Birdzell, J.
This is an appeal from a judgment of the district court of Hettinger county, entered in an action, to quiet title. By the judgment the defendant is permitted to redeem the north half of section 32, township 136 N., range 94 W., from a foreclosure, in pursuance of which a sheriff’s deed has been issued, upon paying to the plaintiff the amount due on the liens and encumbrances. The specification is for a trial de novo. The facts are as follows: In June, 1913, the defendant gave two mortgages covering the above-described land and also the southeast quarter of the southwest quarter of section 30. The first mortgage was to the Fargo Loan Agency for $2,600, and the other was to Jacob Graeber for $664. The latter mortgage was also subject to three other mortgages aggregating $1,320. Max Hendrick, plaintiff and appellant herein, acted as agent for the defendant in negotiating the loans made in June, 1913. The Graeber mortgage was foreclosed in May, 1914, and prior to the foreclosure sale the plaintiff Hendrick had purchased of the defendant for the sum of $1,000 the southeast quarter of the southwest quarter of section 30. Apparently for the purpose of protecting the interest so purchased, the plaintiff appeared at the foreclosure sale and bid in the north half of section 32 for the full amount due on the mortgage. A short while before the expiration of the period of redemption, the defendant Jackson and his wife packed up their effects and left for Iowa, where they remained for the period of about six months. They left their live .stock and some other personal property behind, however. The plaintiff obtained a sheriff’s deed to the premises at the expiration of the period of redemption, and when the defendant returned in the fall of 1915 he went to the plaintiff to obtain an order on the tenant, who at that time occupied the farm, to enable him to go there and obtain the personal property which he had left there in the spring. When Jackson went to the farm he remained as the permanent [470]*470occupant, and in his answer filed in this suit he claims the right to redeem from the foreclosure.
The facts upon which the trial court based the defendant’s right to redeem are controverted, and will be stated later as they are gathered from the testimony.
The findings of fact upon which the existence of the right of redemption was based are to the effect that, in the bidding in of the land on foreclosure sale, the plaintiff acted in the capacity of agent for the defendant; that by his acts and conduct he led the defendant to believe (and the defendant did have reason to so believe), that the plaintiff was acting as his agent in bidding in and acquiring the sheriff’s certificate; that .■a confidential and trust relation existed between the plaintiff and de-. fendant in connection with the sheriff’s deed, and that the plaintiff’s acts were such as to lead the defendant to believe (and that defendant did believe), that the plaintiff would look after this foreclosure for him and protect him against the loss of his land. The court also found that the defendant, while absent in Iowa, during which time the period of redemption expired, relied upon the plaintiff to look after the matter of the foreclosure in the defendant’s behalf. The foregoing findings raise the only question that is seriously urged upon this appeal. The appellant contends that the evidence does not sustain the findings, and it is clear that if they are not sustained by the evidence the judgment must be reversed because of the absence of any other equitable circumstances upon which the right of redemption could be based.
It is undisputed that the plaintiff had acted as the agent of the defendant in procuring the loan, to secure which the Graeber mortgage was given, but the extent of this agency beyond this is in doubt.
Hendrick’s testimony bearing upon the matter is as follows:
A. Well now, on that date I was at the farm twice. On my way from Dickinson to Mott to attend the sheriff’s sale I stopped to see Mr. Jackson and he was working among his tools in the barnyard, and I told him I was coming down here to attend the foreclosure sale, and asked him then if he had made any arrangements to take care of the Graeber matter and he said no, that he had not, and he wanted me to take care of it; that I would have to bid it in. So I came on to Mott and in the afternoon after the sale I stopped there again. Jackson was working about the buildings and I stopped my automobile near the house, and when [471]*471T got out I told him to tell Mrs. Jackson to come out of the house, I wanted to talk to both of them. And he said: “No, I don’t want you to talk with Mrs. Jackson at all about this matter. I want you to keep it away from her.” Naturally we walked a little ways from the house, and I told him I had bid in all of the land except the 40 acres.
Upon cross-examination he testified as follows:
Q. Now, Mr. Hendrick, before the sheriff’s deed was issued you want us to understand that you were very anxious that Jackson should not lose his land; that he should redeem it ?'
A. Yes, sir.
Q. And you went so far as to make special trips down there to him for that purpose ? '
A. Yes, sir.
Q. You done practically everything that was in your power to encourage Jackson to redeem before the year was up? .....
A. Yes, sir.
Q. During these times you have mentioned you were posing as a friend and adviser of Mr. Jackson’s relative to those deals ?
A. Yes, sir.
Q. In a way with this Graeber deal you were acting as Jackson’s attorney ? .......
A. As his agent, yes, sir. . . .
Q. Now, did you ever tell Mrs. Jackson at any time or any place that you had sold the land ?
A. I told Mrs. Jackson that I had entered-into an agreement to sell.
. . .
Q. Mr. Hendrick, after Jackson came back from Iowa if he had offered to pay you all what you had in the land would you have given him the deed back for it?
A. I couldn’t. I was under obligations of agreement to sell to a party, and I told Jackson that if he would.wait until I could withdraw from that agreement why I would entertain a proposition of that kind.
Q. So then Jackson was talking to you about paying you what you had in the land ?
A. He asked me how much it would take, and I told him I wasn’t in a position to entertain a proposition of that kind at that time.
[472]*472At another place in his cross-examination, Hendrick had staled that he did not claim that he had ever sold the land to anybody else.
Jackson testified that he had listed his land with Hendrick for sale before going to Iowa, and that after he came back from Iowa the plaintiff came out to the place and the following conversation took place between Mr. and Mrs. Jackson and him: “ ‘If you get your money back can we have back our land V He says, ‘Did you see me and a man in the car upon this land V
Free access — add to your briefcase to read the full text and ask questions with AI
Birdzell, J.
This is an appeal from a judgment of the district court of Hettinger county, entered in an action, to quiet title. By the judgment the defendant is permitted to redeem the north half of section 32, township 136 N., range 94 W., from a foreclosure, in pursuance of which a sheriff’s deed has been issued, upon paying to the plaintiff the amount due on the liens and encumbrances. The specification is for a trial de novo. The facts are as follows: In June, 1913, the defendant gave two mortgages covering the above-described land and also the southeast quarter of the southwest quarter of section 30. The first mortgage was to the Fargo Loan Agency for $2,600, and the other was to Jacob Graeber for $664. The latter mortgage was also subject to three other mortgages aggregating $1,320. Max Hendrick, plaintiff and appellant herein, acted as agent for the defendant in negotiating the loans made in June, 1913. The Graeber mortgage was foreclosed in May, 1914, and prior to the foreclosure sale the plaintiff Hendrick had purchased of the defendant for the sum of $1,000 the southeast quarter of the southwest quarter of section 30. Apparently for the purpose of protecting the interest so purchased, the plaintiff appeared at the foreclosure sale and bid in the north half of section 32 for the full amount due on the mortgage. A short while before the expiration of the period of redemption, the defendant Jackson and his wife packed up their effects and left for Iowa, where they remained for the period of about six months. They left their live .stock and some other personal property behind, however. The plaintiff obtained a sheriff’s deed to the premises at the expiration of the period of redemption, and when the defendant returned in the fall of 1915 he went to the plaintiff to obtain an order on the tenant, who at that time occupied the farm, to enable him to go there and obtain the personal property which he had left there in the spring. When Jackson went to the farm he remained as the permanent [470]*470occupant, and in his answer filed in this suit he claims the right to redeem from the foreclosure.
The facts upon which the trial court based the defendant’s right to redeem are controverted, and will be stated later as they are gathered from the testimony.
The findings of fact upon which the existence of the right of redemption was based are to the effect that, in the bidding in of the land on foreclosure sale, the plaintiff acted in the capacity of agent for the defendant; that by his acts and conduct he led the defendant to believe (and the defendant did have reason to so believe), that the plaintiff was acting as his agent in bidding in and acquiring the sheriff’s certificate; that .■a confidential and trust relation existed between the plaintiff and de-. fendant in connection with the sheriff’s deed, and that the plaintiff’s acts were such as to lead the defendant to believe (and that defendant did believe), that the plaintiff would look after this foreclosure for him and protect him against the loss of his land. The court also found that the defendant, while absent in Iowa, during which time the period of redemption expired, relied upon the plaintiff to look after the matter of the foreclosure in the defendant’s behalf. The foregoing findings raise the only question that is seriously urged upon this appeal. The appellant contends that the evidence does not sustain the findings, and it is clear that if they are not sustained by the evidence the judgment must be reversed because of the absence of any other equitable circumstances upon which the right of redemption could be based.
It is undisputed that the plaintiff had acted as the agent of the defendant in procuring the loan, to secure which the Graeber mortgage was given, but the extent of this agency beyond this is in doubt.
Hendrick’s testimony bearing upon the matter is as follows:
A. Well now, on that date I was at the farm twice. On my way from Dickinson to Mott to attend the sheriff’s sale I stopped to see Mr. Jackson and he was working among his tools in the barnyard, and I told him I was coming down here to attend the foreclosure sale, and asked him then if he had made any arrangements to take care of the Graeber matter and he said no, that he had not, and he wanted me to take care of it; that I would have to bid it in. So I came on to Mott and in the afternoon after the sale I stopped there again. Jackson was working about the buildings and I stopped my automobile near the house, and when [471]*471T got out I told him to tell Mrs. Jackson to come out of the house, I wanted to talk to both of them. And he said: “No, I don’t want you to talk with Mrs. Jackson at all about this matter. I want you to keep it away from her.” Naturally we walked a little ways from the house, and I told him I had bid in all of the land except the 40 acres.
Upon cross-examination he testified as follows:
Q. Now, Mr. Hendrick, before the sheriff’s deed was issued you want us to understand that you were very anxious that Jackson should not lose his land; that he should redeem it ?'
A. Yes, sir.
Q. And you went so far as to make special trips down there to him for that purpose ? '
A. Yes, sir.
Q. You done practically everything that was in your power to encourage Jackson to redeem before the year was up? .....
A. Yes, sir.
Q. During these times you have mentioned you were posing as a friend and adviser of Mr. Jackson’s relative to those deals ?
A. Yes, sir.
Q. In a way with this Graeber deal you were acting as Jackson’s attorney ? .......
A. As his agent, yes, sir. . . .
Q. Now, did you ever tell Mrs. Jackson at any time or any place that you had sold the land ?
A. I told Mrs. Jackson that I had entered-into an agreement to sell.
. . .
Q. Mr. Hendrick, after Jackson came back from Iowa if he had offered to pay you all what you had in the land would you have given him the deed back for it?
A. I couldn’t. I was under obligations of agreement to sell to a party, and I told Jackson that if he would.wait until I could withdraw from that agreement why I would entertain a proposition of that kind.
Q. So then Jackson was talking to you about paying you what you had in the land ?
A. He asked me how much it would take, and I told him I wasn’t in a position to entertain a proposition of that kind at that time.
[472]*472At another place in his cross-examination, Hendrick had staled that he did not claim that he had ever sold the land to anybody else.
Jackson testified that he had listed his land with Hendrick for sale before going to Iowa, and that after he came back from Iowa the plaintiff came out to the place and the following conversation took place between Mr. and Mrs. Jackson and him: “ ‘If you get your money back can we have back our land V He says, ‘Did you see me and a man in the car upon this land V She says, ‘Yes.’ He says, ‘I sold the land and got my money for it.’ I says, ‘You can’t sell the land.’ That is after I commenced proceedings against him. He says, ‘I sold it and got the money for it.’ ” Jackson also testified that on a previous occasion in Dickinson, Hendrick had told him that if he did not sell the land he could have it back by paying up his back interest. The testimony of the Jacksons and that of Hendrick is not, of course, consistent, but in that portion of Hendrick’s testimony which is quoted above there are sufficient admissions of circumstances and facts to warrant the court in giving to the testimony of the Jaclcsons the greater weight. In so far as questions of veracity arise, -we are conscious of the superior facilities of the trial court for forming a reasonable conclusion. We are satisfied from an examination of the record that there is sufficient evidence to amply sustain the findings of the trial court relative to the agency, the confidential relations, and of the reliance of the Jaeksons upon Hendrick for protection in the matter of the foreclosure of the Graeber mortgage. Tliere are circumstances in addition to those previously referred to that lend support to the findings. These pertain to previous transactions in which Hendrick had assisted the J aclcsons in financial matters by acting as their agent and adviser.
The appellant has made a motion herein to strike the amended answer from the record on several grounds. The only ground that we need consider is that which goes deepest into the merits of the motion presented. It is contended that the copy of the amended answer which is substituted in the record for the original, on account of the loss of the original, does not conform to the amended answer as dictated into the record at the time of the trial. Appellant’s counsel has apparently overlooked the motion made by respondent’s counsel at the close of the trial, in which he moved for leave to further amend the answer to conform to the facts developed during the trial, by adding the following allegation: “That, [473]*473at the time the fraud herein alleged was perpetrated, Mas Hendrick was the confidential agent for the defendant Jackson; that he violated his trust relationship. ...” The statement of the case does not show that the court ruled on this motion, but in the light of the findings which were subsequently made it is clear that the court considered the issues, presented as having been properly raised. In this state of the record, this court will have to consider that the answer was so amended. ' Since the respondents are entitled to a trial de novo upon the issues that were presented in the trial court, it would be futile to strike the amended, substituted answer from the record. The allowance of the motion co-uld at most but result in ultimately incorporating an answer which would conform to the issues tried below.
The motion to strike is denied, and the judgment of the trial court is in all things affirmed.
Bruce, Ch. J. I dissent. It appears to me that no agency is proved.