Williams v. Corey

• Decision Date: 23 May 1911
• Citation: 21 N.D. 509,131 N.W. 457
• Parties: WILLIAMS v. COREY et al.
• Court: North Dakota Supreme Court

21 N.D. 509

131 N.W. 457

WILLIAMS

v.COREY et al.

Supreme Court of North Dakota.

April 26, 1911.

Rehearing Denied May 23, 1911.

Syllabus by the Court.

In October, 1905, plaintiff entered into an executory contract with C. for the sale to the latter of certain real property. Such contract is in the usual form containing stipulations against the assigning of such contract by C. and authorizing plaintiff to declare a forfeiture in case of any default by giving 30 days' notice of intention so to do. C. entered into actual occupancy of the property under the contract, and in July, 1906, he sold his interest in the land to G. for a valuable consideration, giving him a contract for a deed and putting him in possession thereunder, ever since which time G. has remained in actual occupancy of such land. C. defaulted in the payment of an installment due in October, 1907, and in February, 1908, plaintiff caused notice of intention to declare a forfeiture of the contract to be served on C. alone, although she had actual knowledge of G.'s purchase from C. and at no time objected thereto. Thereafter plaintiff prosecuted an action against C. alone to obtain a decree declaring such contract forfeited, in which action C. made default, and judgment was entered in plaintiff's favor for the relief prayed for. The case at bar was subsequently commenced against both C. and G., the object of which is to foreclose any interest asserted by either in such land. G. alone defends and offers to do equity by paying to plaintiff all sums which may be found due to her under her contract with C.

Held, for reasons stated in the opinion, that plaintiff is not entitled to recover, and that G. is entitled to the relief prayed for.

Sections 7494 and 7495, R. C. 1905, which prescribes the manner in which such contracts may be forfeited, provides for the service of written notice by the vendor upon “the vendee or purchaser, or his assigns.”

Held, construing said sections, that the word “assigns,” as thus used, includes within its meaning vendees of the purchaser when known to the vendor, and that, in order to forfeit such contract as against the rights of G., it was incumbent on plaintiff to cause notice to be served on him as required by said statute (citing Words and Phrases, vol. 1, tit. “Assigns”).

Appeal from District Court, McHenry County; Goss, Judge.

Action by Lizzie Williams against Burley E. Corey and another. Judgment for defendant Gehring, and plaintiff appeals. Affirmed.

R. Goer (Guy C. H. Corliss and L. D. Gooler, of counsel), for appellant. Christianson & Weber, for respondent.

FISK, J.

This is an action in equity and comes here for trial de novo. The facts are not seriously in dispute; but counsel disagree as to the nature of the action, plaintiff's counsel contending that it is an action to quiet plaintiff's title as against the two defendants, while defendants' counsel assert that the action is one to set aside a contract and to vacate certain foreclosure proceedings, including a sheriff's deed based thereon, and to adjudge that any title acquired by defendant Corey through such foreclosure proceedings and that any interest in the real property in controversy acquired by defendant Gehring through his purchase from Corey, be deemed to be held in trust for plaintiff. We fail to see how such question is very material to a correct disposition of the case. As before stated, the facts are not seriously in dispute, and the parties are entitled to such relief as, under the pleadings and the rules of equity, the facts demand.

Briefly stated, the complaint alleges:

(1) That at all times mentioned in the complaint plaintiff was, and still is, the owner in fee of the northeast quarter of section 19 in township 159 north of range 79 west. That on October 24, 1905, she entered into a contract with defendant Corey, by the terms of which she agreed to sell to Corey, and the latter agreed to purchase, such real property for a certain stipulated consideration. A portion of such consideration was the assumption by Corey of a $500 mortgage on the land and interest at 10 per cent. executed and delivered by plaintiff to Nathan M. Barnes.

(2) That Corey made default in the payment of the interest thereon, and that the said Barnes foreclosed the mortgage given to secure a portion of such interest, and at such foreclosure sale Barnes became the purchaser and subsequently assigned the sheriff's certificate to Corey, to whom a sheriff's deed was issued for said property and recorded on April 1, 1908.

(3) That in July, 1906, Corey, without the knowledge or consent of plaintiff, entered into a contract for the sale of said land to defendant Gehring, which contract was filed for record October 31, 1906.

(4) That any interest that defendant Corey may have assigned to Gehring is held in trust by the latter for the benefit of the plaintiff.

(5) That, Corey having made a default in the terms of his contract with plaintiff for the purchase of said real property, plaintiff caused notice of said default to be served on him, and thereafter commenced an action against said Corey for the cancellation of the contract, in which action said defendant made default, and that by reason of such facts plaintiff is entitled to a judgment canceling said contract of sale.

The prayer for judgment is “that defendant Corey be declared to have forfeited his interest in such contract, and that the same be annulled, and that he be declared trustee for this plaintiff in such title to said land as he may have acquired by said foreclosure, and for such further relief as to the court may seem just in the premises.”

An answer amounting to a general denial was interposed in behalf of both defendants, and subsequently defendant Gehring interposed a separate and amended answer, wherein he alleged, among other things, his purchase on July 26, 1906, of the premises from Corey under contract for a deed, under which contract he was immediately put in possession by Corey, who theretofore had actual possession thereof, ever since which time he (Gehring) has been in actual occupancy of such real property, and that he paid a large sum to said Corey as purchase price, all with plaintiff's implied knowledge and consent. And he offers to do equity by paying to plaintiff all sums due her under her said contract with Corey. The answer then alleges that the notice of the cancellation of the contract between plaintiff and Corey was not served upon him, nor was knowledge thereof or of the action against Corey to terminate such contract brought to his notice. Also, that Corey is insolvent and unable to respond to him in damages for breach of contract and that he will consequently suffer irreparable injury in case plaintiff is permitted to enforce such alleged forfeiture of the Corey contract as against him. Then follows allegations as to his good faith in dealing with Corey in the belief that he was the...