Woodward v. McCollum

• Decision Date: 20 February 1907
• Citation: 111 N.W. 623,16 N.D. 42
• Parties: WOODWARD v. McCOLLUM.
• Court: North Dakota Supreme Court

16 N.D. 42

111 N.W. 623

WOODWARD

v.McCOLLUM.

Supreme Court of North Dakota.

Feb. 20, 1907.

Syllabus by the Court.

In an action to compel specific performance of a contract for the purchase of real property, the vendee defended upon the ground, among others, that the vendor could not transfer to him a title free from reasonable doubt in conformity to Rev. Code 1899, § 5032. Held, that such defense was not established.

In one of the deeds in plaintiff's chain of title the grantor signed his Christian name merely by the initials, but the body of the deed set forth his full Christian name, as well as surname. This was sufficient.

One deed in the chain of title described the grantees as “Chauncey C., Frank E., and Henry S. Woodworth.” This was sufficient to vest a two-thirds interest in Chauncey C. Woodworth and Frank E. Woodworth.

A deed from Henry S. Woodworth was signed “Harry” S. Woodworth, although in the body of the instrument the correct name was given. Held sufficient; the identity of the person being apparent.

The vendee was bound to point out the defects complained of in the vendor's title, and by pointing out specific defects he waived those, if any, not mentioned by him.

A mortgage appearing of record against the property is held, for reasons stated in the opinion, not to be a cloud upon plaintiff's title.

Plaintiff's delay in furnishing title to defendant was not under the circumstances detailed in the opinion sufficient to relieve defendant of his contract duty to accept and pay for the property. Time was not made the essence of the contract, and, further, such delay was waived by defendant.

A barn on the premises was destroyed by fire after the contract for deed was executed without the fault of either party, and it is held that this fact does not prevent specific performance of the contract as the loss must be borne by the vendee; he being the beneficial owner in equity of the property.

Appeal from District Court, Morton County; W. H. Winchester, Judge.

Action by Charles A. Woodward against Emmett S. McCollum. Judgment for plaintiff. Defendant appeals. Affirmed.

S. L. Nuchols (Thad L. Fuller, of counsel), for appellant. W. H. Stutsman, for respondent.

FISK, J.

This appeal is from a judgment rendered by the district court of Morton county awarding specific performance of a certain contract for the sale of real property. The judgment was in favor of the plaintiff, Charles A. Woodward, and the defendant, Emmett S. McCollum, appealed and asks a trial de novo of the entire case in this court.

The complaint alleges ownership of the property in question in plaintiff prior to and at the date of the contract for deed, September 9, 1902, which property consisted of 640 acres, being section 33, township 140, range 84, in Morton county, upon which were situated certain buildings, including a large barn. It also alleges that under the terms of the contract defendant, McCollum, agreed to purchase said property and pay therefor the sum of $10 per acre, $1,000 to be paid at the date of contract, and the balance on or before November 15th thereafter. The vendor agreed on the final payment of the purchase price to convey such land to defendant free from any incumbrance by a good and sufficient warranty deed, and he also agreed to furnish the defendant an abstract of title showing the same to be free from incumbrance. The contract was executed on the part of plaintiff as party of the first part by one John Bloodgood, who is referred to in the contract as “John Bloodgood, agent,” and the same is signed in the same manner, without disclosing his principal, and also by defendant. However, this fact is not deemed material as plaintiff afterwards fully ratified such contract, and defendant does not question the validity thereof. It is alleged that defendant went into possession of the land under such contract, but subsequently abandoned the same and repudiated all ownership therein. Then follow allegations as to plaintiff's tender to defendant on November 15th and at divers subsequent dates of a good and sufficient warranty deed conveying the land to him, together with abstracts of title showing such land to be free from incumbrance, and that he has at all times since been able, ready, and willing to perform his part of such contract, and a refusal on defendant's part to accept such deed or in any manner to perform such contract by paying the balance of such purchase price, and praying for a foreclosure of plaintiff's lien as vendor for the balance due, with interest. Defendant answered, denying that he went into possession of the land under said contract; also denying that plaintiff ever tendered a good and sufficient conveyance in accordance with the contract and that such land is free from incumbrance; and also denying that plaintiff tendered an abstract showing the title to be free from incumbrance. He alleges that between April 10, 1903, and July 1, 1903, the barn on said premises was destroyed by fire without his fault, and that same at the date of the contract was worth $1,200. Certain other matters are alleged in the answer which it is unnecessary to mention here. The parties do not disagree in any material respect as to the evidential facts, but they do disagree as to the ultimate facts deducible therefrom. Appellant does not deny the execution of the contract as alleged, but he insists that plaintiff has failed to show that he has a perfect title to the property so as to enable him to transfer to appellant such title free from reasonable doubt, and he invokes the statutory rule embodied in Rev. Code 1899, § 5032, that “an agreement for the sale of property cannot be specifically enforced in favor of the seller, who cannot give the buyer a title free from reasonable doubt.” This provision of our Code is a declaration of the common-law rule “that the vendor must be ready and able to convey a marketable title.” Swayne v. Lyon, 67 Pa. 436. In Vought v. Williams, 120 N. Y. 253, 24 N. E. 195, 8 L. R. A. 591, 17 Am. St. Rep. 634, the rule is stated thus: “A purchaser is not compelled to take property the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and, if he wishes to sell it, be reasonably sure that no flaw or doubt will arise to disturb its market value.” See, also, Easton v. Lockhart, 10 N. D. 181, 86 N. W. 697, and cases cited.

Appellant contends that plaintiff has failed to bring himself within this rule and hence cannot recover. What are the facts? Appellant concedes in his printed brief that on November 17, 1887, one Chauncey B. Woodworth had good title to all the land; that on April 13, 1888, he conveyed by warranty deed an undivided one-fourth interest in said land to one Samuel H. Woodworth, who gave a mortgage back on such interest to secure the payment of $3,000. Subsequently S. H. Woodworth executed to Chauncey B. Woodworth a deed purporting to convey to him a one-fourth interest therein. Thereafter Chauncey B. Woodworth, mentioned as party to the first part, purported to convey by deed the whole of such land to “Chauncey C.,” “Frank E.,” and “Henry S. Woodworth,” which deed is signed: “C. B. Woodworth.” Next is a deed executed by Frank E. Woodworth and “Harry” S. Woodworth, purporting to convey an undivided two-thirds interest in said land to Charles A. Woodward, the plaintiff. And, lastly, it having been proved that Chauncey C. Woodworth had died testate, it is conceded that deeds were executed to plaintiff by Sarah E. Woodworth as sole beneficiary under the last will and testament of Chauncey C. Woodworth, deceased, also a deed from her as executrix of such last will and testament; also a deed from one L. N. Cary, as administrator with the will annexed of said decedent. Appellant's objection to plaintiff's title appears to be based upon the fact that some of the deeds were signed merely by the initials of the grantor, instead of by his full Christian name. We think such objection without merit. It appears that in each case where the grantor signed simply by his initials instead of his full Christian name the body of the deed gives the full Christian name and surname; and not only this, but the attestation clause recites that the grantor described signs it, and the notary before whom it was acknowledged certifies that the persons signing are the grantors named in the deed. Rupert v. Penner, 35 Neb. 587, 53 N. W. 598, 17 L. R. A. 824, and Middleton v. Findla, 25 Cal. 76, are authorities directly in point, holding adversely to appellant's contention. See, also, numerous cases cited in the opinions in these cases holding to the same effect. The case of Vickery v. Burton, 6 N. D. 245, 69 N. W. 193, cited by appellant, is not in point. In that case it was held that there was no presumption of law that Pulaski J. Scovil and P. J. Scovil were one and the same person. That case differs from this,...