301, Rev. Codes 4970, 3923, 3924. The release was without legal effect, the same having been executed under a mutual mistake of the law, Rev. Codes, sections 3836, 3841, 3843, 3844, 3852, 3854; Arnett v. Smith, 11 N.D. 55, 88 N.W. 1037, 1042; Wheeler v. Smith, 9 How. 55, 13 L.Ed. 44; Gregory v. Clabrough Ex'rs, 62 P. 72; Benson v. Markoe, 37 Minn. 30, 33 N.W. 38; Lane v. Holmes, 55 Minn. 379, 57 N.W. 132. Under the facts of the case the order of the court permitting the service and filing of the second answer was not error. Martin v. Luger Furn. Co., 8 N.D. 220, 77 N.W. 1003; Bowers v. Thomas, 22 N.W. 710; Whipple v. Fowler, 60 N.W. 15; Neale v. Neale, 9 Wall. 1 U.S. 19 L.Ed. 590; Wiggins Ferry Co. v. O. & Miss. R. Co., 142 U.S. 396, 35 L.Ed. 1055; Barnes v. Heklo Ins. Co., 39 N.W. 122; Wells v. World's Dispensary, 120 N.Y. 630, 24 N.E. 276; Fowler v. Bowery Savings Bank, 113 N.Y. 450, 21 N.E. 172.

The release was without legal effect because it was not based upon an adequate consideration. So far as this proposition is concerned, it is immaterial whether the original transaction was a conditional sale or mortgage. If a conditional sale, defendants were equitable owners of the land and their equitable rights were similar to those of a mortgagor. Shelly v. Mikkelson, 5 N.D. 22, 63 N.W. 210; Nearing v. Cook, 6 N.D. 345, 70 N.W. Rep: 1044; Plummer v. Kelly, 7 N.D. 88, 73 N.W. 70; St. Paul & T. Lumber Co. v. Bolton, 32 P. 787; Church v. Smith; 39 Wis. 492; Northrup v. Trask, 39 Wis. 515; Superior, etc., Land Co. v. Nichols, 51 N.W. 878; Wells v. Francis, 4 P. 49; Connor v. Banks, 52 Am. Dec. 209; Moses Bros. v. Johnson, 16 Am. St. Rep. 58; Moor v. Anders, 60 Am. Dec. 551; Strickland v. Kirk, 51 Miss. 795; Miller v. Miller, 25 N.J.Eq. 354.

Deed, and a contemporaneous agreement to reconvey, on payment of debt due from grantor to grantee, at time of conveyance, is conclusively presumed to be a mortgage. Clark v. Landon, 90 Mich. 83, 51 N.W. 357; Watkins v. Williams, 31 S.E. 388; Kelly v. Leachman, 29 P. 849; Snow v. Pressey, 82 Me. 522, 20 A. 78; Jones on Mortgages, 5th Ed. 244; Gunn's Appeal, 10 A. 498; Weisham v. Hocker, 54 P. 464; Frey v. Campbell, 3 S.W. 368.

When the evidence leaves the mind of the court in doubt, the transaction should be held a mortgage. Jeffrey v. Robbins, 167 Ill. 357, 47 N.E. 725; Book v. Beasley, 40 S.W. 101; Niggeler v. Maurin, 34 Minn. 118, 24 N.W. 369. The latter case approved in O'Toole v. Omlie, 8 N.D. 444, 79 N.W. 849.

GLASPELL, J. YOUNG, C. J., and MORGAN, J., concur. COCHRANE, J., took no part in deciding the case; S. L. GLASPELL, Judge of the Fifth Judicial District, Sitting in his stead.

OPINION

GLASPELL, J.

The plaintiffs bring this action to recover the possession of certain lands, of which they claim to be owners. The defendants present, as an equitable defense, the contention that the deed by which such lands were conveyed by the defendants to the plaintiffs, and the contemporaneous agreement by which it was agreed that they were to be reconveyed to defendants, constitute merely a mortgage, which authorized them to retain possession and to redeem. The defendants have not waived their right to a jury trial upon the issue respecting plaintiffs' right to possession still the determination of the equitable issues in favor of the defendants has put an end to the litigation, and obviates the necessity of trying the legal issues involved. Arnett v. Smith (N.D.), 88 N.W. 1037. This action was tried to the court without a jury, and is brought to this court for trial de novo, under section 5630, Rev. Codes 1899. The defendant Geyer was in possession, and farmed the lands in question as a tenant during the farming season of 1899 and for a number of years prior thereto. During the fall of that year he had so far concluded negotiations with the then owner of the land for its purchase at an agreed price of $ 6,000 that a deed had been executed running to Geyer and wife, and deposited in Grand Forks, to be delivered upon payment of the purchase money. The land was then worth between $ 8,000 and $ 10,000, and at the time of the trial it was probably worth $ 12,000. Geyer did not succeed in securing the money necessary to pay the purchase price until he applied to one McWilliams, who represented the plaintiff Wells, and the latter agreed on or about December 13, 1899, to furnish Geyer the money necessary to pay his vendors, upon the condition that Geyer and wife would execute and deliver to him an absolute deed of the premises. Wells at the same time, and as part of the same transaction, agreed to make a separate written contract to reconvey to Geyer upon payment of $ 5,750, with 8 per cent interest, in certain future payments. Wells furnished $ 6,000 to pay the former owners, of which sum of money Geyer contributed and paid Wells $ 250. The former owners then conveyed to Geyer, and he conveyed to Wells, and the latter agreed to reconvey upon the payment of $ 5,750. Geyer failed in making payment at the time stipulated, and, time being stated as of the essence of the contract, Wells attempted to declare a forfeiture and to recover possession. After receiving notice declaring a forfeiture and to vacate the premises, Geyer and wife executed, on January 21, 1902, in consideration of the plaintiffs permitting them to occupy the said premises until April 1, 1902, an agreement in writing, wherein they admitted...