Williams v. Clark
| Decision Date | 04 April 1919 |
| Docket Number | 1915 |
| Citation | 172 N.W. 825,42 N.D. 107 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Burleigh County, A. T. Cole, J.
Appeal from the district court of Burleigh county, A. T. Cole Judge, sitting in the place of Judge Nuessle.
Affirmed.
Judgment affirmed, with statutory costs.
Sullivan & Sullivan, for appellant.
"Judgment in action of claim and delivery must be supported by a verdict of the jury in the absence of a proper waiver." Hart v. Wyndmere, 21 N.D. 383, 131 N.W. 271, Ann Cas. 1913D, 169; Gorth v. Jarvis, 15 N.D. 509.
"Plaintiff cannot deprive defendant of a jury trial of legal issues by advancing fictitious claims for equitable relief." Davison v. Associates Jersey Co. 71 N.Y. 333; Wheelock v. Lee, 74 N.Y. 504; People v. A. J. S R. Co. 57 N.Y. 333; Yager v. Exchange Nat. Bank, 72 N.W. 211.
"It is error for the court to substitute itself for a jury without consent or waiver of parties." Yankton F. Ins. Co. v. R. Co. 7 S.D. 428, 64 N.W. 514; 24 Cyc. 110, see cases cited therein. Burleigh v. Hecht (S.D.) 117 N.W. 366.
"The plaintiff having introduced in evidence a negotiable note, properly assigned to her, establishes prima facie her case and the ownership of such documents." Brynjoldson v. Osthus, 12 N.D. 42, 96 N.W. 261.
"Testimony tending to show that the deceased was present at time the defendant received the papers should have been admitted." St. John v. Lofland, 5 N.D. 140, 64 N.W. 930; Cowen v. Lagburn, 116 N.C. 526; Pritchard v. Pritchard, 69 Wis. 373, 34 N.W. 506; (Iowa) 110 N.W. 435; Umstead v. Bowling, 64 S.E. 368; Smith v. Smith, 89 S.E. 1032; Borum v. Bell (Ala.) 31 So. 454; Yoder v. Englebert (Iowa) 136 N.W. 523; Seybold v. Bank, 5 N.D. 460.
Benton Baker and Fisk & Murphy, for respondent.
"An amendment that materially changes the issues should not be allowed at time of trial." Beauchamp v. Insurance Co. 38 N.D. 499, 165 N.W. 545.
"The note being payable to the deceased, and not having been indorsed by him, the law presumes that same is the property of the estate; and possession of the note by another is insufficient to overcome this presumption." 8 C. J. 386--1006, 1007; 3 R. C. L. p. 981, and cases cited; see note in 50 L.R.A.(N.S.) 582--591; Vastine v. Wilding, 45 Mo. 89, 100 Am. Dec. 347; Escamella v. Pingree (Utah) 141 P. 103; Kiefer v. Tolbert (Minn.) 151 N.W. 529; Sheperd v. Hanson, 9 N.D. 249; Swanby v. Payne (Wis.) 137 N.W. 763; Baker v. Warner (S.D.) 92 N.W. 383; Shea v. Doyle, 65 Ill.App. 471.
"At most, defendant can claim only a mere equitable title to the note, the same not having been indorsed by the payee." 7 Cyc. 812--818.
"In this case there was no delivery prior to payee's death, therefore no transfer of title." 7 Cyc. 814, and cases cited, 3 R. C. L. p. 967, § 175.
"It is elementary and well settled that a legal consideration is essential to a valid transfer; there was no consideration for alleged purchase by defendant." 7 Cyc. 815.
See 12 R. C. L. 932--937, 941, 957, and cases cited; Comp. Laws, § 5539; Knight v. Tripp (Cal.) 54 P. 267; Van Eman v. Stanchfield, 10 Minn. 255; Cavitt v. Tharp, 30 Mo.App. 131; Dorn v. Parson, 56 Mo. 601; Merlin v. Manning, 2 Tex. 351; Ross v. Smith, 19 Tex. 171; 4 Am. & Eng. Enc. Law, 2d ed. 319; Dan. Neg. Inst. § 812; Rand, Com. Paper, § 792; Escamella v. Pingree (Utah) 141 P. 103, citing numerous authorities; see also Comp. Laws, § 3541. As to what constitutes a gift causa mortis, see 12 R. C. L. 959, 962, and cases cited; Zeller v. Jordan (Cal.) 38 P. 640; Luther v. Hunter, 7 N.D. 544, 75 N.W. 916; Basket v. Hassell, 107 U.S. 602, 27 L.Ed. 500.
"Gifts causa mortis are not favored, as they are against the policy of the law." Hatch v. Atkinson, 56 Me. 324, 96 Am. Dec. 464; Harris v. Clark, 51 Am. Dec. 352, and note, 3 N.Y. 93; Gano v. Fisk, 43 Ohio St. 462, 54 Am. Rep. 819, 3 N.E. 532; Hall v. Howard, Rice, L. (S. C.) 310, 33 Am. Dec. 115; note in 85 Am. Dec. 638; Gilmore v. Lee, 237 Ill. 402, 127 Am. St. Rep. 330, 86 N.E. 568; Hawn v. Stoler, 208 Pa. 610, 65 L.R.A. 813, 57 A. 1115; Willis v. Secor, 31 Mich. 185, 18 Am. Rep. 178.
"Defendant was not competent to testify as to transaction with the deceased." Comp. Laws 1913, § 7871; Regans v. Jones, 14 N.D. 591, 105 N.W. 613; Cardiff v. Marquis, 17 N.D. 110, 114 N.W. 1088; Larson v. Larson, 19 N.D. 160, 23 L.R.A.(N.S.) 849, 121 N.W. 202. See especially Wagenen v. Bonnot, 74 N.J.Eq. 843, 18 L.R.A.(N.S.) 400, 70 A. 143; Smith v. Burnet, 35 N.J.Eq. 322; Woolverton v. Van Syckel, 57 N.J.L. 393, 31 A. 603; Provost v. Robinson, 58 N.J.L. 222, 33 A. 304; Dickerson v. Payne, 66 N.J.L. 35, 48 A. 528. See also valuable note to the case of Wall v. Wall, 45 L.R.A.(N.S.) 583; 20 Cyc. 1232; Schultz v. Becker (Wis.) 110 N.W. 213; Beebe v. Coffee (Cal.) 94 P. 766.
"Until the gift is legally perfect and complete, a locus poenitentioe remains, and the owner may make any other disposition of the property that he or she may think proper." Taylor v. Henry, 48 Md. 557, 30 Am. Rep. 486; Gorman v. Gorman, 87 Md. 338; Pennington v. Gittings, 2 Gill & J. 208; Murray v. Cannon, 41 Md. 476; Dougherty v. Moore, 71 Md. 249; Bunn v. Markham, 7 Taunt. 224; Keepers v. Fidelity Title & D. Co. 56 N.J.L. 393, 23 L.R.A. 184.
This action is brought by Erastus A. Williams as executor of the estate of Dan Williams, deceased, against one Betsa Clark, to recover possession of a certain promissory note secured by a real estate mortgage upon the following land, to wit: The west one half of the S.E. 1/4 and the S.W. 1/4 of section 15 and the north one half of the N.E. 1/4 and east one half of the N.W. 1/4 of section 22, township 142 north of range 81, containing 358 acres more or less according to the United States government survey thereof, owned by Erastus A. Williams, the executor, who is a surviving brother of Dan Williams, and to recover a certain assignment of said mortgage. The further, and in fact real, purpose of the action is to determine title and adverse claims to the note, mortgage, and assignment as between Erastus A. Williams and Betsa Clark, who had obtained possession of the above-described evidence of indebtedness. Erastus A. Williams made, executed, and delivered the note and mortgage in question to his brother, Daniel, at or about the time or date of the same. About the 26th day of October, 1915, in the city of Bismarck, North Dakota, Daniel Williams executed an assignment of such mortgage in blank. The acknowledgment of the assignment was before Benton Baker, Esq., a notary public, and one of the attorneys of record in this action for Erastus A. Williams. Daniel Williams died on or about January 29, 1917, in Bismarck, North Dakota, at the home of his brother, Erastus A. Williams. As one of the exhibits in the case there appears the last will and testament of Daniel Williams. By the terms of the will, Daniel devised and bequeathed to Erastus A. Williams, his brother, all his estate whether the same be real or personal property. This will was dated the 20th day of June, 1910, and appears to be properly signed and witnessed. After the execution of the note, mortgage, and assignment, the same came into the possession of Betsa Clark. The assignment of the mortgage executed in blank had become, in form, completed by the insertion therein of the name of "Mrs. Betsa Clark" as assignee, and this gives rise to one of the main questions in the case, namely; Was the name of "Mrs. Betsa Clark" inserted in the assignment by Daniel Williams in his own handwriting, or was it inserted therein by Betsa Clark in her own handwriting? We will discuss this matter more fully later in the opinion. Defendant claims that it was error not to have submitted the questions involved in this suit to a jury on the ground that the complaint stated on its face an action in claim and delivery. The appellant devotes a large portion of his brief to the discussion of her right to trial by jury. The record discloses no demand of the right of trial by jury, and we must assume there was none. The defendant proceeded to try the case to the court as purely a court case, and from its beginning to its close, it was tried as such under the provisions of the Newman Act. From the judgment against defendant in the trial court defendant prosecutes an appeal to this court and demands a trial de novo. In addition to this, the prayer of the complaint almost entirely demands equitable relief, and at least a portion of the prayer of the defendant demands equitable relief; and though the prayer does not wholly determine whether the action is one in equity only, it must be taken into consideration to determine if, upon the facts and pleadings of the entire case, the relief to be granted is such that it is rendered in equity rather than in law. The action was not alone for the purpose of determining who was entitled to the possession of the property in question, but was in fact to determine the title and adverse claims respecting it. Assuming, however, that the action is one in which there were legal questions which could be submitted to a jury and also equitable ones which should be decided by the court, the defendant made no demand to have the legal questions, if any, first submitted to and determined by the jury, and at least tacitly consented that all questions of law...
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