Powell v. International Harvester Co. of America

170 N.W. 559, 41 N.D. 220, 1918 N.D. LEXIS 151

• Court: North Dakota Supreme Court
• Decided: November 18, 1918
• Status: Published

Opinions

Grace, J.

Appeal from a judgment of the district court of Ramsey county, North Dakota, Honorable C. W. Buttz, judge.

This is an action to cancel and "reform a certain deed given by one John Largent to Patrick D. Norton to Lots 1 and 2, and the S.-J of the N.E.J of section 1, township 157, north of range 63 west. The action is for the further purpose of compelling specific performance of a certain contract alleged to have been entered into with reference to said land between the International Harvester Company of America and the plaintiff. The cancelation of the deed is asked upon the ground of .fraud alleged to have been perpetrated by Patrick "D. Norton upon John Largent in procuring tbe said Largent to execute tbe deed in question to said land, Largent at tbe time of tbe execution of tbe deed being tbe owner in fee of said land, subject to certain encumbrances. Tbe complaint fully sets out tbe cause of action along tbe lines above-dictated, and further sets forth tbe alleged false and fraudulent representations of Partick D. Norton to John Largent at tbe time of tbe execution and delivery of tbe deed in question. It also alleges tbe ownership of tbe land in dispute in Largent; tbe giving of tbe mortgage thereon to Powell and tbe default and foreclosure of tbe same and the sale by foreclosure on May 4th, 1903, and tbe purchase of tbe land at foreclosure sale by Powell. It alleges tbe judgment in favor of tbe Warder, Bushnell, and Glessner Company against Largent on January 20, 1896, for $131.78 in tbe justice court of Peoria, Illinois, and tbe assignment of said judgment to tbe International Harvester Company. Largent filed a complaint in intervention wherein be admitted tbe existence of tbe judgment against him above referred to. Tbe intervener in substance alleges that in tbe spring of 1904, Patrick D. Norton, then and sometime prior thereto, was tbe traveling representative or agent of tbe International Harvester Company of America and so represented himself to be to tbe intervener and demanded payment of tbe judgment; that be told Norton that be was unable to pay tbe judgment thereupon Norton asked tbe intervener to give a deed to tbe International Harvester Company of America to tbe real property involved herein, in order that tbe International Harvester Company might redeem from tbe Powell foreclosure; that if tbe intervener would execute said deed, tbe International Harvester Company and Patrick D. Norton would cancel, satisfy, and discharge tbe judgment then held by tbe Harvester Company; that tbe inter-vener supposed and Norton represented to him that tbe deed ran to tbe Harvester Company, but notwithstanding tbe agreement tbe inter-vener has been informed and verily believes tbe deed ran to tbe defendant, Patrick D. Norton individually; that in truth and in fact said deed was delivered for tbe International Harvester Company of America, and not for Patrick D. Norton individually; that tbe judgment against intervener bas not been canceled or discharged. Tbe intervener alleges tbe equity in real estate to be of tbe value of $2,200. It is further alleged redemption from the Powell foreclosure was. made by virtue of said deed and that Mary Norton, sister of Patrick D. Norton, to whom the land was transferred by Patrick D. Norton, took the same with full knowledge and notice of all the circumstances under which the deed had been obtained. The intervener did not appeal from the judgment.

The International Harvester Company, in substance, in its answer states that the transfer of any real estate from John Largent to Patrick L>. Norton was made to Norton personally; that defendant admits entering into the written agreement, Exhibit A, with Powell and alleges it has carried out its part of the agreement; that it had deposited in the Eamsey County National Bank at Devils Lake, an assignment of the judgment mentioned and described in Exhibit A and demanded the sum of $130, balance due under contract which Powell refused and still refuses to pay and alleges the payment by Patrick D. Norton to John Largent of the consideration agreed to be paid for the said real estate.

Patrick D. Norton for his separate answer admits that he was collector for the International Harvester Company and did, on the 22d day of April, 1904, call upon John Largent and requested payment for the judgment heretofore mentioned. He admits the execution and delivery of the deed from Largent to him of the land in question, and denies that the International Harvester Company had any interest in the sale, conveyance, and transfer of the land from Largent to him. He alleges the sale, transfer, and conveyance of all his right, title, and interest of the premises to Mary E. Norton and the redemption from the foreclosure’ sale by paying the sheriff of Eamsey County, North Dakota, $381.32, and alleges that Mary E. Norton had no notice or knowledge of equities on the part of the plaintiff. He alleges payment to John Largent of the consideration in full agreed to be paid by the defendant to Largent as purchase price of said real estate. The International Harvester Company also interposed an answer to the complaint in intervention, which, in substance, is largely similar to the answer of the defendant. The facts, concisely stated, are as follows:

Largent was the owner of the land in question. He mortgaged the game to Powell. Powell foreclosed and the sale was had May 4th, 1903. Time for redemption expired April 27, 1904. Patrick D. Norton received a deed for tbe land from Largent and thereafter deeded it to bis sister, Mary E. Norton, wbo made redemption by paying tbe required amount of money to tbe sheriff as afores fated. Warder, Bushnell and G-lessner Company bad judgment in the amount here-inbefore stated against Largent. Tbe Harvester Company admits tbe execution and delivery of tbe deed to Patrick D. Norton and denies it bad any interest in tbe sale, conveyance, and transfer of tbe land to Patrick D. Norton. Tbe plaintiff claims Patrick D. Norton was tbe agent of tbe International Harvester Company and that tbe transfer to him was for tbe benefit of tbe Harvester Company. It is claimed by plaintiff that Patrick D. Norton represented to Largent that if Largent ivould give him a deed for the land, be would satisfy tbe judgment recovered against him by tbe Warder, Bushnell, and Gless-ner Company. Tbe judgment was never satisfied.

Tbe plaintiff claims that Norton charged tbe International Harvester Company tbe $1 which be paid to Largent at tbe time tbe deed was acknowledged. In this we think tbe plaintiff is mistaken. Tbe testimony clearly shows that Norton paid Miller, tbe notary public wbo took tbe acknowledgment, $5 for his services, and this was not charged to tbe International- Harvester Company but was paid by Norton personally. Miller testified that, at Norton’s request, be' advanced $1 which Norton paid to Largent. It is clear that tbe $1 paid to Largent by Norton was not charged to tbe International Harvester Company. Norton made two trips to Largent’s. Tbe first trip be was driven there by Dr. McNaughton, veterinarian, rvho, in bis testimony, says bis charges were $2.50, and he signed a voucher to tbe International Harvester Company for $3.50. Whatever tbe extra $1 was for in such voucher, it is clear from tbe testimony of Miller, wbo is plaintiff’s witness, that it is not tbe $1 that was paid by Norton to Largent, and it is clear that tbe $1 paid by Norton to Largent, which be procured from Miller, was never charged to tbe International Harvester Company. It is also clear that tbe first trip made by Norton to Largent’s in company with McNaughton was for tbe purpose of looking after tbe collection of tbe judgment above referred to, and in doing this be was looking after tbe Harvester Company’s business as it was looking after tbe collection of tbe judgment, and there seems to be no irregularity in charging the expense of tbe trip to the Harvester Company. The fact that this $3.50 voucher was charged to the Harvester Company, in no manner shows or tends to show that Norton was acting for the Harvester Company when he took the deed of the land in question to himself.

The agreement between the International Harvester Company of America and A. M. Powell is as follows:

“This agreement between International Harvester Company of America and A. M. Powell is to the effect that for $150 cash the judgment against John Largent dated January 20, 1896, for $131.28, justice court, Peoria Co., Illinois, is to be assigned to George W. Mooers, and if any quitclaim deed or other deed from John Largent to this company should be recorded at Devils Lake, North Dakota, on or before May 6, 1904, the land so conveyed is to be quitclaimed back to George W. Mooers. This refers to lots 1 and 2 S.-J of N.E.f, section 1, township 157, range 63, and in consideration of the above $150 of which $20 is received to-day, the company agrees to not in any way hinder issuance of sheriff’s deed on above land by virtue of the foreclosure proceedings by A. M. Powell which entitle him to sheriff’s deed by May 6, 1904.

“If any quitclaim deed has been taken by our representative to this company and not recorded such instrument will be surrendered to George W. Mooers. The assignment and deed, if any, are to be sent to Eamsey County National Bank at Devils Lake, North Dakota, and to be surrendered to George W. Mooers or A. M. Powell on payment of the balance which is $130. Said deed if any to read to George W. Mooers as grantee.

“Signed by the Company per collecting agent Larson and by Powell.”

In the trial court, the judgment is in favor of the plaintiff. From the judgment Patrick D. Norton and Mary E. Norton appealed. The intervener did not appeal and his claims as set forth in his complaint of intervention are not at this time before the court. Mary E. Norton made redemption of the land by paying to the sheriff of Eamsey county, the sum of $381.32, and received a sheriff’s certificate of redemption and thereafter took possession of the land and had it cropped. Her testimony shows that she agreed to pay Patrick D. Norton $500 for the land and that $300 of the same was paid by her making a loan on a piece of land near Bartlett, of the proceeds of which Patrick D. Norton retained $300 and she received $200.

From the foregoing it appears that the entire amount of the foreclosure was paid to the sheriff by Mary E. Norton for the redemption from the Powell mortgage foreclosure. It is apparent therefore that all Powell had to do to get his money and all of it, was to call at the sheriff’s office and receive the same. He would then have no further interest in such land by reason of the mortgage nor the foreclosure thereof, and would no longer be a creditor of Largent for Largent’s obligation to him would have been fully paid by the redemption.

If Patrick D. Norton perpetrated a fraud upon Largent, and procured the deed from Largent to himself by means of false and fraudulent representations, that was a matter which, is' personal between Largent and Norton and of which the plaintiff cannot be heard to complain, and especially not since the record clearly shows that the amount of money necessary to redeem from his foreclosure has been paid in to the proper place, the sheriff’s office for the purpose of redeeming from the foreclosure. It is clear that Largent did not give the deed to Patrick L). Norton in order to defraud the plaintiff. The plaintiff, in. any event, could not be defrauded out of his mortgage and there was no attempt to do so, the full amount of the money necessary to redeeem from the mortgage having been properly paid. When Largent gave the deed to Patrick D. Norton, he transferred to him the legal title of the land. If he were induced to do this by a fraud, that is personal to him and he alone may complain, unless the transfer was made in order to defraud creditors when a different question might arise. Powell was in no manner a party to the deed and is in no position to assert fraud, and, in this ease, he cannot do so. The matter of fraud in this case is between Patrick D. Norton and Largent and then only, unless it should appear that Mary E. Norton had notice or knowledge of the fraud, if any, and as the record now stands, it does not so appear. Her knowledge or notice of fraud would become material only upon that issue being presented as between Largent and Patrick D. Norton. It does appear that she purchased the land from Patrick D. Norton for $500, that he was instrumental in procuring a a loan for her on other lands which she owned and part of which money was paid upon the purchase price, and that he acted for her in looking after tbe payment of tbe Powell mortgage, that is, by making tbe redemption, in ber name, from tbe foreclosure sale.

Tbe 8tb, 9tb, lOtb and lltb findings of fact of tbe trial court relate to tbe alleged fraud of Patrick D. Norton in procuring tbe deed to said land from Largent. Upon these must rest principally tbe conclusions of law at wbicb tbe court arrived. Upon examination of tbe conclusions of law reached by tbe court, it will be noticed that tbe court based its conclusion solely upon tbe question of fraud. In order to demonstrate this more clearly, we will set out at length tbe findings of tbe court in this regard. They are as follows:

“That tbe deed to tbe premises heretofore described of John Lar-gent, intervener, to tbe defendant, Patrick D. Norton, dated April 27th, 1904, recorded in book 170 of deeds on page 237 in tbe office of the register of deeds of Ramsey county, North Dakota, was obtained by fraud and misrepresentations and that tbe same is void and canceled of record.

“That tbe defendant, Mary E. Norton, was not an innocent purchaser of tbe premises described in said action from tbe defendant, Patrick D. Norton, and that tbe deed for tbe said premises from tbe defendant, Patrick D. Norton, to tbe defendant, Mary E. Norton, dated May 4th, 1904, and recorded in book 190 of deeds on page 485 in tbe office of tbe register of deeds of Ramsey county, North Dakota, should be canceled of record.”

Tbe only other conclusion of law reached by tbe court is that Albert M. Powell is entitled to sheriffs deed based upon tbe foreclosure of tbe mortgage and that tbe filing of tbe certified copy of tbe judgment in this action in tbe office of register of deeds would have tbe effect of canceling of record tbe said deed of Largent to Patrick D. Norton and the deed from him to Mary E. Norton. It is clear from these conclusions that tbe court considered no question except that of fraud. Its conclusions of law, as we have seen, relate almost wholly to this subject and, as we view tbe matter, its conclusions are entirely wrong, measured by tbe result at wbicb tbe court arrived and tbe party benefited, that is, A. M. Powell. Tbe court’s conclusions might be right if tbe action were being prosecuted by Largent against Patrick D. Norton, if they were supported by competent testimony. Powell is in no position to raise tbe question of fraud, hence be can receive no benefit from the conclusion of law at which the court arrived. The court finds, in its 11th finding of fact, that the International Harvester Company of America did not authorize Patrick D. Norton to take or accept a deed of conveyance of the premises of the intervener and did not accept the same in payment of the judgment in question, and had not released the intervener from the payment of the judgment. Assuming this to be true, and, it being conceded that Patrick D. Norton took the deed in his own name, he could not be said to hold it in trust for the Harvester Company. He claims to have taken it on his own account and his own responsibility and to himself individually. Lar-gent also signed up a stipulation and acknowledged it to that effect, and also stipulated to dismiss this action by way of intervention.

The Harvester Company, in its answer, claims that Norton bought it substantially as he alleges. Under these circumstances and considering all the testimony including that of Largent, and taking into consideration the contract, exhibit A, between the International Harvester Company and Powell, we do not believe there was any resulting trust in favor of Powell; neither do we believe the plaintiff is in position to ask for specific performance of that contract, which relates only to an assignment of the judgment, and provides, further, that any quitclaim or any other deed from Largent to the company should be recorded at Devils Lake, North Dakota, on or about May 6th, 1904, the land so conveyed to be quitclaimed back to George W. Mooers. No such deed appears to ever have been delivered or recorded. This referred to the land in question. The further provision was to the effect that if any quitclaim deed had been taken by representatives of the company to the company and not recorded, such instruments would be surrendered to George W. Mooers. There is no evidence that any such deed was ever taken to the company. There is no evidence to show that the International Harvester Company ever received a deed to the land, or any evidence to show that any of its representatives took a deed to the company. As we view it, this is not such a contract as may be enforced by specific performance because of the uncertainty of the facts. There are many disputed questions of fact in the case. This being true, the contract, we do not believe, is subject to be enforced by specific performance. Courts of equity will neither decree nor enforce specific performance of contracts requiring, first, tbe determination of questions of fact. Specific performance ought not to be decreed unless tbe contract is definite and certain in its terms. Every material element of tbe contract should be certain and tbe minds of tbe parties should have met and agreed upon all tbe material terms of tbe contract, and no material part of tbe contract should be in dispute. In tbe case at bar tbe first disputed question is whether tbe deed in question was made to Patrick D. Norton individually. Plaintiff seriously contends it was not. Defendant just as seriously and strongly contends that it was, and finally produces tbe written admission of Largent to that effect which was acknowledged before a notary public.

It also appears that Largent entered into a written stipulation dismissing this action by way of intervention. Under these conditions, specific performance ought not to be decreed. There is evidence in tbe record that at the time Patrick D. Norton took tbe deed to tbe land, be considered be bad made a profit of $1,000 by tbe transaction. Largent in bis complaint in intervention claimed there was equity in the land of $2,200. It may be assumed that Norton would make a profit of somewhere between $1,000 and $2,200, this based upon tbe value of tbe land at tbe time of tbe transaction. Tbe land, of course, may be worth a great deal more at this time. It is also clear that if Powell should be permitted to prevail, be would make tbe same profit. The amount of money due on Powell’s mortgage which was foreclosed is in tbe bands of tbe sheriff for him and has been since the time here-inbefore stated. He cannot be a loser as a creditor. What be does lose is tbe opportunity to acquire tbe value of tbe equity of such land without giving any consideration therefor. We are clear that Powell is in no position to raise tbe question of fraud, it being a matter personal to Largent, nor can tbe court of equity decree specific perform-' anee of tbe contract, exhibit A, by reason of the uncertainty and indefiniteness of its terms and tbe several disputed question of fact’ relating to tbe contract. Largent has not taken an appeal from tbe judgment to this court, and for that reason we cannot determine bis rights in tbe matter, if any.

Judgment appealed from is reversed and tbe case is remanded for further proceedings in harmony with this opinion. Tbe appellant is entitled to recover statutory costs on appeal.