author: JOHNSON, Judge.

text:
    STATE of North Dakota, Plaintiff and Respondent, v. Arnold HANSON, Defendant and Appellant.
    Cr. 265.
    Supreme Court of North Dakota.
    Nov. 21, 1955.

      Aaron Aronson, Fargo, for defendant and appellant.
    Lyle E. Huseby, State’s Atty., and Frank T. Knox, Asst. State’s Atty., Fargo, for plaintiff and respondent.
   JOHNSON, Judge.

On November 17, 1954, in the county court of increased jurisdiction of Cass County, North Dakota, the defendant was convicted by a jury of the crime of operating a motor vehicle while under the influence of intoxicating liquor. He has appealed.

On August 27, 1954, between 8:00 and 8:30 p.m., the defendant was driving his automobile on Highway Ten in an easterly direction approximately twenty-seven miles west of Fargo, North Dakota. Highway Patrolman Koehn was also driving in the same direction behind the defendant. He noticed that the defendant swung across the center line of the highway and then onto the shoulder of the highway a couple of times. His attention' was attracted to the defendant’s manner of driving by a cloud of dust created by his car each time he reached the south shoulder of the highway. The swerving manner in which the defendant drove his car caused the patrolman to stop him, arrest him and transport him to the county jail at Fargo, North Dakota.

The defendant has assigned five specifications . of error on which this appeal is based. Four of the specifications there relate to rulings of the trial court in the admission of evidence. One relates to the court’s instructions to the jury relating to the definition of intoxicated or under the influence of intoxicating liquor. We discuss these as presented by the appellant.

The first specification cited relates to a question put to Mr. Koehn, the highway patrolman :

“Now, Mr. Koehn, did you have an opportunity to observe whether or not the defendant was under the influence of intoxicating liquor? Answer ‘Yes’ or ‘No’. A. Yes.
“Q. And what is your opinion as to whether or not he was under the influence of intoxicating liquor?”

This was objected to as “calling for an opinion; not based on sufficient facts; not having any foundation for showing.”

“The Court: Well, of course, the rule is that opinion isn’t admissible. On that question, overruled.
“Mr. Knox: Go ahead. A. That he was under the influence of intoxicating liquor.”

The defendant presented no argument in his brief on appeal on this specification. Errors assigned in brief, but not argued, may be deemed abandoned. Kelly v. Pierce, 16 N.D. 234, 112 N.W. 995, 12 L.R.A.,N.S., 180; Olson v. Armour & Co., 68 N.D. 272, 276, 280 N.W. 200, 201.

The issue here involved is whether or not the defendant was under the influence of intoxicating liquor at the time he was operating his motor vehicle, oñ his way to Fargo, on the evening of August 27, 1954. The patrolman had testified to the facts and circumstances that indicated that the defendant was under the influence of liquor at the time of his "arrest. He described how the defendant had driven just prior to his arrest. Upon the arrest of the defendant and while observing him, the officer detected the smell of alcohol from his breath. The defendant’s eyes were starey and when he got out of his car, he was unsteady when he walked and his body swayed. The patrolman suggested that the defendant had “quite a bit to drink” to which he said the defendant responded that he did not have too much to drink. He further testified the defendant told him that he had a “fifth” from ten o’clock in the morning until the patrolman saw him.

The defendant took the stand in his own behalf. He admitted that he had had “two shots of whiskey” between two and three-thirty that day. He denied that he had any intoxicating liquor after that .time. He denied that he had told the patrolmán that he had had a fifth of whiskey; that he had said:

“I says that if this would have happened a week ago when I was on vacation, I would have told you probably a fifth of whiskey.”

He denied that on the way to Fargo, a distance of about twenty-seven miles he had had any .conversation with Patrolman Koehn regarding a blood test. On cross-examination the defendant was asked:

“Q. Well, now, didn’t you state' during that trip into town to Officer Koehn that you could not take the blood test because 30% is drunk, and you had probably 50% in your blood because you had been drinking for ten days?
"Mr. Aronsdn: I object, Your Hon- or, please. That question is not a matter that was brought up in direct examination.
“The Court: Well, the rule is that when the defendant takes the stand, he can be questioned on anything that took place — any part of the conversation. The state could not bring this up except on cross-examination where it’s permissible on two grounds, one being for impeachment purposes and the other as part of the res gestae.
“Mr. Aronson: It’s not a matter brought out in direct examination.
“The Court: Well, that’s true— well, you mean on direct.”

The question was then repeated and the defendant answered:

“A. No, I did not make that statement.”

It is further specified that the court erred in overruling the defendant’s objection to the following question:

“Q. Did you state at that time to Mr. Koehn, ‘If you will not put me in jail, I will take the blood test’?
“Mr. Aronson: I object to the question as bringing out testimony that’s not been shown, and it’s done for the purpose of prejudice — it’s very prejudicial.
“The Court: Overruled. ' It’s admissible for the purpose of impeachment.”

The defendant again denied having made the statement.

The defendant was then asked if he had been taken to St. John’s Hospital for a blood test, and that he had refused to take it; that he had refused to sign the consent for it. The defendant admitted that he was taken to the St. John’s Hospital but denied that he had agreed to take the test. At the conclusion of this testimony motion was made to strike it on the ground that it was prejudicial and brought out to influence the jury. The motion was denied. If this was proper cross-examination, then the motion to strike was properly denied.

The early case of State v. Kent, 5 N.D. 516, 67 N.W. 1052, 35 L.R.A. 518, sets out in broad outline the general scope allowed in cross-examination of a defendant. There are numerous ways of impeaching the credibility of a witness, and the defendant was a witness in his own behalf, by cross-examination, by proving previous contradictory statements or acts, by producing record of conviction of a crime, by adducing generally evidence tending to show that the witness is unworthy of belief. Evidence impeaches a witness when it assails his general credibility or otherwise weakens the force of his testimony and detracts from the weight to be given it. In State v. Kent, supra, 5 N.D. at pages 547-548, 67 N.W. at page 1060, it was said:

“But, while the strict rule limits the cross-examination to the subjects about which the witness testified in chief, this does not mean the particular facts to which the witness directed his testimony. Any subject that has been opened may be exhausted. A defendant, on the witness stand, cannot testify to just such facts as may be in his favor, and, by stopping there, preclude inquiry into all the facts pertaining to the subject. See cases already cited. There are statutes in some of the states limiting the cross-examination of defendants in criminal cases, and, under these statutes, a stricter rule of cross-examination has been enforced by the courts. But we have no such statute in this state, and certainly the administration of justice does not require this limitation upon the ascertainment of truth.” (Emphasis supplied.)

The defendant by his own testimony, while admitting some drinking in the early afternoon, denied drinking thereafter that day, thereby implying that at the time of the accident he was not under the influence of intoxicating liquor. Having opened up the subject in his own testimony it was entirely proper and relevant to the examination in chief to allow the state to interrogate him concerning the conversation about a blood' test, and other statements made by the accused in that connection.

“It is also well established that, when a defendant in a criminal case voluntarily takes the witness stand in his own behalf, he thereby subjects himself to the same rules of cross-examination that govern other witnesses, * * State v. Kent, supra, 5 N.D. at page 541, 67 N.W. at page 1058.

A defendant cannot be compelled to testify. But when he voluntarily does so, he waives his constitutional privilege of not being required to give evidence tending to incriminate him, to impeach him, and he may be asked questions as to other offenses the same as any other witness. State v. Kent, supra. Where an accused voluntarily takes the witness stand in his own behalf, he waives his constitutional privilege of not answering proper questions that may tend to convict him of the crime for which he is on trial and he subjects himself to the same rules that govern other witnesses as to cross-examination and impeachment. When he voluntarily offers testimony upon any fact, the same constitutes a waiver as to all other relevant facts because of the necessary connection between them all. 58 Am.Jur, Witnesses, Sec. 96, p. 80. See also Wigmore, Evidence, 3rd ed., Sec. 2276(2), p. 441. The rules of evidence in civil cases are also applicable in criminal cases, except as otherwise provided in Title 29, Judicial Procedure, Criminal, Section 29-2112, ND RC 1943.

We find no error in the rulings of the trial court.

We will next determine whether there was error in the definition of the trial court as to the meaning of the phrase, “under the influence of intoxicating liquor.” The trial court instructed in that regard as follows:

“On the question of intoxication, I charge you that under the law and within the issues of this case, a person is intoxicated or under the influence of intoxicating liquor when his mental and physical functions have become abnormal to some slight or great extent from the use of intoxicating liquor. It is immaterial whether the amount of liquor consumed was large or small.”

It is argued that under this instruction a normal and conscientious jury would be bound to find the defendant guilty if he had had any liquor at all; that this ⅛ struction over-emphasizes the fact that taking any amount of liquor would necessitate that the jury find the defendant guilty; that the instruction gave the jury an erroneous impression as to the degree of proof required.

The instructions, of course, must be considered in their entirety. Ramage v. Trepanier, 69 N.D. 19, 283 N.W. 471; Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11. Immediately after the instruction alleged as error, the court said:

“It depends upon how it affects his mental processes and bodily functions.”

The defendant here ds not charged with being intoxicated, but being under the influence of intoxicating liquor. If he was, in fact, intoxicated, he was of course under the influence of intoxicating liquor. But he could well be under the influence of intoxicating liquor without being intoxicated. The expression “under the influence of intoxicating liquor” simply means having drunk enough to disturb the action of the physical or mental faculties so that they are no longer in their natural or normal condition; that therefore, when a person is so affected by intoxicating liquor as not to possess that clearness of intellect and control of himself that he would otherwise have, he is “under the influence of intoxicating liquor” and this is the common and well-known understanding of the expression. See 43 C.J.S., Influence, p. 378; State v. Graham, 176 Minn. 164, 222 N.W. 909. It is also commonly known that there is a great variation in the effect that liquor produces upon individuals. The quantity of liquor taken by one individual, which does not seem in any way to affect him, may cause another to lose that clearness of intellect and control that he would otherwise have had. It, clearly is not the amount involved, but the effect that determines whether the person is under the influence of intoxicating liquor.

It has been held also that a person who has taken a drink of intoxicating liquor is not necessarily under its influence, but if it affects the person’s control to the slightest degree,, and he is less able, either mentally or physically, or both, to exercise a clear judgment and steady hands necessary to handle an automobile with safety to himself and the public, he is “under the influence of intoxicating liquor” within the meaning of the statute making it unlawful to operate an automobile while under the influence of intoxicating liquor, NDRC 1953 Supp. 39-0801. State v. Sisneros, 42 N.M. 500, 82 P.2d 274. Other expressions are found in other cases dealing with the definition of the statement “under the influence of intoxicating liquor.” In the case of Latimer v. Wilson, 130 N.J.L. 159, 134 A. 750, it was held that the expression covers not only all of the well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors■ and which tend to deprive an individual of that clearness of intellect and control of himself which he would otherwise possess. To the same effect see the case of Packard v. O’Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317. The expression has also been defined: “As any. influence which lessens in any appreciable degree the ability of the accused to handle his automobile”, and has been held to cover “any abnormal mental or physical' condition,, and the lessening in the slightest or any degree of the accused’s ability to operate a vehicle.” State v. Hurd, 5 Wash.2d 308, 105 P.2d 59, 62.

While the definition of the trial court is not in the exact words of the cases referred to, its purport and meaning are the same. These cases indicate as was said by the trial court in the instruction, “That it is immaterial whether the amount of liquor consumed was large or small.” The measure of its effect upon the mental and bodily processes of the individual determines whether he was under the influence of'intoxicating liquor which to any degree affected his ability to operate his automobile within the meaning of the statute prohibiting the operation thereof while “under the influence of intoxicating liquor.” The instruction was not erroneous.

We find no prejudicial error. The judgment of conviction is affirmed.

BURKE, C. J., and SATHRE, MORRIS and GRIMSON, JJ., concur.


source: Caselaw Access Project

author: MORRIS, Judge. GRIMSON, Judge

license: Public Domain

text:
    Eveline SYRUP, Percy Syrup, Alverna Ecklund, Alice Best, Harold Syrup, and Lloyd Syrup, as Administrator of the Estate of William Henry Syrup, deceased, Appellants, v. Stanley PITCHER, Respondent.
    No. 7431.
    Supreme Court of North Dakota.
    Oct. 10, 1955.
    Rehearing Denied Dec. 5, 1955.

      W. T. DePuy, Grafton, for appellants.
    Robert H. Lundberg and F. E. McCurdy, Bismarck, for respondent.
   MORRIS, Judge.

This case originated in a proceeding in the Matter of the Estate of William Syrup, deceased, wherein Stanley Pitcher filed in the County Court of Pembina County a petition for the conveyance of real estate sold by the decedent during his lifetime. In this petition it is alleged that prior to June 26, 1951, oral negotiations had been entered into between the decedent and the petitioner relative to the sale of certain land in Pem-bina County described as the East Half of the Southeast Quarter of Section 16, Township 162, Range 56. The petitioner also alleged that on June 26, 1951, he paid in full for the land and the decedent gave him possession thereof. He alleged the purchase price to be $1,600, which was paid to an escrow agent, and declared that there has been sufficient performance of the oral contract to take it out of the statute of frauds. He then prayed for an order and decree of the county court directing Lloyd Syrup as administrator of the estate to convey title to the petitioner and receive the purchase price in accordance with the oral contract.

A hearing was had on the petition which resulted in an order of the county court directing Lloyd Syrup as administrator of the estate of William H. Syrup, deceased, to convey to Stanley Pitcher by good and sufficient administrator’s deed, free of encumbrance, the real property above described and to receive the purchase price in the sum of $1,600. From this order the administrator appealed to the District Court of Pembina County. The appeal was taken upon all questions of law and fact and a new trial in the district court was demanded. The notice of appeal also set forth these specific assignments of error:

“1. That the County Court erred in finding there was a Contract made between the decedent and the said Stanley Pitcher for the sale and purchase of the premises described in said purported Order.
“2. That the County Court erred in finding that the said Stanley Pitcher partly performed said claim Contract for the purchase by him of the premises described in said purported Order.
“3. That the County Court erred in decreeing specific performance of a void Contract.
“4. That said purported Order for the conveyance of the real estate therein described is not in conformity with the provisions of the statutes relating to specific performance of the alleged contract for the purchase of real estate and is null and void.”

Before the case came to trial in the district court there appears to have arisen at least a doubt in the minds of the district court and the attorneys representing the parties as to the power of the county court to decree specific performance of an oral contract for the sale of land. See Section 30-1311, NDRC 1943; Fox v. Fox, 57 N.D. 368, 221 N.W. 889. By agreement of the parties the case was tried de novo in the district court as an action in specific performance as though the case had originated in that court.

The trial court made findings which recited that during the month of June 1951, Stanley Pitcher and William Henry Syrup made an oral agreement for the purchase and sale of the eighty acres of land herein involved for an agreed price of $1600, to be paid upon delivery of merchantable title; that shortly thereafter the parties, together with others, went to the office of Ross McIntosh, an attorney, and arranged with' him to handle the details of the transfer and left with him the purchase money which the attorney was to use to pay the balance on a contract by which Syrup had purchased this and other lands and to otherwise attend to the details of the sale and transfer. William Henry Syrup met accidental death on July 27, 1951. The court further found that shortly after the oral agreement had been made Stanley Pitcher went into possession and proceeded to make certain improvements on the land by grubbing trees and brush and breaking and tilling and that the possession was taken with the knowledge and consent of William Henry Syrup and that the purchase price of $1,600 is fair and adequate.

Pursuant to the court’s findings of fact and conclusions of law an equivocal judgment was entered decreeing specific performance against the appellants and Lloyd Syrup as administrator requiring them

“as the situation may require to perform a certain contract wherein and whereby William Henry Syrup, deceased, agreed to sell to Stanley Pitcher and Stanley Pitcher agreed to buy from said William Henry Syrup certain lands situated in the County of Pembina and State of North Dakota, * * * ”

for an agreed price of $1,600, payable upon delivery of merchantable title. The judgment further provided:

“that the Court retain jurisdiction in order to do equity between the parties and to make any supplemental orders or decrees that may be necessary including reservation of the right to amend this decree as to matters of costs or damages as equity may require.”

The administrator and the other heirs of William Henry Syrup appeal from the judgment and demand a trial anew in the supreme court.

No new pleadings were filed in the district court. The case appears to have been tried in that court on the petition of Stanley Pitcher in the county court for specific performance and the specifications contained in the notice of appeal to the district court.

We have two statutes bearing upon the issues, the pertinent parts of which are as follows:

Section 9-0604, NDRC 1943: “The following contracts are invalid, unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged, or by his agent: * * *
“4. An agreement for the leasing for a longer period than one year, or for the sale, of real property, or of an interest therein. Such agreement, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing subscribed by the party sought to be charged.”
Section 47-1001, NDRC 1943: “An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law or by an instrument in writing, subscribed by the party disposing of the same or by his agent thereunto authorized by writing. This does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.”

Under the provisions of Section 9-0604, supra, certain oral contracts are declared to be invalid. This means that they are wholly void. Brey v. Tvedt, 74 N. D. 192, 21 N.W.2d 49; Baird v. Elliott, 63 N.D. 738, 249 N.W. 894, 91 A.L.R. 1274; Fried v. Lonski, 48 N.D. 1023, 188 N.W. 582; Weber v. Bader, 42 N.D. 142, 172 N.W. 72. South Dakota has given the same construction to a similar statute. Reedy v. Ebsen, 60 S.D. 1, 242 N.W. 592.

Stanley Pitcher has assumed the position of plaintiff in this proceeding and has sought the intervention of equity to afford him relief which he would not otherwise be able to obtain because of the statute of frauds. One who seeks to have a contract specifically performed has the burden of proof. Before the court can afford him relief the terms of the contract upon which he relies, which are essential and material to a decree to specific performance, must be shown to be clear and definite. 49 Am.Jur., Specific Performance, Section 22; 81 C.J.S., Specific Performance, § 35. Where the plaintiff seeks to avoid the impact of the statute of frauds because of partial performance, “The contract must possess all the elements and features necessary to the specific enforcement of any agreement, except the written memorandum required by the statute.” Pomeroy’s Equity Jurisprudence, 5th Ed., Section 1409.

“The contract must be fully made and completed in every respect except for the writing required by the statute, in order to be enforceable on the ground of part performance.” 49 Am. Jur., Statute of Frauds, Section 423.

These rules require us to first consider the evidence with respect to the oral contract under which Stanley Pitcher asks the court to compel the representatives of the William Syrup estate to deed the land in controversy in order to determine whether, aside from the statute of frauds, a specifically enforceable contract has been shown.

On June 1, 1951, William Syrup was the purchaser under a contract with the State Land Department of the State of North Dakota of the Southeast Quarter of Section 16, Township 162, Range 56, Pembina County. On that date in order to get a patent to this land the purchaser would have had to have paid to the land department $1,542.35. During the month of June some negotiations were had between William Syrup, Stanley Pitcher, and A. C. McCurdy concerning the purchase by Pitcher of the East Half of the quarter section covered by the state land contract. At that time the land in controversy was in the possession of Stanley Pitcher’s father who was using it as a pasture under an agreement whereby the Syrups used, in exchange, a tract of land belonging to the elder Pitcher.

On June 26, 1951, William Syrup, Stanley Pitcher, and A. C. McCurdy appeared at the office of Mr. Ross McIntosh, an attorney. Mr. McIntosh was McCurdy’s attorney. He never represented Syrup at any time. McCurdy and his attorney were witnesses for Stanley Pitcher.

McCurdy testified that he asked McIntosh to take charge of the legal matters connected with the transfer of the land; that Stanley Pitcher was getting the land; and that McCurdy was furnishing money in the sum of $1,600 in full payment. Mc-Curdy made out a check payable to Mr. McIntosh in the sum of $1,600. At some subsequent time and at the direction of Mr. McCurdy, Mr. McIntosh wrote on one corner of the check “For purchase price Ei/⅞ SE% 16-162-56 Pembina Co. N Dak.” Syrup agreed to return later with his wife and execute a deed. Syrup never returned and a month later was accidentally killed. No deed was ever prepared. According to the testimony of Mr. McIntosh, McCurdy was to initially get the land. The deed was to be taken in McCurdy’s name for his protection. Pitcher was to have the land. It does not appear from whom he was to get title or by what type of contract or conveyance.

On June 27, 1951, Mr. McIntosh wrote to the state land department advising that William Syrup desired to pay off the land contract and stating:

“I have sufficient money in my hands to pay the amount due on the contract, but it is contingent on Mr. Syrup giving good title to eighty acres of the land to a purchaser.”

He asked the land department to forward a deed and instructions. The land department replied on June 28, refusing to send the deed and stating that the money must be in the hands of the department before a deed would be sent out. On July 26, 1951, the day before Syrup’s death, McIntosh addressed a letter to him as follows:

“If you and your wife will come in I will fix up a deed to Bert McCurdy and then I will send the money in to the State Land department and secure a deed to you from them.”

This letter was received by the Syrup family after William Syrup’s death. Mrs. Syrup testified that she did not want to sell the land and would not sign a deed to it.

In 65 A.L.R. on page 102 we find an annotation which says:

“Courts of law will grant relief in damages for the breach of many agreements which would not be regarded in equity as sufficiently definite and certain to warrant a decree for their specific performance. In this respect a greater degree of certainty is required in the terms of a contract which is to be specifically enforced in equity than is necessary in one which is to be the basis of an action at law for damages, since an action at law is founded on mere nonperformance by the defendant, and this negative act may often be established without determining all the terms of the contract ■ with exactness. On the other hand, a suit in equity is wholly an affirmative proceeding, its object being to procure a performance by the defendant specifically, and this requires a clear and precise understanding of the terms of the contract, for they must be clear and definite before the performance thereof can be decreed.”

A great many cases are cited under this annotation, including Beebe v. Hanson, 40 N.D. 559, 169 N.W. 31, and Paul v. Leutz, 48 N.D. 1121, 188 N.W. 1022.

“In order to be enforceable in equity there must have been a clear, mutual understanding, and a positive assent on both sides as to the terms of the contract; i. e., there must be a complete contract, finally concluded and agreed upon.” Pollak v. Roberts, 45 N.D. 150, 176 N.W. 957, 958.

In this case the contract is oral. But that fact does not excuse uncertainty or ambiguity. In order to entitle the vendee to specific performance the contract must, aside from the statute of frauds, be established with the same certainty that would be required if it 'had been in writing. The vendee ha? proceeded and the judgment appealed from was entered on the theory that Stanley Pitcher purchased from William Syrup eighty acres of land, tendered the purchase price, and partly performed the contract to the extent that equity would decree the title to be conveyed to him. The evidence which he -produced is ambiguous and uncertain with respect to what the parties agreed to do. The record indicates that there was some preliminary discussion and perhaps a tentative agreement regarding the sale and purchase of the property. According to McCurdy and the attorney in whose office the final conference was had, McCurdy was financing the transaction and title was to be taken by him. He does not appear to have been a party to a contract with Syrup and is not a party to this action. Any judgment the court might render would have no binding effect on McCurdy. McCurdy produced a check for $1,600 which he turned over to his own attorney. Title to the land was in the State of North Dakota and presumably still is. The attorney still has the money. It is not under the control of the court or anyone over whom the court has jurisdiction in this action. There has been no payment or tender of the purchase price or any part thereof. The judgment that was entered herein is itself indicative of the uncertainty that surrounds the transaction between the parties. In addition to the parts of the judgment already quoted, it provides:

“that said administrator and appellants may use whatever method may most expediently and conveniently accomplish the results in the performance of the aforesaid contract, so long as no rights of the respondent are impaired or delayed; that if the said appellants do not forthwith proceed to the use of such alternative method of performance then County Court of Pembina County is hereby directed to make an order commanding the administrator of the above-named decedent’s estate to convey the described lands to the respondent pursuant to his rights as determined herein and to take and receive the aforesaid purchase price into said estate in accordance with law and said administrator shall do what may be needful in connection with such proceedings.”

We have reached the conclusion that Stanley Pitcher has failed to establish a contract upon which he is entitled to a decree of specific performance with that degree of certainty which the law of equity requires.

The briefs of both parties have been largely devoted to a discussion of the question of whether or not there has been a sufficient part performance of the alleged oral contract to take the case out of the statute of frauds. Since the facts involved in determining this question may have at least an incidental bearing on the fundamental question of the existence of an oral contract, we deem it proper to discuss Stanley Pitcher’s claim of part performance.

He cites Mitchell v. Knudtson Land Co., 19 N.D. 736, 124 N.W. 946, and Heuer v. Heuer, 64 N.D. 497, 253 N.W. 856, 858. In the latter case it is said:

“Where a vendee is placed in possession of land under a contract of sale, makes valuable improvements, and pays part of the purchase price, the fact that the requirements of the statute of frauds were not complied with in making the contract will not defeat an action for the specific performance thereof.”

We have already determined that the money in the hands of the attorney for A. C. McCurdy does not constitute a payment of the purchase price or any part thereof. However, we do not believe that part payment of the purchase price is always an indispensable element of part performance of an oral contract. Where a purchaser takes possession under an oral contract for the sale of land with the consent of the vendor and while in such possession makes valuable and lasting improvements on the premises in reliance on the contract, there is a sufficient part performance to take the case out of the statute of frauds, although no part of the purchase price be paid. American Law of Property, Section 11.9; 49 Am.Jur., Statute of Frauds, Section 449. The burden is on the vendee who seeks to invoke this rule to clearly establish that he took possession pursuant to the terms of the contract and that permanent and valuable improvements were made in reliance upon it.

Stanley Pitcher testified that about two weeks after the meeting in Mr. McIntosh’s office he started working on the land. The work consisted of clearing off brush and shrubs and breaking. This work continued for about three weeks. In all, about fifteen acres were broken up, about half before and half after the death of Mr. Syrup. Pitcher does not contend that the oral contract provided when possession should be given. As far as this record shows he entered into possession entirely upon his own initiative. It should also be noted that at the time he entered upon the land his father was in possession as a tenant under an exchange arrangement with Syrup. Syrup was not in possession and as far as this record shows had no right to yield possession until the termination of the tenancy of the elder Pitcher or with his consent. There is no evidence on this point. Stanley Pitcher does contend, however, that the evidence shows that William Syrup knew that he had gone into possession of the land and acquiesced therein. About a week before Syrup’s death he went to where Stanley Pitcher was working on the land and stayed for about five minutes. Evidence of that conversation is not available because William Syrup is dead and Stanley Pitcher is not a competent witness under the provisions of Section 31-0103, NDRC 1943. There is testimony by other members of the Pitcher family as to statements made by Syrup indicating that he knew that Stanley was doing some breaking on the land. When all the evidence is considered it is probable that William Syrup knew that Stanley Pitcher had started to work on the premises which had theretofore been in the possession of his father and that Syrup failed to object.

We now turn to the evidence of improvements that resulted from Stanley’s labor. At the time of Syrup’s death from seven to ten acres had been broken on this eighty acre tract. A similar amount of work was done after Syrup’s death. The evidence does not show what happened after that. We do not know how long Stanley Pitcher’s possession continued, to whom, if anyone, it was surrendered, or who was in possession of the premises at the time of trial. As far as the evidence shows the land that was broken up was never farmed. There is no evidence of the value of the work performed by Stanley Pitcher or that it resulted in the permanent improvement of the premises or in any way increased the value thereof.

In The Henry S. Grinde Corp. v. Klindworth, 77 N.D. 597, 44 N.W.2d 417, 424, we said:

“Improvements made on land, in order to constitute part performance of an oral contract for its sale, have to be valuable, substantial and permanent.”

Assuming that William Syrup acquiesced in the possession of Stanley Pitcher, the improvements claimed by the vendee fail to meet this test. The part performance of the vendee was not sufficient to warrant specific performance of an oral contract for the sale of land. The judgment appealed from is reversed.

BURKE, C. J., and SATHRE and JOHNSON, JJ., concur.

GRIMSON, Judge

(dissenting).

The district court in the case at bar made the following finding of fact:

“That during the month of June 1951, the respondent, Stanley Pitcher, and one William Henry Syrup, now deceased, made and entered into an oral agreement for the purchase and sale of certain real estate situated in the County of Pembina and State of North Dakota, (describing the same) for an agreed price of $1600.00 to be paid by the buyer to the seller upon delivery of merchantable title. That shortly thereafter the parties, together with others went to the office of one Ross McIntosh, an attorney in the City of Cavalier in the aforesaid county and state, and there arranged with him to handle the details of the transfer and left with said attorney the purchase money, said attorney to use said money to pay the balance of a purchase contract on the land sold (and other lands) and otherwise attend to details of the sale and transfer.”

We have repeatedly held that the findings of the trial court are entitled to appreciable weight. Gunsch v. Gunsch, N.D., 67 N.W.2d 311, 326, and cases cited. To my mind there is sufficient evidence to support that finding.

Stanley Pitcher, the petitioner and respondent in the instant case claims that he made an oral agreement with William Syrup for the purchase of a certain 80 acres of land in Pembina County for $1,600 cash and seeks specific performance of that agreement. The petitioner was handicapped in the presentation of this evidence by the fact that William Syrup died before the contract was completely executed. Petitioner, therefore, could not testify to the conversation actually had between them. Several witnesses, however, testified that Syrup had told them that he had sold his land to Pitcher. While those witnesses were related to Pitcher the credibility was for the district court. Then after that original agreement Stanley Pitcher secured the promise of A. C. McCurdy for a loan to finance the deal. Thereafter William Syrup, Stanley Pitcher and A. C. McCurdy appeared in the office of Ross McIntosh, an attorney at Cavalier. It appears from the testimony that the talk there confirmed this oral agreement already had.

The arrangements made at that conference were for the purpose of carrying out the oral agreement for sale and purchase between Syrup and Pitcher already had. Syrup had a contract with the State Land Department for the purchase of 160 acres of land of which the 80 acres involved were a part. He showed a statement that he owed $1,542.35 on the contract. Mc-Curdy then placed the $1,600 Pitcher was to pay for the 80 acres in trust with Ross McIntosh for the double purpose of paying up Syrup’s contract with the state to clear Syrup’s title and simultaneously to pay Syrup for the 80 acres thereof that Pitcher had bought from Syrup. That would both clear Syrup’s title and pay him off according to the oral agreement. McIntosh was agreed upon to carry that out. He accepted the assignment.

McIntosh testifies on direct examination:

“Q. — Anything further said by Mr. Syrup or Mr. McCurdy in your office at that time? A. — Well, Mr. McCurdy gave me a check for $1600.00.
“Q. — Examining check which is Exhibit ‘A,’ did you have that in your possession? A. — That was delivered to me by Mr. A. C. McCurdy.
“Q. — At that same time of the transaction with Mr. Syrup? A. — Yes.
******
“Q. — This was given to y'ou in trust ? A. — Yes.
“Q. — Under what conditions was that given to you in trust? A. — I was to clear the land deal up and secure good title to it.
******
“Q. — Mr. McIntosh, you got the money on that matter, what did you do with the money? A. — I deposited it in the Farmers & Merchants Bank of Cavalier at that time in trust.
“Q. — And you still have control over it? A. — Yes.”
Re-cross Examination
“Q. — If no conveyance was had to whom will you return this money, Mr. McIntosh?”
Objection overruled.
“A. — That is what I was thinking, it would be on the determination of the Court.
« * * * ^he c0urt: Does he know to whom he will return it? A. — No I don’t. It is in trust.
“Q. — Whom is it in trust to ? A. — It is just in trust, on trust account. I am going to hold it there until I have reasonable ground on which to return it to someone entitled to it.
“Q. — To whom will you convey it if there is no determination of that? A. — I am waiting for a determination of this action.
******
“A. — I said I would hold this money • until the final determination of this action before disposing of it.
“Q.- — Assuming that the final determination of this action if there is to he no conveyance by the Syrup Estate, then what will you do with the money ?
“Objection overruled. A. — I presume I will return that to where it came from.
“Q. — Where did it come from ? A.— A. C. McCurdy.”

I think a fair inference from the testimony of that conference in the office of McIntosh, and all the circumstances shown in evidence, is that McCurdy placed that $1,600 with McIntosh for the benefit of Pitcher to enable him to carry out his oral agreement to purchase that particular land. By McCurdy’s instructions McIntosh wrote on the check, “For purchase price E% SE/^ 16 — 162—56, Pembina County, N. D.” McCurdy reserved no control over the money but directed what it should be used for. To finance that purchase Pitcher had asked McCurdy’s help. To work out a system for doing that was the purpose of the conference.

“Generally, intention to create a trust may be determined by construction of and inference from what the trustor has said or done, the nature of a transaction, and surrounding circumstances.” 54 Am.Jur.Trusts, Sec. 53, p. 62.
“Physical delivery of subject matter of a trust to the trustee, with sufficient indication of intention to create the trust, suffices as a complete and present disposition of property to establish the trust. An express trust exists by inference where money or property is delivered by one person to another to be held or paid over by the latter for a certain purpose or generally for the benefit of the former or a third person.” 54 Am.Jur.Trusts, Sec. 62, p. 70.

To my mind the evidence clearly warrants the holding that an express trust was formed for the purpose of carrying out the oral agreement between Syrup and Pitcher for the sale and purchase of the land. The trust was established by McCurdy for Pitcher as beneficiary. McIntosh accepted the trusteeship.

Sec. 59-0104, NDRC 1943 provides that:

“An express trust is created as to the trustor and beneficiary by any words or acts of the trustor indicating with reasonable certainty: ' ■
“1. An intention on the part of the trustor to create a trust; and
“2. The subject, purpose, and beneficiary of the trust.
It is created as .to the trustee by any words or acts of his indicating with reasonable certainty:
“1. His acceptance of the trust or his acknowledgment made upon sufficient consideration of its existence; and
“2. The subject, purpose, and beneficiary of the trust.”

McCurdy’s intention to create a trust and McIntosh’s acceptance of this fund as a trust for the benefit of Pitcher is further shown by the fact that McIntosh has retained it all .of this time. He says he will hold it “until final determination of this action.” He can do that because legal title to the. trust is in the trustee.

“The historic and universal rule, basic to the concept, origin, growth and scope of equity jurisdiction, is that a trustee is vested with a legal, as distinguishable from an equitable estate, which legal estate equity recognizes but compels to be used by the trustee in accordance with the terms of the trust and for the benefit of all beneficiaries, present and future.” 54 Am.Jur.Trusts, Sec. 96, p. 89. See also Sec. 59-0201, NDRC 1943.

Mr. McIntosh is holding that money subject to the purpose of the trust. He has notified the State Land Department thereof. If the decision of the district court were affirmed and specific performance of the land contract between Pitcher and Syrup is decreed, McIntosh must use that trust fund in carrying out that contract. He is" ready to do that. Because of the trust arrangement McCurdy has no right to prevent that and he has not tried to do so. Not until the contract was found un-enforcible so that it becomes impossible to carry out the object of the trust has McIntosh any right to let McCurdy have that money back. Not till then is the trust extinguished. Sec. 59-0217, NDRC 1943.

There is some suggestion in the testimony that the final deed from Syrup was to go to A. C. McCurdy. That, however, is explained by McIntosh’s testimony when he says:

“This money was paid to me by A. C. McCurdy for the benefit of Stanley Pitcher. It was A. C. McCurdy’s money. I don’t assume A. C. McCurdy was giving out the money without security — either he expected security in the way of trust deed or in the way of a mortgage.”

The fact that McCurdy wanted security from Pitcher on that land, whether by deed or mortgage, for the advancement of the $1,600 has nothing to do with the original oral agreement between Pitcher and Syrup. It does not interfere with that in any way. Whatever arrangements were made in that regard were between McCurdy and Pitcher and agreed to by Syrup who said he would return with his wife and sign the deed. The court asked McIntosh: “Was the matter clear to you, Mr. McIntosh, that Pitcher was to have the land? Ans. It was.” The arrangement assures the carrying out of Pitcher’s oral agreement with Syrup if there is partial performance sufficient to take it out of the statute of frauds.

It was claimed by the appellant that there was not sufficient part performance of the contract by Pitcher. Aside from the arrangements for payment as heretofore set out, the evidence shows that Stanley Pitcher, shortly after the meeting in McIntosh’s office took possession of the premises and commenced the work of improvement on them. It is true that the premises were leased by Pitcher’s father for pasture and had been for some years. Pitcher’s actions in entering upon the premises, however, could not be said to be under that lease. He entered upon the land for the purpose of making permanent improvements thereon for agriculture, not for pasturage. Further, the testimony shows that William Syrup came to Stanley Pitcher while he was working on the premises and had a conversation with him. That conversation Pitcher could not repeat but other witnesses testified that William Syrup told them he had been upon the premises and had seen the work Stanley was doing and expressed his satisfaction and approval thereof. The evidence shows that Stanley Pitcher borrowed a tractor and machinery from McCurdy for the purpose of clearing and breaking the land involved. There is evidence showing that the land was covered with poplar, oak and willow trees besides the ordinary scrub. Stanley would have to uproot trees, move them off and prepare the land for breaking which would also involve the removal of stones. The representative of the Soil Conservation Project testified that he made an aerial survey of the premises and found approximately 16 acres of breaking and that he saw felled trees. Stanley testified that he broke between 15 and 20 acres. That work is permanent improvement on the land. It covers almost one-fourth of the whole area involved. Pitcher’s doing that work clearly indicates he was taking possession under the agreement of purchase and performing work of considerable value to the premises. Such possession was with the consent and approval of Syrup. There is sufficient showing of work to take the oral contract out of the statute of frauds.

Appellant cites Grinde Corporation v. Klindworth, 77 N.D. 597, 44 N.W.2d 417, as authority for his claim of insufficient part performance. The work done on the premises in that case, which was held insufficient to take the matter out of the statute of frauds, consisted of paying for the plowing and removing the rocks from a tract of 400 acres of land and seeding 200 -of them to rye. As there were no alterations in the physical features of the land and the improvements were in harmony with the owner’s plan for farming the land that did not indicate any permanent improvement and differentiates the case from the one at bar.

Appellant finally claims that the petitioner has an adequate remedy at law. On that I believe the evidence shows that an action for damages would not be adequate. Real estate is involved and the permanent improvement thereon. While evidence •could be offered on the cost of the work •done, the value of the improvement to the land is more difficult. In the Am.Law Institute, Restatement of the Law on Contracts, Section 360, p. 642, the principle is laid down that damages are regarded :as inadequate remedy for the breach of .a promise to transfer any interest in specific land. In the comment on that it is ■there said:

“The remedy in money damages for breach of a contract for the transfer of a specific tract of land is regarded as inadequate without regard to quantity, quality, or location. A specific tract is unique and impossible of duplication by the use of any amount of money. Specific performance is available to enforce a contract the purpose of which is the transfer of any recognized interest in land to the purchaser, even though it is less than a fee simple.”

I think the judgment of the district court •should be affirmed.


author: SATHRE, Judge.

text:
    John W. SMITH, Plaintiff and Appellant, v. Bert L. COOK; Robert H. Tuttle; C. L. Stephens; Bessie A. McDonough, Bessie A. Porger; First State Bank of White Earth, North Dakota, (closed), L. R. Baird, Receiver, Bismarck, North Dakota; American State Bank of Burlington, North Dakota, a corporation; Olla H. Smith; George Grandin; Mary A. Rahtge; Hattie C. Rahtge; Mary A. Curl; Reuben C. Curl; Robert A. Feidler; Rosa A. Wright; Richard R. Wright; C. H. F. Bohstedt; K. C. Wright; Kenmare Hard Coal Company, a corporation; William M. Vance; H. B. Adams; Robert L. Olbing; W. E. Arnot; Kenmare Hard Coal Brick and Tile Company, a corporation; Jesse Van Valkenberg; Horican State Bank, a corporation; Dakota Trust Company, a corporation; A. L. Netcher, Receiver of Northern and Dakota Trust Company, of Fargo, North Dakota, a corporation; D. D. Palmer, Trustee; J. A. Wright; Frederick E. Nelson; Louise Goldstein; Rosa Goldstein; George A Tiller; Irene Tiller; Jourgen Olson and Company, a corporation; Jourgen Olson, John Werberg and Clara Olson; Directors of Jourgen Olson and Company, a corporation; dissolved; Henriatta Mather; John Leduc; Anna Leduc; Martin Walser; Flickertail Mutual Coal Company, a corporation; The American Coal Briquetting Company, a corporation; Walter H. Fisher; C. N. Foncanon; and G. N. Law, Directors of American Coal Briquetting Company, dissolved; James Dolan; Robert L. Albans; Clint Smith; and all other persons unknown claiming any estate or interest in or lien or encumbrance upon the real property described in the Complaint, Defendants and Respondents.
    No. 7498.
    Supreme Court of North Dakota.
    Nov. 21, 1955.

      Hyland,. Foster & Conmy, Bismarck, for plaintiff and appellant.
    Walter O. Burk, Williston, for defendants and respondents.
   SATHRE, Judge.

This is an appeal from an order of the district court of Mountrail County granting the application of the defendant vacating a default judgment and for leave to interpose answer. The action was brought by the plaintiff to determine adverse claims and to quiet title in the plaintiffs to the following described real estate situated in the county of Mountrail and State of North Dakota, to-wit:

Southeast quarter of the southwest quarter (SE14SW14) West half of the southwest quarter (W%SWi4) of section thirty five- (35) in Township One hundred fifty seven (157) north of range Ninety four west of the 5th P. M. and also the South half of the northwest quarter (S½NWl4) and South half of the northeast quarter (S½NEl4) and Lots one (1), two (2) and four (4) all in section five (5) and also Lot four (4) in section four (4) all in Township one hundred fifty six (156) North of Range ninety four (94) west of the 5th P.' M.

The complaint is in the statutory form. There is a long list of defendants in this action. A large number of them were nonresidents whose places of residence and post office addresses were not known, and they were served by publication of the summons. Service was had upon the other defendants by personal service or by admission of service. All of the defendants defaulted and judgment was entered in favor of the plaintiff quieting the title in him on the 14th day of February 1952. Three of the defendants Robert PI. Tuttle, C. L. Stephens and Robert H. Tuttle as Trustee of the American Coal Briquetting Company, made a motion to vacate the judgment and for leave to answer. The motion to vacate the judgment was heard before the Hon. Geo. A. McGee, one of the district Judges of the Fifth Judicial District of Mountrail County on the 13th day of February 1952. Judge McGee died before handing down a decision in the matter, and it was stipulated by the parties by their respective attorneys that the entire file in said action be forwarded to the Hon. Eugene A. Burdick, one of the Judges of the said district court together with all exhibits introduced upon the motion of the defendants before the late Hon. Geo. A. McGee, also all stenographic records and memorandum which may be 'in the possession of the clerk of the district court or the official court reporter who had taken the hearing upon said motion; also all briefs of counsel both of plaintiff and defendants. It was stipulated by the parties to the action by their respective attórneys that they waived any and all right thereafter to object to or claim error by reason of the submission of the above entitled action for a decision upon the record made before the Hon. Geo. A. McGee and they agreed to be bound by the order entered by the Hon. Eugene A. Bur-dick to the same extent and in the same manner as though said motion had been personally tried before him in open court.

The defendants appearing in this proceeding filed affidavits of merits in support of their motion to vacate the judgment and they also filed proposed answers to the complaint. Counter affidavits were filed by the plaintiff resisting the motion to vacate the judgment.

After hearing on the motion Judge Bur-dick made an order vacating the default judgment and permitting the said defendants to interpose answers to the complaint. From this order the plaintiff appealed.

From the records before us it appears that the plaintiff had acquired the real estate in question from Mountrail County and that Mountrail County had acquired title to the property through tax deed proceedings. In their affidavits of merits and in their proposed answers the defendants specifically deny that the plaintiff is the owner in fee simple of the property described in the complaint. They allege on the contrary that they are the owners of the oil, gas and mineral rights of the premises described in the complaint. Their claim of ownership of the oil, gas and minerals is based upon a lease covering the premises described in the complaint which lease it is alleged was recorded in the office of the register of deeds of Mountrail County, North Dakota on April 8, 1926 at 9:00 A. M., in Book 234, page 97 and that said oil, and gas lease is still in force and effect. The affidavits and the proposed answers allege that the claim of the plaintiff in and to the real property described in the complaint is based upon a purported tax deed from Mountrail County but that said tax deed is wholly defective and void insofar as it purports to affect the oil, gas and minerals of the lands described in the complaint for the reason that the oil, gas and mineral rights in and to said premises were severed by the former owners of said premises in fee simple and that it became the duty of the county auditor, register of deeds and county assessors to assess for taxes, if any there be, the oil, gas and mineral rights separately from the surface or overlying strata of said premises. It is further alleged that the tax deed relied upon by the plaintiff did not affect or cover the rights of these answering defendants for the reason that no notice of expiration or the period of redemption was ever given or served upon them and that the mineral rights of the oil and gas lease were never taxed or assessed and that therefore Moun-trail County, North Dakota had no jurisdiction to take any tax title against said oil and gas rights.

The defendants do not challenge the regularity of the tax deed proceedings of Mountrail County, except insofar as it is alleged that notice of expiration of period of redemption was not served upon them.

The affidavit of Walter O. Burk, Willis-ton, North Dakota one of the attorneys for the defendants states that he has examined the records in the office of the register of deeds, in Mountrail County, North Dakota and that he believes and has advised his clients that they have a good and meritorious defense to plaintiff’s cause of action; that he believes that the said tax title proceedings had by Mountrail County, North Dakota are null and void as to C. L. Stephens, Robert H. Tuttle and American Coal Briquetting Company for the reason that the mineral interests in the lands involved were severed long prior to the commencement of the tax title proceedings by Mountrail County covering the premises described in plaintiff’s complaint and that said mineral interests were never taxed and consequently any tax title proceedings as far as said mineral interests were concerned were null and void.

Atwood Cranston, of Minneapolis, Minnesota, one of the attorneys for the defendants states in his affidavit that he has examined the Statutes of the State of North Dakota and the law affecting the claim of the defendants C. L. Stephens and Robert H. Tuttle and the American Coal Briquett-ing Company, and from his research he is of the opinion that the oil, gas and mineral rights underlying the premises described in the complaint were severed from the overlying strata. He states further that he has caused the records of Mountrail County, North Dakota to be investigated and ■found that the oil, gas and mineral rights were never taxed as provided by Sections 57-0224 and 57-0225, NDRC 1943. The affiant states further that he has stated to his clients that he believes that any tax title proceedings which may have been had affecting such premises are wholly void and defective insofar as the same may affect the oil, gas and mineral rights of the defendants.

The affidavit of merits of Robert H. Tuttle as trustee of the American Coal Briquetting Company states in substance that the American Coal Briquetting Company was and is a South Dakota corporation and that the period for which it was incorporated expired on December 11, 1936. On December 11, 1936 the affiant was president and treasurer of the said corporation in addition to being a director and manager; that he was a stockholder of said company and as such he was trustee for the creditors and stockholders and members of said corporation and is empowered by the statutes of South Dakota and North Dakota to act as such trustee. That he makes this affidavit on behalf of and as trustee of said corporation, the American Coal and Briquetting Company, which corporation has never been formally dissolved. The affidavit further states that the American Coal Briquetting Company by its officers and agents filed with the register of deeds of Mountrail County, notices that the premises involved in this action has been severed as to the ownership of oil, gas and minerals below the surface and that the American Coal Briquetting Company was the owner of the oil, gas and mineral rights; that the main stockholder of the American Coal Briquetting Company, one Joseph A. Wright, died on or about December 28, 1928 and his estate was probated in the probate court of Hennepin County, Minnesota; that none of the heirs of said estate have ever received any notice of tax deed proceedings nor was service of the summons and complaint made upon them. The affiant further states that on or about February 18, 1926 the American Coal Bri-quetting Company executed an oil and gas lease covering the premises involved in this action, to Robert H. Tuttle and C. L. Stephens; that said lease was duly recorded in the office of the register of deeds, Mountrail County, North Dakota; that by its terms the American Coal Briquetting Company reserved a substantial interest in the oil, gas and minerals in the premises involved in this action; that the American Coal Briquetting Company has not been actively engaged in business for many years and to the best of affiant’s knowledge no person connected with the American Coal Briquetting Company herein had ever received notice of any tax deed proceedings involving the property described in the complaint, but that if the American Coal Briquetting Company or its directors had been served with notice of tax deed proceedings affiant, as trustee and manager of said company, would not have thought that the interest of the American Coal Briquet-ting Company in said premises was affected thereby because the mineral interests had been severed, and the Statutes of North Dakota require, according to affiant’s understanding, that the oil, gas and minerals be assessed separately from the surface of the land; that no assessment had ever been made by the county officials of Mountrail County. It is further stated in the affidavit that it was not until recently that affiant was advised by his attorney that it was necessary to make application to the courts for relief from any judgment entered affecting the premises described in the complaint in this action; that he has requested his attorney, Atwood Cranston of Minneapolis, Minnesota, to confer with other attorneys in North Dakota to determine what action should be taken for the protection of the interests of the American Coal Briquetting Company and that he has been advised that he should apply to the courts for an order vacating and setting aside the judgment rendered in this action so as to permit the American Coal Briquet-ting Company, by affiant as trustee, to take such action on such terms as the court may deem just. The affidavit of merits made by the defendant Robert H. Tuttle for himself individually recites in substance that on or about the 18th day of February, 1926 the affiant and C. L. Stephens became the owners of the oil, gas and mineral lease of the premises described in the complaint; that said lease was recorded on April 8, 1926 at 9:00 A.M., in Book 234 page 97 in the office of the register of deeds of Mountrail County, North Dakota, and that said oil and gas lease is still in full force and effect; that the affiant and C. L. Stephens on or about July 14, 1952 assigned an undivided one-half of their interest in and to said oil and gas lease to one Harry L. Frankhanel and one Harold J. Ellsworth of Minneapolis, Minnesota; that the lessor in said oil and gas lease to affiant and C. L. Stephens was the American Coal and Briquetting Company, a South Dakota corporation, which had been qualified to do business in the State of North Dakota. The affidavit further states that an investigation of the records in the office of the register of deeds in and for Mountrail County, North Dakota discloses that the American Coal Briquetting Company and Joseph A. Wright caused to be filed notices and affidavits in the office of the register of deeds in said Mountrail County that the oil, gas and mineral rights underlying the surface of the premises described in the complaint herein had been severed from the ownership of the overlying strata. Affiant, C. L. Stephens, and Joseph A. Wright were the last directors of the American Coal Briquetting Company, and affiant has knowledge of the affairs of said company; that the American Coal Briquetting Company and all of its officers and directors never received any tax notice of taxes due by reason of ownership of oil, gas and minerals pursuant to said lease; that affiant has caused the records of Mountrail County, North Dakota to be searched, and is informed and therefore states that the premises described in the aboyé lease were never listed for taxation as to oil, gas and other minerals as required by Section 57-0224, NDRC 1943, nor did the county auditor of Mountrail County, North Dakota furnish the assessor a description of the premises included in said lease informing the assessor that the title to the oil, gas and minerals was not in the person holding the title or fee to the overlying strata. It is further stated that this affiant is informed by his attorneys, and therefore states that the oil, gas and other mineral rights underlying the premises in said lease were never taxed by the county of Mountrail and that the taxes assessed against said premises were only levied against the overlying strata of land above the oil, gas and mineral rights. Affiant further states that he has fully and completely disclosed to his attorney, Atwood Cranston, Minneapolis, Minnesota, all of the facts of the case of which affiant has any knowledge; that said attorney Atwood Cranston has conferred with Walter O. Burk, an attorney at Wil-liston, North Dakota, and that said Atwood Cranston has advised affiant that he and C. L. Stephens and the American Coal Briquetting Company have a good, substantial and valid defense on the merits to said action to quiet title. The affiant further states that this affidavit is made for the purpose of obtaining an order from the above named court, vacating and setting aside the judgment in said action, and permitting affiant C. L. Stephens and American Coal Briquetting Company to defend this action on the merits on such terms as may be just, and to serve and file their proposed answer attached hereto. The proposed answer of the defendants Robert H. Tuttle and C. L. Stephens denies specifically that the plaintiff is the owner in fee simple of the property described in the complaint and alleges on the contrary that these answering defendants are the owners of the oil, gas and mineral rights of the premises described therein, by virtue of an oil, gas and mineral lease covering the premises described in said entitled action, which lease was recorded in the office of the register of deeds of Mountrail County, North Dakota, on April 8, 1926 at 9:00 A.M. in Book 234, page 97, and that said oil and gas lease is still in force and effect.

The answer further alleges that the claim of .the plaintiff to said described premises is based on a purported tax deed but that said tax deed is wholly defective and void insofar as it may purport to affect the oil, gas and mineral rights of the lands described in the complaint for the reason that the oil, gas and mineral rights in and to said premises were severed by the former owners of said premises in fee simple, and that the tax deed relied upon by the plaintiff did not affect the rights of these defendants. The answer also alleges that no notice of expiration of the period of redemption was ever given or served upon the answering defendants and that the mineral rights and the oil and gas lease were never taxed or assessed and that therefore Mountrail County had no jurisdiction to take tax title to said oil and gas rights.

Judgment is then demanded that the American Coal Briquetting Company be decreed to be the owner of the mineral rights covering the property described in the complaint, subject to an oil and gas lease executed by the American Coal Briquetting Company to these answering defendants. The proposed answer of Robert H. Tuttle as trustee of the American Coal Briquetting Company is practically identical with the proposed answer of Robert H. Tuttle and C. L. Stephens.

The plaintiff contends that the district court erred in vacating the default judgment and in permitting the defendants to interpose their answers.

The first contention of the plaintiff is that the notice of motion made by the defendants is defective for the reason that it prays for an order “vacating” the default judgment. The plaintiff seeks to draw a distinction between “opening” a judgment and “vacating” a judgment. He contends that a motion to set aside or strike off a judgment must be on the ground of irregularities appearing on the face of the record, and that a motion to open a judgment is an appeal to the equitable powers of the court to let the defendant interpose a defense. It is then argued that the instant case is not one where equitable principles are involved. He then quotes Section 28-2901, NDRC 1943 which reads as follows:

“The court, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, may relieve a party from a judgment, order, or other proceeding taken, against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding.”

The default judgment in the instant case was rendered in an action brought to determine adverse claims and quieting title in the plaintiff. The statute applicable is therefore Section 32-1713, NDRC 1943 which provides:

“A defendant in an action to determine adverse claims, proceeded against by name or as an unknown party, or his representative, on application and sufficient cause shown at any time 'before trial, must be allowed to defend on such terms as may be just, and any such defendant or his representatives upon good cause shown, and on such terms as may be just, may be allowed to defend after trial and within one year after the rendition of judgment therein, but not otherwise.”

This is a special statute having application to actions brought to determine adverse claims of defendants proceeded against by name or as unknown parties. In the case of Hart v. Hone, 57 N.D. 590, 223 N.W. 346, 348, this court said:

“Section 8156 (now Section 32-1713) * * * applies to all cases in which judgments have been rendered by default in statutory actions to quiet title. • It applies as well where a named defendant has been personally served with process as where an unknown defendant . has been served .by publication.”

Since the judgment which it is sought to vacate was entered in an action to determine adverse claims, we think it is immaterial whether the application prayed for an order vacating the judgment or for reopening the judgment. Plaintiff’s contention is therefore without merit.

Plaintiff next contends that the affidavits of merits of the defendants, and the proposed answers do not state facts sufficient to constitute a defense. It is asserted that the affidavits of merits and the answers are mere legal conclusions without any supporting facts. In support of this contention is cited Hart v. Hone, supra; Lumsden v. Michael, N.D., 63 N.W.2d 403; and Huwe v. Singer, N.D., 63 N.W.2d 399.

The facts in the cases cited differ materially from the facts set out in the affidavits and in the proposed answers of the defendants in the instant case. In the cases of Huwe v. Singer and Lumsden v. Michael, supra, the affidavits of merits were made by the attorney for the applicants. He had no personal knowledge of the facts in the case and the affidavits were made on information and belief. No reason was assigned why the applicants themselves did not make the affidavits. The attempted showing of diligence in making the application after discovering the judgment was based on the information from one of the parties.

We have quoted in detail from the affidavits of the defendants in the instant case. They make positive statements of facts from information obtained from examination of the records of Mountrail County. Specific reference is made to an oil, gas and mineral lease to the defendants covering the land involved in this action, giving the date of filing same for record in Mount-rail County. It is asserted that they were not served with notice of the expiration of the period of redemption in connection with the tax deed proceedings had by Mountrail County, and that no service was made upon them of the summons and complaint in this action. It is further stated that the defendants have fully and completely disclosed to their attorneys all of the facts of the case of which they had any knowledge. The answers of the defendants allege the facts which have been set out in the affidavits.

On application for relief from a default judgment the court will consider every fact and circumstance that has any reasonable bearing on the question whether sufficient cause has been shown why the judgment should be vacated. In such cases a party seeking to be relieved from a default judgment has the burden of showing good cause why relief should be granted.

“It is primarily a question for the trial court to determine whether the defendant has shown good cause why the judgment should be set aside and he should be permitted to defend. One of the fundamental requirements is that he make a showing that he has a meritorious defense.” Hart v. Hone, 57 N.D. 590, 223 N.W. 346, 348.

The district judge who heard the motion to vacate the default judgment was of the opinion that the defendants had made sufficient showing to entitle them to relief and made his order vacating the judgment.

The defendants made their application within one year after the rendition of the default judgment as required by Section 32-1713, NDRC 1943. We are of the opinion that the defendants have alleged facts in their affidavits of merits and in their- answers sufficient if proved to constitute a valid defense to plaintiff’s complaint.

The order of the district court vacating the judgment is affirmed.

BURKE, C. J., and MORRIS, GRI1VL" SON, and JOHNSON, JJ., concur.


text:
    Dan GUNSCH and John Gunsch, Plaintiffs and Appellants, v. Tony GUNSCH, Leona Gunsch, David Gunsch, Fred Bauer, Arthur Bieber, and John O. Lyngstad, Commissioner of University & School Lands for the State of North Dakota and Albert Bauman, Guardian of Tony Gunsch, an incompetent person, Defendants and Respondents.
    No. 7438.
    Supreme Court of North Dakota.
    Nov. 23, 1955.
    Rehearing Denied Dec. 19, 1955.
    See also 71 N.W.2d 770.

      J. K. Murray, Bismarck, for plaintiffs and appellants^
    Floyd B. Sperry, Golden Valley, for Tony Gunsch, Leona Gunsch, David Gunsch, Fred Bauer, and Arthur Bieber, defendants and respondents.
    John Adams, Asst. Atty. Gen., Bismarck, for Commissioner of University and School Lands, defendant and respondent.
   JOHNSON, Judge.

The main issues in this action were determined by this court in Gunsch v. Gunsch, N.D., 67 N.W.2d 311, 328. The case was remanded to the trial court for the purpose of taking additional testimony on two issues: (1) to procure an accounting of one-third of the 1951 crop on the “section” belonging to Tony Gunsch, and (2) to determine the value of the use of the machinery of Tony Gunsch, of which the plaintiffs had possession since the spring of 1951 under assertion of ownership based on an alleged oral contract to purchase. This is a sequel to the above cited opinion.

In the above-opinion we said :

“Based upon our finding that the parties never reached an agreement of sale and purchase of the property involved in this case the status of the parties and the property is as follows: * * * (5) Tony Gunsch is the owner of the machinery taken by the plaintiffs and entitled to the immediate possession thereof and the reasonable value of the use of such machinery ¿ * *

We also said:

“This case is remanded' to the district court with instructions to permit additional testimony to be presented on the issues mentioned, by both sides, after which the district court will make further findings and cause the additional record to be settled, certified and returned to this court with the record that is now remanded for further proceedings in conformity with this opinion.” (Emphasis supplied.)

The trial court has taken further testimony and has filed here its additional findings and conclusions of law on the two questions involved in the remand. It found that Tony Gunsch was entitled to judgment against the plaintiffs in this action for 500 bushels of grain at $2 a bushel in the sum of $1,000, together with interest thereon at the rate of four per cent per annum from January 1, 1952, making a total of $1,131.78. This finding and conclusion of law thereon was based on testimony that some of the grain from the “State land” had been mingled with the grain from the “section”. Grain amounting to 1494 bushels from the “section” and the “State land” had been stored in Tony’s name in an elevator at Zap, North Dakota, by the plaintiffs. The testimony indicates that all of Tony’s share of the grain for 1951 from the “section” was included in this storage ticket. This grain was decreed to'Leona Gunsch in the divorce action as a part of her interest in Tony Gunsch’s property. But it ’developed upon the taking of the additional testimony on this remand that at the prior hearing when this case was first before the trial court that the -plaintiffs had failed to disclose that 500 bushels of grain which belonged to Tony had not been accounted for. It appears clear, however, from the testimony that the 500 bushels of grain came from the “State land”. There is no testimony in the record that the grain was raised on the “section”. Plaintiffs readily admit that no mention was made of the 500 bushels of grain coming from the “State land” at the trial in 1953. It is now their contention that the 500 bushels of grain from the “State land”, which they failed to mention at the time of the original trial was sold by them and that they gave the proceeds to Tony Gunsch in cash. . They have no documentary evidence to support this testimony. But it is undisputed that if any grain has not been accounted for by Dan and John Gunsch, and which belongs to Tony, it amounts to 500 bushels and came from crops raised on the “State land”. There is no satisfactory evidence in this record to show that the plaintiffs are indebted to Tony Gunsch for $1,131.78 for 500 bushels of grain raised on the “section”.

An accounting of grain other than grain raised on the “section” was not within the terms of the mandate of this court.

In a case appealed to the supreme court for trial de novo, it is the duty of the lower court, on the remand of the record to it, to comply with the mandate of the supreme court. Colter v. Dill, 49 N.D. 902, 193 N.W. 662. See also St. Paul Trust & Savings Bank v. Olson, 52 N.D. 315, 202 N.W. 472.

We now come to the value of the use of the machinery in the possession of the plaintiffs belonging to Tony. The trial court determined that the value of the use of the machinery amounted to $795 per year and granted judgment for the value of its use for the years 1951 to 1954 inclusive at that rate. There was objection to the foundation of the evidence upon which this value was based. The reception of the evidence of the value of the use of the machinery in this case was based on substantially the same foundation as was approved in Tooz v. Tooz, 76 N.D. 732, 39 N.W.2d 257, 259.

' The machinery in question was held by the plaintiffs under a claim of title. The plaintiffs did’ not have title thereto, and never have- had. Tony Gunsch has been deprived of the possession and use of this machinery for four years. He is entitled to recover as damages the value of the use of the machinery during the period that it was held by the plaintiffs. The machinery had useable value. Tooz v. Tooz, supra. It is contended, 'however, that it is not the value of the use to Tony Gunsch that constitutes the basis for recovery of damages, but rather the use to which the plaintiffs put the machinery. It is clearly the value of the use to Tony which constitutes the basis for his right of recovery, of damages and not the use to which the plaintiffs in this action have put the machinery during the time Tony has been deprived of it. Tooz v. Tooz, supra.

The value of the use of the machinery to Tony Gunsch was the proper basis for the determination of the damages. From the testimony of several witnesses who testified, the trial court accepted the lowest estimates made. The evidence of the value of the use of the machinery was'competent.

Final judgment on all the issues in this action has not yet been entered in view of our remand.

Objection was made at the hearing involving this remand to the appearance of Mr. Sperry, as attorney for Tony Gunsch. Tony Gunsch, since the trial of the action, has been declared incompetent and a guardian has been appointed. The guardian consented in open court at the time of the 'hearing in this matter to the appearance of Mr. Sperry as Tony Gunsch’s counsel.

An attack is made upon the validity of the appointment of Tony Gunsch’s general guardian. This attack is clearly outside of the issues involved in the hearing on the remand under the mandate of this court. It amounts to a collateral attack upon the order appointing Tony Gunsch’s guardian and letters of guardianship issued pursuant thereto by the prob'ate 'court of Mercer County, North Dakota. Shane v. Peoples, 25 N.D. 188, 141, N.W. 737. The, validity of the. appointment of the guardian of Tony Gunsch was not before the court in this matter, and the objection to the validity of the appointment was properly overruled by the -trial 'court.

The trial court is directed to modify its additional findings and conclusions in this action to eliminate therefrom the' sum of $1,131.78. Except as herein modified the additional findings and conclusions' thereon are affirmed. Upon entry of final judgment in this action it will include a recovery for $3,180 for the use of Tony’s machinery wrongfully held by the plaintiffs,

BURKE, C. J., and SATHRE, MORRIS, and GRIMSON, JJ., concur.