Mowry v. Gold Stabeck Co.

186 N.W. 865, 48 N.D. 764, 1922 N.D. LEXIS 98

• Court: North Dakota Supreme Court
• Decided: January 31, 1922
• Status: Published

Opinions

Bronson, J.

This is an action to determine adverse claims concerning one-half section of land in Rolette county. The plaintiff has appealed from the judgment, and has demanded a trial de novo.

The trial court found: That the Twin City Investment Company the owner of the land in May, 1915, gave to one Winter a contract for a deed. That Winter in May, 1916, assigned such contract to the defendant Ritz. In February, 1914, the investment company made a mortgage for $5,000 to Klein. In May, 1916, the defendant Ritz made a mortgage to the Gold-Stabeck Company for $2,000. In November, 1917, the defendant Ritz being indebted to Wheelock Mowry, the father of the plaintiff, made an agreement, for purposes of securing such indebtedness and advances to be made, with Mowry to have a warranty deed executed by the investment company to one Janzow, and thence by Janzow to Wheelock Mowry, to secure $5,000 then due from Ritz to Mowry, and that thereupon Mowry would execute a contract for a deed to Ritz for reconveyance upon payment of such $5,000 and the $5,000 first mortgage. Such deeds and contract were made. At that time the defendant Ritz had paid to the investment company the balance owing on the contract for a deed with Winter, and Ritz was then entitled to a warranty deed of the land. At that time Wheelock Mowry had full knowledge of the Gold-Stabeck mortgage, and that the same was unpaid. That the plaintiff at all times had full knowledge of such transactions. The plaintiff, or other members of the Mowry family, paid taxes and the principal and interest of the Klein first mortgage, aggregating, in toto with interest, $6,869.36. That the defendant Ritz is the owner of the lands, and entitled to the possession subject to the payment to plaintiff of $6,869.36, the $2,000 Gold-Stabeck mortgage with interest, and the sum of $5,000 to the plaintiff with interest. Pursuant to such findings judgment was entered. In the evidence it appears that Wheelock Mowry died in 1919, and prior thereto made a deed of the land, dated March 29, 1919, to the plaintiff for a consideration of $1 and other valuable considerations. At the trial, defendant Ritz testified concerning many transactions and arrangements had with Wheelock Mowry, then deceased. The record is long, and the exhibits numerous. It is unnecessary to state at length the evidence. The plaintiff contends that, upon the record, he is an innocent purchaser of the land without notice of the Gold-Stabeck mortgage, and that the trial court should have confirmed his title; that the trial court erroneously permitted the defendant Ritz to testify concerning transactions had with a deceased person; that the contract for a deed given to Ritz by Mowry was duly canceled, and the defendant Ritz had no title in the land; that the Gold-Stabeck mortgage did not attach to the land so far as plaintiff’s interests are concerned; that, in any event, the trial court erred in not allowing priority to the plaintiff for certain payments made for taxes and upon the Klein mortgage. The defendant contends that the deed from the father to the plaintiff was a forgepy (the trial court, in its memorandum opinion, strongly so intimates) ; that the trial court erred in not granting priority to the Gold-Stabeck Company mortgage.

Upon^a consideration of the entire record we are of the opinion that the findings and conclusions of the trial court should be sustained. Although the record is neither clear nor definite concerning application that should be made for payments made by Mowry in taxes or liens upon the land, we are unable to find that the computations of the trial court are erroneous. The contention of the plaintiff, namely, that the trial court erroneously received testimony of the defendant Ritz concerning transactions had with the deceased Mowry, cannot be sustained. The statute, precluding testimony concerning transactions had with deceased persons, is specific in its character, and relates only to actions wherein the person representative, heirs, or next of kin are parties. § 7871, C. L. 1913. The plaintiff did not appear in that capacity he claims title through a deed made by his father during lifetime. The statute cannot be extended by judiical construction beyond its plain application. Lake Grocery Co. v. Chiostri, 34 N. D. 386, 400, 158 N. W. 998; Clarke v. Ross (Iowa) 60 N. W. 627, 629. See St. John v. Lofland, 5 N. D. 140, 64 N. W. 930; Wigmore on Evidence, vol. 1, § 578; Druey v. Baldwin, 41 N. D. 473, 479, 172 N. W. 663, 182 N. W. 699; Williams v. Clark, 42 N. D. 107, 114, 172 N. W. 825, 827. Accordingly, the judgment should be in all things affirmed.

Grace, C. J., and Ci-iristianson and Birdzell, JJ., concur.