Wood v. Homelvig

• Decision Date: 31 December 1938
• Docket Number: 6534
• Citation: Wood v. Homelvig, 68 N.D. 735, 283 N.W. 278 (N.D. 1938)
• Court: North Dakota Supreme Court

283 N.W. 278

68 N.D. 735

HOWARD A. WOOD, Respondent, v. JOHN HOMELVIG, Appellant

No. 6534

Supreme Court of North Dakota

December 31, 1938

Appeal from District Court, Slope County; H. L. Berry, Judge.

Action by Howard A. Wood against John Homelvig for a judgment declaring plaintiff to be the true owner of certain premises. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Syllabus by the Court.

1. No particular language is necessary to create a tenancy. Any words that show an intention of the lessor to divest himself of the possession and confer it upon another, but in subordination of his own title, is sufficient.

2. Where defendant wrote letters to plaintiff recognizing him as owner of land and offered to pay taxes for the use thereof and plaintiff accepts such offer and the defendant goes into possession, the relation of landlord and tenant is created.

3. Where a tenant agreed to pay taxes for the use of land, but neglected to pay such taxes and permitted the land to be sold to the county for taxes and a tax deed to issue thereon, and immediately thereafter purchased said land from the county and took title in himself without giving notice to the landlord, such tenant is guilty of breach of faith; and where plaintiff, after discovery of the circumstances, seasonably brought action to have title vested in himself, the defendant cannot take advantage of his own wrongful acts and charge the plaintiff with laches.

4. A tenant is estopped to deny his landlord's title during the continuance of the relation of landlord and tenant, and the latter may not avail himself of acts of his own or any act hostile to the landlord's title as a ground for refusal to surrender his possession under the lease.

5. A tenant who is required by the terms of his lease to pay taxes on the property leased cannot acquire tax title as against his landlord.

6. The plaintiff having brought this action within six years after the wrongful act on the part of the defendant, such action is not barred by the statute of limitations.

Theodore Swendseid, for appellant.

The contract, note, memorandum required by the statute of frauds in order to make a contract need not be contained in one paper, but may be contained in a number of papers, documents or letters, provided that the substance of such contract can be ascertained from the writings themselves. Townsend v Kennedy, 6 S.D. 47, 60 N.W. 164.

A written memorandum, such as a receipt for an advance payment made by the vendee, which does not contain all of the material terms and conditions of the oral contract entered into by the parties, is invalid under the statute of frauds. Carpenter v. Murphy, 40 S.D. 280, 167 N.W. 175.

The memorandum must, as a general rule, contain the essentials of the contract so that they may be ascertained from the writing or writings without resort to oral evidence. 25 R.C.L. 645.

Where several writings are relied upon to constitute the required memorandum, the general rule applies that taken as a whole they must fully set out the agreement of the parties. 25 R.C.L. 680; Valker v. National Tea Co. 48 N.D. 982, 188 N.W. 306; Merchants State Bank v. Ruettell, 12 N.D. 519, 97 N.W. 853.

Theo. B. Torkelson, for respondent.

Where it is shown that the relation of landlord and tenant exists, tenant is estopped to deny his landlord's title. 16 R.C.L. 649-651; Mower v. Rasmussen, 34 N.D. 233, 158 N.W. 261; Minneapolis Iron Store v. Branum, 36 N.D. 355, 162 N.W. 543; Bredon v. Johnson, 56 N.D. 921, 219 N.W. 946; Lincoln Nat. L. Ins. Co. v. Simpson, 61 N.D. 611, 239 N.W. 245; Smith v. Specht, 58 N.J.Eq. 47, 42 A. 599.

A tenant cannot acquire a valid title as against the landlord by virtue of a tax sale, during the tenancy, for taxes which he, the tenant, had agreed to pay. Smith v. Newman, 53 L.R.A. 934, 939 and note; Burgett v. Taliaferro, 118 Ill. 510, 9 N.E. 334; St. Clair v. Craig, 77 Kan. 394, 94 P. 790; Hopkins v. Gilman, 47 Wis. 581, 3 N.W. 382.

That a tenant cannot acquire, as against his landlord, a title based on taxes which the tenant was under obligation to pay, applies as well where the obligation of the tenant to pay the taxes is imposed by statute as by express agreement. Landsburgh v. Donaldson, 108 Md. 689, 71 A. 88; Walker v. Harrison, 75 Miss. 665, 32 So. 392; Reily v. Lancaster, 39 Cal. 354.

A title acquired by a tenant, based upon taxes which the tenant was under obligation to pay, is held for the benefit of his landlord, and the purchase of such a title operates merely as payment of the tax and as a redemption from the tax sale. Bertram v. Cook, 32 Mich. 518; Lyebrook v. Hall, 73 Miss. 509, 19 So. 349; Shepardson v. Elmore, 19 Wis. 424; Pulford v. Whicher, 76 Wis. 555, 45 N.W. 418.

Laches in legal significance is not mere delay, but delay that works a disadvantage to another. 10 R.C.L. 396.

Lapse of time brought about by the conduct of the adverse party cannot avail him. 10 R.C.L. 404.

Sathre, J. Christianson, Ch. J., and Nuessle, Burr and Morris, JJ., concur.

OPINION

SATHRE

The complaint in this action alleges in substance that on the 9th of May, 1930 and prior thereto and during the year 1925, the plaintiff was the owner of the following described land, situated in the county of Slope, in the state of North Dakota: The north half of the southeast quarter and the north half of the southwest quarter of section 4, township 134, range 101; that in the year 1925 the plaintiff leased the land to the defendant and that as a consideration the defendant agreed to pay the taxes on the described premises for the year 1925 and subsequent years as rent for the use of said land, that the defendant failed and neglected to pay such taxes for the year 1925 or for any subsequent years until the year 1930; that by reason of the failure of the defendant to pay such taxes it was sold for taxes to Slope county at the annual tax sale held on the 14th day of December, 1926; that thereafter and on the 9th day of May, 1930, a tax deed was issued by the county auditor to the said Slope county, and that in June, 1930, the defendant purchased said land from Slope county, that he concealed all of these facts from the plaintiff and that the plaintiff did not become aware thereof until the month of March, 1933, and that the plaintiff until that time had relied upon defendant's agreement to pay the said taxes upon the said land for the use thereof, including the taxes for the year 1925.

That on the 19th of October, 1934, the defendant sold to the North Dakota Department of State Highways 6.24 acres of said land for highway purposes, and that the tracts that were sold contained valuable gravel deposits and that the defendant received therefor the sum of $ 800.00, and that in May, 1935, the defendant sold and conveyed to the county of Slope for a consideration of $ 58.20, 2.91 acres of said land for right-of-way purposes.

The complaint then demands that a judgment be entered in plaintiff's favor declaring him to be the true owner of said premises and that the defendant acquired and held the title thereto unlawfully and in violation of the rights of the plaintiff and requiring the plaintiff to account for all sums received by him under and by virtue of the sale of portions of said land for gravel and right-of-way purposes and for all taxes assessed and levied against the said premises which are unpaid and that the plaintiff recover from the defendant the amount thereof, together with interest and costs.

The answer denies that the defendant had any knowledge that the plaintiff owned the land prior to May, 1930; admits that he did not pay the 1925 taxes and that said land was sold for the taxes for the year 1925, that a tax deed was issued to Slope county and that the defendant acquired the land by purchase from Slope county in June, 1930; admits that defendant never paid any taxes levied on said land up to the time he purchased same on the 16th day of June, 1930, admits the sale of gravel and right-of-way rights, but alleges that he was the rightful owner and had the right to make such sales.

The answer further alleges that the plaintiff has been guilty of extreme laches in the commencement of this action; that there was no lease in writing, and therefore the alleged lease is invalid under the statute of frauds.

The answer further alleges that plaintiff's cause of action did not accrue within six years and was barred by the statute of limitations.

The district court made findings in favor of the plaintiff adjudging him to be the true owner of the land and that he was entitled to recover from the defendant the sums of $ 858.20 and the costs of the action as demanded in the complaint.

The defendant appealed on the grounds of insufficiency of the evidence and that the trial court erred in its findings of fact and conclusions of law in favor of the plaintiff in entering judgment thereon and the matter is here for trial de novo on all the issues.

The facts necessary to a determination of the issues are substantially as follows: The plaintiff is a resident of Burlington, Wisconsin. Sometime prior to 1925, he purchased an assignment of a mortgage on the land involved in this action. At the tax sale held in Slope county on December 12, 1922, said land was sold for the taxes for the year 1921 to one E. R. Moore, and on the 24th of December, 1925, the said Moore assigned the tax certificate to the plaintiff, Howard A. Wood, and on the 21st day of January, 1926, after proceedings duly had, a tax deed was issued to the plaintiff, Howard A. Wood, by the county auditor of Slope county.

The land was again sold for the taxes for the year 1925 at the tax sale held in Slope county in December, 1926, and Slope county became the...