Whitney v. Akin

• Decision Date: 17 February 1910
• Citation: 19 N.D. 638,125 N.W. 470
• Parties: WHITNEY et al. v. AKIN et al.
• Court: North Dakota Supreme Court

19 N.D. 638

125 N.W. 470

WHITNEY et al.

v.AKIN et al.

Supreme Court of North Dakota.

Feb. 17, 1910.

Syllabus by the Court.

Upon an appeal, where, as in this case, the findings and decree of the court respond to the allegations of the complaint and the prayer for relief, but the evidence is not brought into the record by a properly authenticated statement of the case, it will be presumed that all material facts alleged in the complaint are supported by competent proof.

In a case such as this, where the sufficiency of the evidence to support the findings of the court cannot be considered because the appeal is based entirely upon the judgment roll proper, it will be presumed that the findings of the court are fully supported by competent evidence.

In an action by vendors to compel performance by the vendees to a contract for the purchase of real property of their agreement to pay each year upon the purchase price a sum equivalent to the value of one-half of the crop grown upon the land during that year, an allegation of the vendors as plaintiffs in their complaint, admitted by defendants' answer, that the entire balance of the purchase price in a stated sum is due and unpaid, will support a decree of the court requiring defendants within a reasonable time to pay that sum to the plaintiffs, and the plaintiffs thereupon to execute and deliver to defendants a conveyance of the land.

Where the court finds that during two years the crops grown upon land held under a contract of sale providing for payment of the purchase price by application each year of the proceeds of one-half the crop have not been in any part delivered by the vendees to the vendors, and that thereafter there was due upon the contract a certain sum, on an appeal based on the judgment roll alone, it will be presumed in support of the findings that the evidence showed the value of the crops for the two years in which they were not delivered was, at least, equivalent to the sum so found to be due on the contract.

Costs allowed under section 7179, Rev. Codes 1905, are in the discretion of the court; and, unless the facts show an abuse of the court's discretion, its rulings refusing certain costs will not be disturbed.

The costs or attorney's fee which may be allowed by the provisions of section 7176, Rev. Codes 1905, apply only to actions which are indisputably for the foreclosure of a mortgage upon real or personal property. The fact that the parties in equity stand in a relation that is practically that of mortgagor and mortgagee does not of itself require or authorize an allowance of costs under this section.

Additional Syllabus by Editorial Staff.

The allowance of costs, being entirely statutory, is strictly construed in accordance with the terms of the statute.

Appeal from District Court, Cass County; C. A. Pollock, Judge.

Action by Albert C. Whitney and others against Lewis W. Akin and others. Decree for defendants, and plaintiffs appeal. Affirmed.

Ball, Watson, Young & Lawrence and Reynolds & Roesser, for appellants. Engerud, Holt & Frame, for respondents.

ELLSWORTH, J.

Appellants, who were plaintiffs in the court below, allege as their cause of action that they are vendors in a contract for the purchase of a tract of land situated in Cass county; that the vendees who are named as defendants have made default in the terms and conditions of such contract, in that they have failed to turn over and deliver to plaintiffs one-half or any portion whatever of the crops which were in fact raised upon the land described in the contract during the year 1906; that, after giving defendants credit for any and all payments made upon said contract, there yet remains due and unpaid to the plaintiffs thereon the sum of $1,658.32, with interest thereon from November 1, 1905; and that by reason of the default alleged the plaintiffs have elected to declare said contract void. The contract on which the action is based is attached as an exhibit to plaintiffs' complaint, and from an examination of its terms it appears that payment of the purchase price is to be made by delivery of one-half the grain raised each year at some convenient point near the land to the plaintiffs, who shall thereupon dispose of the same, and apply the sum realized from such sale first upon any interest then due and afterward in reduction of the principal sum. No other provision than this is made for payment. Time is declared to be of the essence of the contract, and it is agreed that upon any failure of the defendants to perform any of the covenants and stipulations thereof the vendors shall have the right to declare a cancellation and forfeiture of the same after giving proper notice of their intention. The prayer for relief of plaintiffs and appellants is that the defendants “within a time to be fixed by the court comply with and perform the conditions of said contract, * * * and that, failing so to do, it be adjudged and decreed that said contract is forfeited and void”; that any claim, interest, or lien of the defendants be foreclosed and determined, and that plaintiffs be awarded immediate possession of the premises. By their answer the defendants admit the execution of the contract; that it was in full force, and that during the season of 1906 there was a crop of grain raised upon the land, no portion of which was delivered to the plaintiffs; that there yet remains due and unpaid to the plaintiffs on said contract the sum of $1,658.32, with interest thereon from November 1, 1905; that defendants have been at all times ready, able, and willing to pay the said sum, and bring the same into court and tender it to the plaintiffs. Defendants then allege a counterclaim, in which the contract set out in plaintiffs' complaint is pleaded, with the further allegation that they have paid all taxes upon the land since the year 1901, the date of the execution of the contract, and have in every respect complied with its terms; that there is now due upon the contract the sum of $1,658.32, with interest thereon from the 1st day of November, 1905, at 8 per cent., which sum defendants have been at all times ready, able, and willing to pay and now bring into court and offer to the plaintiffs; that the value of the premises has become greatly enhanced since the making of the contract, and that any failure or refusal on the part of plaintiffs to perform the same would cause great damage to the defendants. They therefore pray that the complaint of the plaintiffs be dismissed, and that plaintiffs be required to convey the premises in question to the defendants by a good and sufficient deed of warranty, and that upon delivery of the same, but not before, the sum admitted to be due upon the contract and deposited in court by defendants be paid to plaintiffs.

After issue formed a trial was had before the district court and a considerable amount of evidence introduced by both parties. After the trial the district court decided the case favorably to the defendants, and made findings, among others, to the effect that crops of grain were grown on the land in the years 1906 and 1907, and that defendants had failed in either of these years to deliver to plaintiffs any portion whatever of the same, and that there is due and unpaid to the plaintiffs on said contract the sum of $1,658.32, with interest thereon from November 1, 1905, at the rate of 8 per cent. per annum. It also found that this sum had...