author: MORRIS, Chief Justice.

text:
    BARTELL v. MORKEN et al.
    No. 7412.
    Supreme Court of North Dakota.
    July 1, 1954.
    Rehearing Denied July 23, 1954.

      Q. R. Schulte, Stanley, for plaintiff and appellant.
    Earl Walter, Bowbells, for defendant and respondent, Selmer Morken.
    Swendseid & Bekken, Stanley, and Cox, Cox, Pearce & Engebretson, Bismarck, for defendant and respondent, Stanolind Oil & Gas Co.
   MORRIS, Chief Justice.

The plaintiff, Bertha L. Bartell, brings this action in statutory form, Section 32-1704, NDRC 1943, to determine adverse claims to and recover the value of the use and occupation of Lots 3, 4, 5, and 6 of Section 6, Township 158, Range 91 in Mountrail County.

The defendant, Selmer Morken, by separate amended answer, denies the allegations of the complaint and with more particularity than we need set forth here alleges that Mountrail County obtained a tax deed to the premises involved on May 21, 1938, which was recorded in the office of the register of deeds of that county on July 25, 1938, and that on March 4, 1946, the county deeded the land to the defendant, Selmer Morken, which deed was recorded on March 6, 1946.

Morken further alleges that on August 8, 1951, in an action in which he was plaintiff and Niels C. Larsen, his unknown heirs or devisees if deceased, and all other persons unknown claiming estate or interest in or lien or encumbrance upon the property described in the complaint, were defendants, a judgment was entered decreeing Selmer Morken to be the owner in fee simple and absolute of the premises herein involved and that a certified copy of that judgment was recorded in the office of the register of deeds of Mountrail County on August 8, 1951.

As a further defense Selmer Morken alleges that he and his grantor, Mountrail County, have been in open, adverse, and undisputed possession of the land since May 21, 1938, and have paid all taxes legally assessed and levied against it and that the plaintiff is now barred from asserting her claim by the provisions of Section 47-0603, NDRC 1943, as amended by Chapter 276, SLND 1951, and by the provisions of our residuary statute of limitations, Section 28-0122, NDRC 1943.

The defendant, Stanolind Oil and Gas Company, a corporation, by its amended separate answer, sets forth by way of counterclaim that it is the assignee of the lessee of an oil and gas lease executed by Selmer Morken, as lessor, to Jeff Hawks, as lessee, on May 23, 1949, which is now in full force and effect. This defendant also sets forth substantially the same matters as does the answer of Selmer Morken with respect to the tax deed of Mountrail County, the deed to Selmer Morken, the previous judgment determining him to be the owner of the fee simple title to the land, adverse possession, and statutes of limitation. Both defendants pray that their titles and interests in the land be quieted as against the claims of the plaintiff. The plaintiff, by appropriate reply, has denied the new matter contained in the answer and counterclaim of the defendant Stanolind Oil and Gas Company.

Upon order of the trial court judgment was entered decreeing that Selmer Morken is the owner of and entitled to immediate possession of the property involved and that the Stanolind Oil and Gas Company has a valid and existing oil and gas lease for the purpose of exploring and producing oil and gas upon the premises. The plaintiff appeals td this court and demands a trial de novo.

On December 31, 1929, Niels C. Larsen of Viborg, South Dakota, became the owner of the premises involved in this action by virtue of a warranty deed executed by the then record owner of the land. On December 8, 1931, the property was sold to Mountrail County at tax sale for nonpayment of taxes for the year 1930. On May 21, 1938, a tax deed was issued to Mountrail County. This tax deed was void for various reasons, among them being that the notice of expiration of the period of redemption stated the amount of taxes due in one lump sum and included therein taxes which had been delinquent for less than three years prior to the service of the notice. Grandin v. Gardiner, N.D., 63 N.W. 2d 128. Mountrail County nevertheless went into possession and leased the land to the defendant Selmer Morken. On March 4, 1946, the county executed and delivered a tax deed to Morken, who continued in possession. On May 4, 1951, Selmer Mor-ken instituted an action to determine adverse claims to the property against “Niels C. Larsen, his unknown heirs or devisees if deceased; and all other persons unknown claiming estate or interest in or lien or encumbrance upon the property described in the Complaint herein, Defendants.” On August 8, 1951, judgment was entered in that action in the district court of Mountrail County determining

“That the Plaintiff, Selmer Morken, is owner in fee simple- of the premises hereinafter described, and his right end interest '»i said premises is hereby declared and established as owner in fee simple and absolute.
“That the interests of all Defendants, hereinabove described, are hereby quieted, and they are forever debarred from any and all claims of right or title to the said premises, or lien or encumbrance upon said premises, which they had precedent to the beginning of the action; that the same applies to anyone claiming title through any of the said Defendants, or any person unknown claiming estate or interest in or lien or encumbrance upon the property, before the commencement of this action, which was as of the 4th of May, 1951.”

The present action of Bertha L. Bartell to determine adverse claims to the same land is a collateral attack upon the former judgment. 31 Am.Jur., Judgments, Section 616; 44 Am.Jur., Quieting Title, Section 97; Johnson v. Ranum, 62 N.D. 607, 244 N.W. 642; Kalb v. German Savings and Loan Society, 25 Wash. 349, 65 P. 559, 87 Am.St.Rep. 757.

The district court is a court of general jurisdiction arid it is presumed that its judgments are regularly and validly entered. Olson v. Donnelly, 70 N.D. 370, 294 N.W. 666. However, if from the record upon which the judgment is based it affirmatively appears that the court had no jurisdiction of the controversy or of the defendant, the judgment is void and may be collaterally attacked or impeached. Black on Judgments, 2nd Ed., Section 278; Freeman on Judgments, 5th Ed., Section 322; 31 Am.Jur., Judgments, Section 604 ; 49 C.J.S., Judgments, § 425.

The plaintiff in this action asserts that the judgment quieting title in Selmer Morken is void because of the failure of the court to obtain jurisdiction over the persons of the defendants in that action. Service on the defendants was obtained by publication and the plaintiff invokes the rule that proceedings for securing service by publication must strictly comply with statutory provisions. Coman v. Williams, 78 N.D. 560, 50 N.W.2d 494; Johnson v. Ranum, 62 N.D. 607, 244 N.W. 642; Paul v. Green, 49 N.D. 319, 191 N.W. 469; Roberts v. Enderlin Investment Co., 21 N.D. 594, 132 N.W. 145; Atwood v. Tucker, 26 N.D. 622, 145 N.W. 587, 51 L.R.A., N.S., 597; Johnson v. Engelhard; 45 N.D. 11, 176 N.W. 134.

This being an attack on the judgment rendered in favor of Selmer Mor-ken on August 8, 1951, in an action to determine adverse claims to the property involved in this action, we examine the record upon which that judgment was rendered and the statutes pertaining thereto, in order to ascertain whether the defects pointed out by this plaintiff render that judgment absolutely void. One known defendant was named in the summons and complaint, Niels C. Larsen, who then was the record owner of the land according to the records in the office of the register of deeds of Mountrail County. All other persons were named as “his unknown heirs or devisees if deceased; and all other persons unknown claiming estate or interest in or lien or encumbrance upon the property described in the Complaint * * The plaintiff, Bertha L. Bartell, has filed in the present action her own affidavit and that of her brother setting forth that they are children of Niels C. Larsen who died on May 7, 1931, at Viborg, South Dakota. The purpose of filing these affidavits undoubtedly was to establish that Bertha L. Bartell was an heir of the record title owner, Niels C. Larsen, and therefore entitled to maintain the present action to quiet title. Section 30-2401, NDRC 1943; Belakjon v. Hilstad, 76 N.D. 298, 35 N.W.2d 637. These affidavits are important for another reason. They establish that Niels C. Larsen died some twenty years before the action in which the judgment was rendered was started by Selmer Morken. Title to the property here involved passed to the heirs of Niels C. Larsen upon his death. Belakjon v. Hilstad, supra; Hoffman v. Hoffman’s Heirs, 73 N.D. 637, 17 N.W.2d 903. At the time Selmer Morken started his action to determine adverse claims there was no such person as Niels C. Larsen that could be made a party to the action, although he appeared to be the owner of the land according to the records. His title had passed some twenty years before to his heirs and at the time the action was brought that title was held by the heirs or their successors in interest. The appearance of the name of Niels C. Larsen as a party defendant could add or detract nothing with respect to the validity •of the service by publication. The appearance of his name was a complete nullity. Any defects in the procedure attempting to secure service upon Niels C. Larsen which are applicable exclusively to him can have no effect on the validity of the service upon other persons as unknown defendants. See Howell v. Garton, 82 Kan. 495, 108 P. 844. We would observe, however, that the name of Niels C. Larsen, the former owner, appearing upon the summons and complaint does add to the identification of the title to the land and may tend to attract the notice of interested persons, although it has no bearing upon the legal sufficiency of the proceedings.

There is but one issue that can be raised by the plaintiff in this collateral attack upon the former judgment and that is whether valid service was obtained upon the heirs of Niels C. Larsen as unknown defendants. This being an action to determine adverse claims, we turn to Section 32-1707, NDRC 1943 to ascertain how such service may be obtained. This section provides :

"Service of the summons in an action may be had upon all unknown persons defendant by publication in the manner provided by law for service by publication upon defendants whose residence is unknown, but as to such unknown persons defendant the affidavit for publication shall be required to state in substance the following facts: That the interests of such unknown persons defendant in the land described- in the complaint are not shown of record in the office of the register of deeds, the clerk of the district court, or the county auditor of the county in which such land lies, and the affiant does not know and is unable to ascertain the names, residences, or post office addresses of any of the persons who are proceeded against as unknown persons defendant. The affidavit or complaint shall show further that the relief sought in the action consists wholly or partly in excluding the defendants from any interest in or lien upon specific real property in this state, and where jurisdiction is sought to be obtained against unknown persons under the provisions of this section the summons shall state where the complaint is or will be filed, and there shall be subjoined to the summons as published a notice signed by the plaintiff’s attorney containing a description of the land to which such action relates. Unknown corporations claiming interests are included within the word ‘persons’ as used in this chapter.”

The affidavit for publication states in substance that it is made by Earl Walter, attorney for the plaintiff Selmer Morken; that the interests of “the persons unknown respondents herein” in the land described in the complaint are not shown of record in the offices of the register of deeds, clerk of the district court, or county auditor of Mountrail County; that the affiant made personal search in those offices for the purpose of ascertaining such interests and that the affiant does not know and is unable to ascertain names, residences, or post office addresses of any of the persons who are proceeded against “as unknown respondents.” The complaint which is attached to and made a part of the affidavit shows that the relief sought in the action consists in excluding the defendants from any lien or interest in the property described in the complaint, which is the property involved in the present action. Also attached is a summons in the usual form, to which is appended a “Notice of No Personal Claim” which states that:

“Notice is hereby given that the . above entitled action is brought for the purpose of quieting title in and to the Plaintiff in the following described real estate, situated in Mountrail County, North Dakota, to-wit: (describing the property) and that no personal claim is made against you or either of you.”

Aside from using the term “respondents” instead of “defendants,” which we do not regard as a jurisdictional defect, the affidavit for publication conforms to the requirements of Section 32M707, NDRC 1943 with respect to unknown defendants and if properly -filed constitutes a jurisdictional basis for the publication of summons.

The next jurisdictional challenge rests upon the execution and filing of the affidavit of publication. The record shows that the summons was dated at Bowbells, North Dakota, May 4, 1951, as was the complaint. On the same date the complaint was verified before a notary public in Burke County. The affidavit was sworn to before a notary public in Burke County on May 4, 1951. All of these instruments were filed in the office of the clerk of the district court of Mountrail County on May 7, 1951. The summons, to which is attached the notice of no personal claim, was published in the Mountrail County Promoter, a weekly newspaper published in the city of Stanley in Mountrail County, on May 10,. May 17, and May 24, 1951. Section 32-1707 NDRC, supra, requires that service-of the summons be had upon unknown defendants “by publication in the manner provided by law for service by publication upon defendants whose residence is unknown, * * *.” The publication of the summons complies with the provisions of Section 28-0622, NDRC 1953 Supp. Section 28-0621, NDRC 1943 provides that:

“Before service of the summons by publication is authorized in any case, there shall be filed with the clerk of the district court of the county in which the action is commenced a verified complaint setting forth a cause of action in favor of the plaintiff and against the defendant and also an affidavit stating one of the grounds for service by publication specified in section 28-0620 and also stating the-place of defendant’s residence if known to the affiant, and if not known,, stating that fact, and also stating, unless the complaint shows: * * *
“3. That the relief sought in the-action consists wholly or partly in-excluding the defendant from any interest in or lien upon specific real or personal property within this state,, or in enforcing, regulating, defining,, or limiting such interest or lien in-favor of either party to the action or otherwise affects the title to such property; * * *.”

The affidavit in question complies with-this section insofar as it requires that the-affidavit be filed before publication of the summons and there is also filed therewith a verified complaint setting forth a cause of action in favor of the plaintiff and against the unknown defendants. Krumenacker v. Andis, 38 N.D. 500, 165 N.W. 524. The affidavit also states that the-residences of the unknown defendants are-not known to the affiant, which would. seem a logical consequence since the defendants themselves are unknown. The complaint that was filed shows that the requirements with regard to the nature of the cause of action have been met. There remains with respect to this section the question of whether the affidavit for publication must also state “one of the grounds for service by publication specified in section 28-0620” in order to secure valid service by publication on unknown persons defendant. This question we answer in the negative for these reasons: Section 28-0620 sets forth four grounds for obtaining service by publication, all of which pertain to known defendants. A careful reading of these grounds discloses that none of them apply to unknown persons defendant. Section 32-1707 sets forth the grounds for service by publication on unknown persons defendant. The affidavit in question meets the requirements of this section and as to such persons it is sufficient in form.

We also point out in answer to a further objection by the plaintiff as to the validity of these proceedings that there is no requirement as to unknown parties defendant that the sheriff make a return stating that after diligent inquiry for the purpose of serving the summons he is unable to make personal service upon such defendants. The absurdity of such a return is apparent. To require the sheriff to make a return in a civil action showing that he has made diligent search and inquiry for persons unknown and whose interests are unknown would be a completely idle and unfruitful act and one which the law does not contemplate.

It is further and emphatically asserted that the affidavit of publication wholly- fails as a basis for a valid publication of the summons in this case because it was sworn to on May 4, 1951, and not filed in the office of the clerk of the district court until three days later, May 7, which was also the date of the filing of the complaint. In Johnson v. Ranum, 62 N.D. 607, 244 N.W. 642, 643, this court used language that would support the plaintiff’s contention. It is there said:

“The statute contemplates an affidavit made at or after the time of the filing of the verified complaint.”

The affidavit in that case was made seventeen days before the institution of the action and the filing of the complaint and it was there held that such an affidavit does not confer jurisdiction upon the court. Our statutes are silent as to when the affidavit may be sworn to. It is clear that the affidavit must reflect the conditions and must be evidence of the facts that exist at the time of filing the complaint and that an intervening period of seventeen days between the oath and the filing would render the affidavit ineffective as evidence of the facts on the date of filing. On the other hand, we do not believe that the statute contemplates that the acts of swearing to the affidavit and filing the complaint should be coincident. This is not the only court in which this problem has arisen. A number of cases bearing upon the subject have been collected in a note found in 47 L.R.A.,N.S., 499. The validity of such affidavit as a jurisdictional basis for service by publication when made prior to the time of filing or prior to the issuance of an order for publication as is required in some states is generally held to depend upon whether the time which has elapsed is under the circumstances reasonable. Among the circumstances to be considered is whether the af-fiant lives in the same town or county where the affidavit is to be filed or to be presented to the court. Campbell v. McCahan, 41 Ill. 45. Crombie v. Little, 47 Minn. 581, 50 N.W. 823, 824, was an action to determine the validity of the foreclosure of a mortgage. It was there held that the fact that the affidavit of publication was sworn to six days before the complaint was filed and thirteen days before the first publication was not material. The court said:

“If it be true, as defendants claim, that the affidavit must be sworn to the same day on which the action is commenced, then this must be on the very day of the first publication of the summons; for, except for the purposes of preventing the statute of limitations from running, an action is commenced "by service of the summons, and not, as counsel assumes and as is the case in some states, by filing the complaint and issuing a summons. * * * The rule contended for would be not •only contrary to the general understanding and practice, but an unreasonable and exceedingly inconvenient one. In the absence of any provision of statute regulating the matter, we apprehend that all that is necessary is that the affidavit be sworn to within such a reasonably brief time before the publication of the summons that no presumption could fairly arise that the state of facts had changed during the period intervening.”

In Leigh v. Green, 62 Neb. 344, 86 N.W. 1093, 1095, 89 Am.St.Rep. 751, the court had before it a challenge to the validity of service by publication in actions to foreclose tax liens. The plaintiff insisted that affidavits for publication were insufficient and the court acquired no jurisdiction because the affidavits were sworn to some two days before the petitions were filed. The court said:

‘‘It is clear that the law must permit some interval to elapse between the making and the filing of the affidavit, because, strictly speaking, the two acts could not be simultaneous. That being true, the only question that can arise is what length of time it will permit to elapse between the two acts. The statute is silent on the subject; hence the inference is warranted that it will permit a reasonable time. Just what will be regarded as a reasonable time this court has not decided. However, in Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W. 151, it was held that an affidavit made one day before the petition was filed was sufficient. But in that case the court expressly dis- . claims any intention' to go beyond the facts, and of holding that an affidavit made several days before the commencement of the action would be sufficient. In our opinion, when the petition is filed within such time after making the affidavit that no presumption could fairly arise that the state of facts had changed in the interval, it is sufficient. Crombie v. Little, 47 Minn. 581, 50 N.W. 823; Snell v. Meservy, 91 Iowa 322, 59 N.W. 32. Applying this rule to the affidavits • in question, we do not believe that any presumption of a change in the state of facts during an interval of two days could fairly arise.”

In Whitney v. Knowlton, 33 Wash. 319, 74 P. 469, a motion was made to vacate a default judgment rendered upon the foreclosure of a tax lien, one of the grounds being that the affidavit for publication of summons had not been filed with the clerk of the court until three days after it had been verified. The court held that the delay was not conclusive against the sufficiency of the service.

In Bancroft’s Code Practice and Remedies, Section 873, it is said:

“The affidavit should speak with reference to conditions as they exist at the time when it is filed or the application for an order for publication is made. Hence it must be presented or filed within a reasonable time after it is made. In no case should the interval between the making and the filing be so long as to destroy the effect of "the affidavit as prima facie evidence of the facts stated and of their existence at the very time the affidavit is sworn to and filed. But jurisdiction attaches although the affidavit is sworn to before the complaint or petition is filed, provided the interval between the two acts is so brief that no presumption can fairly arise of a change in the jurisdictional facts set forth in the affidavit.”

In this case we have an affidavit made by an attorney and an officer of the court in Burke County on May 4. He caused it to be filed in the adjoining county of Mountrail on May 7 as evidence of the facts therein recited at the time of filing. The interval of time was not unreasonable under the circumstances and the affidavit imports verity as of the time it was filed. We cannot say that the interval of three days was sufficient to impugn that verity. The interval does not destroy the effectiveness of the affidavit and render the service by publication and the subsequent judgment based thereon void. It not appearing on the face of this record that the judgment was void, it cannot be attacked collaterally. It is binding on the plaintiff in this action and is a bar to the relief she seeks. That judgment determined defendant Selmer Morken to be the owner of the land and is binding on the court in this action. The judgment appealed from is affirmed.

BURKE, SATHRE and GRIMSON, JJ., concur.

JOHNSON, J., did not participate.


source: Caselaw Access Project

author: BURDICK, District Judge. BURDICK, District Judge.

license: Public Domain

text:
    MEVORAH et al. v. GOODMAN et al.
    No. 7430.
    Supreme Court of North Dakota.
    June 11, 1954.
    Rehearing Denied July 6, 1954.

      J. F. X. Conmy, Fargo, for plaintiff s-respondents.
    Lanier, Lanier & Knox, Aaron Aronson, Fargo, for defendants-appellants.
   BURDICK, District Judge.

On June 23, 1950, the plaintiffs, as purchasers, and the defendants, as sellers, entered into a contract whereby the plaintiffs purchased from the defendants a business known and operated as Irving’s Tractor Lug Company. This business consisted of buying and selling, at wholesale and retail, new, reconditioned, and used parts of tractors and other agricultural implements. The defendants had maintained places of business at Fargo, North Dakota and Portal, North Dakota and Wichita, Kansas, the principal place of business being in Fargo. The consideration for the sale was $100,000, of which $5,000 was paid in cash. Title to the stock of goods, consisting of the inventory of tractor and agricultural implement parts, was reserved to the defendants until payment of the balance of the purchase consideration which was to be paid within three years from June 21, 1950, the date of the promissory note given by the plaintiffs as evidence of balance due on the purchase price.

The contract contained the following pertinent provisions:

A. Sale of Business.

1. The sellers agree to sell and the” purchasers agree to buy the new and reconditioned tractor and agricultural implement parts as listed in the inventory, hereto attached marked Exhibit “A” and made a part hereof. The said stock of parts listed in the, inventory located at Fargo, North Dakota, Portal, North Dakota and Wichita, Kansas. Sale of said items listed on the inventory are pursuant and subject to the conditional sales contract stated hereinafter in this agreement.

2. The sellers hereby sell, transfer and set over to the buyers all catalogs, office supplies and stationery and duplicate parts books of the Irving’s Tractor Lug Company located on or about the premises at •Fargo, North Dakota, Portal, North Dakota and Wichita, Kansas.

3. The sellers further transfer, set over and sell to the buyers the good will and the name Irving’s Tractor Lug Company. From and after the date of this agreement the sellers shall no longer have any right to use the name Irving’s Tractor Lug Company.

D. Conditional Sales Agreement.

1. Title to the stock in trade; that is, the new and reconditioned tractor and agricultural implement parts as listed in .the attached in-entory, Exhibit A, shall be retained in the sellers until the balance of the purchase price represented by the within note (paragraph C herein) has been paid, as hereinafter set forth, provided however, that the purchaser shall have the right to sell the parts listed in the inventory in their regular and ordinary course of business, including foreign experts upon the conditions hereinafter set forth.

7. It is agreed that time is the essence of this contract. Upon default or breach by the purchasers of any of the terms of this agreement, or upon seizure of the property under execution or other legal process, or upon the insolvency or bankruptcy of the purchasers, or either of them, or the assignment by them for the benefit of creditors, or encumbrance, removal or other disposal of said property, or any part thereof, or sale of said property, or any part thereof, except in the regular and ordinary course of business, or; if the purchasers suffer or permit any lien or claim to attach to said property or if the sellers shall, at any time, deem themselves reasonably insecure, the full amount of the indebtedness then remaining unpaid shall at once become due and payable, at the option of the sellers. The sellers, without notice or demand and without legal process, may enter upon the premises where any of said property may be located and may take immediate possession of same and remove the same, as they so desire, using all necessary force to do so (The purchasers hereby waiving all actions for trespass or damage thereby) and retain the same, together with any and all payments previously made by the purchasers by way of liquidated damages^ and Sellers may, at their option, make any disposition of said property that they deem fit and may, with or without notice, sell said property at public or private sale, at which sale the sellers may become a purchaser.

E. General Provisions of Sale.

6. The office and warehouse equipment of the Irving’s Tractor Lug Company is neither sold nor rented to the buyers. The buyers, however, have the privilege of using the warehouse equipment free of charge for three years or until the note is paid in full. The buyers have the further privilege of using the office equipment needed in their business, such as typewriters, adding machines, desks, files and dictaphone for the same period of time. Any index cards or mailing lists on the premises may be used by the buyers but they are not sold or rented. Buyers are permitted to make copies of the mailing lists or index cards. The buyers agree to return all office equipment, warehouse equipment, etc. covered by this paragraph to the sellers in as good condition as received at the end of three years or sooner if the note is earlier paid.

8. Restrictions on the buyers in the operation of their business is for the sellers security only, and upon payment of the indebtedness represented by the within note all restrictions shall cease, and the sellers shall have no right to interfere with the buyers in the conduct of their business.

F. Lease Provisions.

1. The sellers agree and do by these presents lease to the buyers the premises occupied by Irving’s Tractor Lug Company at Fargo, North Dakota and Portal, North Dakota, for the terms and rentals set forth hereinafter. The premises leased are described as follows:

(a) Portal, North Dakota:

(b) Fargo, North Dakota

2. The leased premised include, yard, buildings and warehouse.

3. The term of the lease'shall be for five (5) years from and after the date that the buyers take possession of the premises. The rental shall be $350.00 per month for the Fargo, North Dakota premises and $150.00 for the Portal, North Dakota premises.

7. The sellers shall have free use of part of the office space and yard space on the leased premises as needed for the conduct of their used farm implement and tractor parts business.

9. In the event that the buyers default in payment of the note pursuant to the conditions of the conditional sales contract, the lease shall be cancelled on the Fargo and Portal, North Dakota premises. Further the ownership of the lease on the Wichita, Kansas premises shall revert to the sellers.

H. Sellers not to Compete.

I. The sellers agree that they will not engage, directly or indirectly, in the retail •or wholesale business of the sale of new tractor and farm implement parts in the buyers normal trade territory of Wichita, Kansas, Portal, North Dakota, or Fargo, North Dakota, nor engage in foreign export of said items for a period of IS years from the date hereof.

2. If, and at such time as the buyers may purchase the sellers’ entire stock of “usable” used parts in accordance with the buyers option stated herein, the sellers 'after said sale hereby agree that they will not engage directly or indirectly, in the retail or wholesale business of the sale of used and reconditioned tractor and farm implement parts in the buyers normal trade territory of Wichita, Kansas, Portal, North Dakota, or Fargo, North Dakota, nor engage in the foreign export of said items, for a period of 15 years after said sale.

3. The sellers agree that they shall not conduct any other business in the name of Irving’s Tractor Lug Company.

I. It is agreed among the parties hereto that mutual cooperation is required to protect the sellers’ security and the buyers’ interest in the business and to carry out the exclusive sales agreement covering used and reconditioned parts. The parties therefore individually agree and pledge themselves to cooperate and diligently work to accomplish the purposes of this agreement.

The plaintiffs took possession of the business July 1, 1950, and operated the business until February 5, 1951, when the defendants seized possession of the place of business in Fargo, North Dakota, and the supplies, goods, and equipment therein, and served written notice on the plaintiffs declaring that the contract for sale was breached, the sums paid thereon forfeited for liquidated damages, and the lease provisions incorporated in the contract terminated. At the time of seizure the unpaid balance of the purchase price was $83,000.

On the afternoon of February 5, 1951, immediately following the seizure by the defendants, the plaintiffs applied to the district court for an order pursuant to the provisions of Sec. 28-2908, NDRC 1943.

The defendants did not commence any action to foreclose the conditional sale provisions of the contract dated June 23, 1950. Thereupon, the plaintiffs commenced the instant action to obtain substantially the same relief sought in the order to show cause and temporary restraining order. The order to show cause and a temporary restraining order were issued by Honorable John C. Pollock, District Judge, returnable February 27, 1951, restraining the defendants from using the trade name, Irving’s Tractor Lug Company, and from in any manner interfering with the plaintiffs’ right to receive mail addressed to Irving’s Tractor Lug Company, and from interfering in any way with the plaintiffs’ use of the special bank account in the name of Irving’s Tractor Lug Company in the Dakota National Bank in Fargo, North Dakota. The order further directed and ordered the defendants to foreclose the conditional sale contract dated June 23, 1950 between'the parties, by action in the District Court of Cass County, North Dakota, to enable the plaintiffs to assert their defenses and counterclaim thereto, as provided by Sec. 28-2908, NDRC 1943.

On March 14, 1951, after the hearing of the order to show cause, the district court, Honorable John C. Pollock, District Judge presiding, issued its order continuing the temporary restraining order. The district court, deeming this order not sufficiently definite, issued a further order March 19, 1951 restraining and enjoining the defendants, pending the trial and determination of this action upon its merits from selling the property covered ‘ by the conditional sale provisions of the contract dated June 23, 1950, and restraining and enjoining the defendants, pending the trial of this action upon its merits, from using the trade name of Irving’s Tractor Lug Company and from in any way interfering with the plaintiffs’ possession and use of the mail addressed to Irving’s Tractor Lug Company. This order further directed the defendants “to take all proceedings with reference to the foreclosure of said conditional sales contract in the District Court of Cass County, -North Dakota, and that no further undertaking need be filed herein by the plaintiffs.”

On or about April 18, 1951 the defendants served and filed their answer and counterclaim to the complaint. The answer was essentially a general denial of the allegations of the complaint. The counterclaim was essentially an action to foreclose the conditional sale provisions of the contract made June 23, 1950 by reason of certain alleged defaults of the plaintiffs. The reply of the plaintiffs is essentially a general denial of the allegations set forth in the counterclaim, except that the plaintiffs allege that the defendants have assigned the sale contract together with the promissory note given pursuant thereto to one Nathan S. Kahn who has not been made a party to this action.

Thereafter the plaintiff commenced two civil actions against the defendants arising out of this transaction. The first action was one for damages for breach of contract. This action was considered by this Court upon appeal from the judgment in Mevorah v. Goodman, 79 N.D. -, 57 N.W.2d 600. Upon that appeal the judgment appealed from was reversed and a new trial was granted. The second action was one to recover damages for conversion of personal property. This action was also considered by this Court upon appeal from the judgment in Mevorah v. Goodman, rehearing denied Oct. 30, 1953, N.D., 60 N.W.2d 581. Upon this appeal the judgment appealed from was modified as to the first cause of action and reversed and a new trial ordered on the second and fourth causes of action. The third cause of action was dismissed upon stipulation of the parties. The causes of action upon which new trials were granted are still pending.

The instant action was submitted to Honorable O. B. Burtness, District Judge, upon a stipulated record in which the court was asked to take judicial notice of the other two pending actions, pursuant to Secs. 31-1001 and 31-1002 NDRC 1943. The pleadings and records, however, in the files of the other two pending actions were not transmitted as a part of the settled statement of the case as the stipulation permitted. The district court made findings of fact, conclusions of law and order for judgment. The conclusions of law made by the trial court were as follows:

“I
“That the seizure and conversion of the property sold conditionally extinguishes the lien of the said sales contract; and that the defendants, by their seizure of the property concerned have at least been paid the entire purchase price.
“II
“That there was no title reserved in the defendants, by the said sales contract, in either the trade name, the mails, or the so-called supplies which included stationery, catalogs et cetera; and the defendants had no title whatsoever in the new merchandise which plaintiffs purchased after taking over the business which was originally sold.
“HI
“That the counter-claim for the foreclosure of the sales contract should be, and is hereby, in all things dismissed with prejudice both for failure of proof and because the lien has been extinguished as a matter of law.
“IV
“That the property right and right of possession of the plaintiffs, in and to the property seized and held by the defendants, does not pass to the defendants until and unless judgment for its conversion is paid and the judgment satisfied.
“V
“That the plaintiffs are entitled to a permanent injunction against the defendants restraining them from using the trade name of Irving’s Tractor Lug Company and also restraining them from interfering in any way with the plaintiff’s possession and use of the mail addressed to Irving’s Catalog Company; the defendants are also enjoined from selling, mortgaging or otherwise disposing of any of the stock of merchandise and other personal property involved in these proceedings until any money judgment obtained by the plaintiffs against the defendants in the conversion action is paid, unless and until the said defendants furnish a satisfactory bond to be approved by the Court to the effect that they will pay any final judgment that may be rendered against them in the pending conversion action, and if such bond is furnished the defendants are to be restrained from selling, mortgaging or otherwise disposing of any of the merchandise involved except in the ordinary course of trade at retail or wholesale.”

Judgment conformable to the foregoing conclusions of law was entered December 8, 1953.

The defendants appeal from the judgment but have not demanded a trial de novo for a review of the entire case in this court. Where trial de novo is not demanded, review by the supreme court as to questions of fact in an action tried to the court without a jury is limited to those specified on which a review is desired. All questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court. Retterath v. Retterath, 76 N.D. 583, 38 N.W.2d 409.

The defendants assign two specifications of error, as follows:

“The Court erred in finding as a matter of fact and law that ‘there was no title reserved by the so-called conditional sales contract in either the trade name or in the so-called supplies which included stationery, catalogs, etc. * * *’
“The Court erred in holding that when the plaintiffs sued for conversion they had not lost the property rights in the merchandise and in holding that title to the goods does not pass to the defendants before there has been a satisfaction of the judgment.”

We shall consider these two specifications together. In essence, defendants contend that all of the property covered by the contract dated June 23, 1950, including the trade name and so-called supplies, were sold conditionally with title reserved to the defendants, and that notwithstanding their conversion of the property that they still retain the legal title. The plaintiffs contend, and the trial court so found, that the défendants, by their seizure and conversion of the property have at least been paid the entire purchase price and that the property in the goods passed by operation of the contract upon such payment of the balance of the purchase consideration. We find it unnecessary to resolve these contentions for the reason that the equitable title — the right to the possession, use and enjoyment of the property contracted for — passed to the plaintiffs as purchasers under the contract upon their taking possession of the business on July 1, 1950. The trial court, in denying the counterclaim of the defendants for the foreclosure of the conditional sale provisions of the contract, necessarily found that the plaintiffs are not in default in the performance of the contract. In any event the defendants have failed to prove an actionable default on the part of the plaintiffs. The plaintiffs, not being in default, are entitled to the possession of the property. See generally 47 Am.Jur., Sales, Sec. 828.

In an action by the purchasers for preventive relief by injunction to restrain the sellers from doing that which ought not to be done, viz.: a wrongful interference with the possession, use and enjoyment of the property contracted for, it is not material whether the legal title — the property in the goods contracted for — is still retained .by the defendants as sellers.

The trial court found that the defendants had usurped the trade name Irving’s Tractor Lug Company and wrongfully interfered with the possession and use of the mail addressed to Irving’s Tractor Lug Company, notwithstanding the provision in the contract dated June 23, 1950 whereby the defendants agreed not to conduct any other business in such name and otherwise pledged their cooperation to the plaintiffs in carrying on the business. This conduct on the part of the defendants constituted a breach of the contract the performance of which could be specifically enforced. Secs. 32-0412 and 32-0413, NDRC 1943. Hanson v. Wirtz, 52 N.D. 604, 204 N.W. 672. See also 28 Am.Jur., Injunctions, Sec. 102 and 4 Pomeroy, Equity Jurisprudence, 5th ed., Sec. 1355.

A final injunction, when authorized, may be granted to restrain the breach of a contract unless it is one the performance of which could not be specifically enforced. Sec. 32-0505, 'NDRC 1943. Otter Tail Power Co. v. Clark, 59 N.D. 320, 229 N.W. 915.

The trial court also enjoined the defendants from selling, mortgaging or otherwise disposing of any of the stock of merchandise and other personal property involved in this action “until any money judgment obtained by the plaintiffs against the defendants in the conversion action is paid, unless and until the said defendants furnish a satisfactory bond to be approved by the Court to the effect that they will pay any final judgment that may be rendered against them in the pending conversion action,’’ in which latter event the defendants were to be restrained from selling, mortgaging or otherwise disposing of any of the merchandise involved except in the ordinary course of trade.

As already noted, the conversion action is still pending. It is contended by the defendants that when a party elects to sue for the conversion of personal property and recovers a judgment for damages he is thereby barred from asserting title to the property converted.

This court has already approved the doctrine that a judgment for conversion of property does not in itself operate to extinguish the owner’s title to the property converted, and that the bar arises only upon payment of the judgment. Gilman v. Township of Gilby, 8 N.D. 627, 80 N.W. 889. See also Restatement, Restitution, Sec. 144 and Schiavo v. Cozzolino, 134 Conn. 388, 57 A.2d 723, 3 A.L.R.2d 214. Clearly, it is not material whether the owner’s title to the property converted is legal or equitable. Clendening v. Hawk, 8 N.D. 419, 79 N.W. 878.

Where purchasers of property under a conditional sale contract seek to follow and reclaim the property or its proceeds, in whole or in part, from those who have wrongfully repossessed it, they do not thereby waive the wrongful taking and may still sue the wrongdoers for damages, applying in reduction thereof the property or proceeds they may have received. Golly v. Northland Elevator Co., 53 N.D. 564, 207 N.W. 438.

A seller of personal property under a conditional sale contract holds the legal title to the goods only as security for the performance of the contract by the buyer and where the seller wrongfully repossesses the property and wrongfully detains it, he is an implied trustee of the property for the purchaser from whom the property was taken. Sec. 59-0106, NDRC 1943. See also 4 Pomeroy Equity Jurisprudence 5th ed., Secs. 1044 and 1053, and Restatement, Restitution, Sec. 128.

A final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant when the obligation arises from a trust. Sec. 32-0504, NDRC 1943.

The temporary restraining order issued by the trial court was issued pursuant to the provisions of Sec. 28-2908, NDRC 1943 which provides as follows:

“When the mortgagee has commenced foreclosure proceedings, or the vendor demands or takes possession of the property covered by the contract, and it shall be made to appear by the affidavit of the mortgagor or vendee, his agent or attorney, to the satisfaction of the judge of the distrct court of the county wherein such property is situated, that the mortgagor or vendee has a legal counterclaim or is entitled to take advantage of the provisions of section 28-2907, or has any other valid defense against the collection of the whole or any part of the amount claimed to be due, such judge, by an order to that effect, may enjoin the mortgagee from foreclosing such mortgage by advertisement, or the vendor from taking possession of or selling such property, and may direct that all further proceedings be had in the district court having jurisdiction of the subject matter. For the purpose of carrying out the provisions of this section, service may be made on the mortgagee or vendor or his attorney or agent. The provisions of this section shall apply to the assignee or transferee of any mortgagee or vendor and to the assignee or successor in interest of the mortgagor or vendee.”

This section has similar counterparts elsewhere in the Code. See Secs. 32-1806, 35-2204, and 35-2302, NDRC 1943. Sec. 5845, Revised Codes of 1899, now Sec. 35-2204, was construed in Scott and Wheeler v. District Court, 15 N.D. 259, 107 N.W. 61, 65. This Court said:

“The law in question, however, does not materially change the previously existing remedies to the detriment of the mortgagee. In the absence of such a law, the mortgagor, if he wished to contest the right of the mortgagee to exercise the power of sale, could seek relief in a suit in equity to enjoin the sale, and obtain an injunction pendente lite. In such a suit, although the position of the parties would be reversed, the issues would be substantially the same as in a suit to foreclose.”

Thus, in the case at bar, the plaintiffs could obtain partial and temporary relief under Sec. 28-2908, NDRC 1943 and also seek the same and other equitable relief in a separate suit and obtain an injunction pendente lite to preserve the status quo pending the determination of another action on the merits.

The granting of a temporary restraining order and a temporary or final injunction, when authorized, is a matter lying wholly within the sound discretion of the trial court. McCann v. Mortgage Bank & Inv. Co., 3 N.D. 172, 54 N.W. 1026; State ex rel. Security Bank v. Buttz, 21 N.D. 540, 131 N.W. 241; Beiseker v. Svendsgaard, 28 N.D. 366, 149 N.W. 352; Lee v. Jordan, 50 N.D. 365, 195 N.W. 660; Gillies v. Radke, 78 N.D. 974, 54 N.W2d 155. The district judge may modify, continue or dissolve an injunction or refuse to do so as well as grant or refuse to grant the injunction in the first instance. His action will not be disturbed unless it appears that in so doing there was an abuse of discretion. Larson v. Jacobson, 54 N.D. 69, 208 NW. 833.

The defendants as appellants have the burden of showing error and establishing affirmatively that the trial court has abused its discretion. First Nat. Bank v. Bremseth, 60 N.D. 401, 234 N.W. 758. This the defendants have failed to do.

While the appellants have not demanded a trial de novo for a review of the entire case, this court, on appeal from the judgment in an action tried without a jury, may review errors appearing on the face of the judgment roll which are assigned and argued by the appellants in their brief. Secs. 28-2012, 28-2707, 28-2728 and 28-2732, NDRC 1943. Wilson v. Kryger, 29 N.D. 28, 149 N.W. 721; Ripplinger v. Otten, 77 N.D. 531, 44 N.W.2d 60. See also First Nat. Bank v. Bremseth, cited supra.

Thus, the appellants assign as error and argue in their brief that the injunction issued by the trial court is invalid for want of an undertaking by the plaintiffs, required by Sec. 32-0605, NDRC 1943, to indemnify the defendants for such damages as they may sustain by reason of the injunction, if the court should finally decide that the plaintiff was not entitled thereto. This contention is without merit for the reason that the plaintiffs, at the inception of this action, did furnish the required written undertaking, unlimited in amount. This undertaking is a part of the judgment roll. Sec. 28-2012, NDRC 1943. By this undertaking the plaintiffs undertook and agreed to pay to the defendants “all damages and costs that may be awarded against them in this action in the event the injunction or temporary restraining order is ultimately determined to have been improperly issued.” The sufficiency of this undertaking has not been challenged.

The appellants not having assigned and argued other error in their brief, the judgment of the district court is affirmed.

MORRIS, C. J., and BURDICK, CRIMSON, SATHRE, and BURKE, JJ., concur.

On Petition for Rehearing.

BURDICK, District Judge.

The appellants have filed a petition for rehearing in which they contend that this court failed to consider “whether or not the conditional sales contract involved herein is a divisible contract whereby title to the merchandise can be sold conditionally and the trade name, ‘Irving’s Tractor Lug Company,’ be sold outright without title reservation.” Counsel ask the court to distinguish this case from Soderstrom v. White, 68 N.D. 293, 279 N.W. 306, 117 A.L.R. 391.

The suggested question presupposes that the determination of title to the property contracted for is vital to the issue. In the main opinion we held that in this action— for preventive relief by injunction to restrain the sellers from wrongful interference with the possession, use, and enjoyment of the property contracted for — it was not material whether the legal title to the property was reserved to the sellers. The sellers have failed to establish any default on the part of the buyers that would entitle the sellers to repossess any of the property, regardless of whether all or part of it was sold outright or by conditional sales contract with title reserved to the sellers. The absence of an actionable default of the buyers in the case at bar distinguishes it from Soderstrom v. White, cited supra.

We adhere to our former opinion.

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

JOHNSON, J., did not participate.


author: BURKE, Judge.

text:
    MAGNUSSON v. KAUFMAN, Jr., et al.
    No. 7388.
    Supreme Court of North Dakota.
    July 1, 1954.
    Cox, Cox, Pearce & Engebretson, Bismarck, for defendants and appellants.
    E. J. Mcllraith, Minot, for plaintiff and respondent.
   BURKE, Judge.

This is an action to cancel a mineral deed executed and delivered by the plaintiff to the defendants Kaufman and Gay. Plaintiff alleged in his complaint that he was induced to execute the mineral deed by the fraud of an agent of Kaufman and Gay and that the description of the land contained in the mineral deed was so uncertain and indefinite that it rendered the deed void. The defendants, Kaufman and Gay in their answer denied the alleged fraud. The defendant, United States Smelting, Refining and Mining Company, in its separate answer alleged that it was a bona fide purchaser from Kaufman and Gay of certain mineral interests in the land. The trial court found in favor of the plaintiff upon all issues and judgment was entered decreeing that the mineral deed in controversy was void and that the United 'States Smelting, Refining and Mining Company was not a bona fide purchaser.

The defendants have appealed and have demanded a trial de novo in this court.

The plaintiff is a retired farmer, who at the time of the transaction at issue here was seventy years of age. He had come to the United States from Sweden when he was twenty-one years old. He had six years formal education in Sweden but was entirely unfamiliar with the English language when he arrived in this country. For two or three years he worked as a farm hand for Swedish speaking families in Minnesota and in 1906, he filed on a homestead in Divide County in this state. He farmed this land and during the succeeding years he acquired three additional quarter sections of land by purchase. He never married. He has learned to speak English, but speaks with a Swedish accent. His ability to read English is very limited. The defendants, Kaufman and Gay, were copartners engaged in business at Minot as brokers of oil and gas leases and other mineral interests.

On October 26, 1950, one Robert Sten-berg, an agent of Kaufman and Gay, purchased from the plaintiff an oil and gas lease of all the plaintiff's land and a mineral deed, which granted to Kaufman and Gay an undivided one half interest in the minerals (with certain stated exceptions) underlying such land.

'Before stating the circumstances upon which plaintiff predicates fraud, we think it best to dispose of the plaintiff’s challenge to the sufficiency of the description of the land contained in the mineral deed. This description is as follows:

“Township 161 North, Range 98 West. Section 30: SW/4
Township 161 North, Range 99 West
Section 23: S/2SW/4 and Lot 2
Section 25: SW/4SW/4
Section 26: SE/4SE/4 and NW/4 and Lot 4
Section 35: E/2NE/4”

Plaintiff’s contention is that the use of such abbreviations as S/2 or SW/4 makes the description unintelligible; that from such description it is impossible to tell what land the parties intended to describe and that therefore the deed is wholly ineffective as a conveyance. In support of this contention, plaintiff relies upon the decisions of this court in Power v. Larabee, 2 N.D. 141, 49 N.W. 724 and Power v. Bowdle, 3 N.D. 107, 54 N.W. 404, 21 L.R.A. 328, 44 Am.St.Rep. 511. In these two cases this court held that an abbreviation such as NW/4 was insufficient to describe a fractional part of a section. Both of these cases relate to descriptions used in tax and tax title proceedings. Later this court in Beggs v. Paine, 15 N.D. 436, 109 N.W. 322, 325, held that the abbreviation N.W. in a column headed “ ‘Part of Section’ ” was sufficient to identify the land as the northwest quarter of the section. In doing so, they referred to Power v. Larabee and Power v. Bowdle, supra, and stated “We are not disposed to extend the ruling in those cases to cases not within the express terms of those decisions.” Subsequently in 1915, the Legislative Assembly enacted Section 57-0202, NDRC 1943, which specifically permits the use of such abbreviations in tax and tax title proceedings, and provides (subsection 5) that when initial letters such as NW or SW shall be followed by the numeral 4 placed on or above the line, the description shall be taken to mean the northwest quarter or the southwest quarter. Thus the legislature has removed any doubt as to the meaning of such abbreviations. They are now clothed with legal certainty. There can be no merit to a contention that a description which is legally sufficient in a tax deed or upon the assessment lists is insufficient in a deed between private parties. The test is whether the description identifies the property. 26 C.J.S., Deeds, § 30, page 210. Presumptively, at least, the parties to a deed would intend abbreviations in title descriptions to have the same meanings that the law gives to those abbreviations when they appear upon the county records.

The next question is whether plaintiff was induced to execute the mineral deed by fraud.

There is some dispute concerning the circumstances leading to the signing of deed. Plaintiff’s version of the facts is that Stenberg asked if he could buy an oil and gas lease and offered a rental of ten cents an acre; that when plaintiff appeared reluctant to execute a lease, Stenberg said, “Come into the house, I give you two hundred dollars;” that plaintiff understood he had been offered the two hundred dollars additional for executing a lease; that the words “deed” or “mineral deed” were not mentioned. On cross-examination plaintiff stated, “He said I was going to get $64, and when we had, before we drew up the papers, he said ‘I give you $200’. So that’s what I thought, so the deal should go through.” He was then asked, “Well now, regardless of what you thought, Mr. Magnusson, what did he (Stenberg) say?” Plaintiff answered, “He didn’t say anything.” Plaintiff stated that during the time Stenberg was preparing the instruments, he explained some of the provisions of the lease but did not mention the deed. Stenberg stated that he" offered the two hundred dollars to plaintiff for half of his minerals and that he read to the plaintiff parts of the mineral deed. There is no question but that Stenberg typed out the lease and mineral deed in the presence of the plaintiff. They were presented to him separately for signature. The mineral deed was entitled “Mineral Deed” in bold face capital letters one half inch high. Stenberg delivered copies of both instruments to the plaintiff at the time of signing and gave him two checks, one for sixty-four dollars and one for two hundred dollars. After Stenberg had left plaintiff’s home, plaintiff examined the copies of the instruments that had been left with him, he saw the word “Deed” on the mineral deed and immediately became concerned over what he had done. The next morning he went to town for the purpose of getting his papers back. He was unable to 'find either Stenberg or Spelhaug. He did see Mrs. Spelhaug and told her he wanted the papers back. He then went to the state’s attorney’s office and left his copies of the instruments and the checks with him. Plaintiff has never cashed either of the checks given to him by Stenberg.

There is thus a direct conflict between the testimony of the plaintiff and the testimony of Stenberg. The plaintiff says that Stenberg never mentioned mineral deed and that he understood that the two hundred dollar check was something in the nature of a bonus for signing the oil and gas lease. Stenberg says he did offer the plaintiff two hundred dollars for half of his minerals. While plaintiff says he understood the two hundred dollar check was a bonus for signing the lease he does not say how he arrived at that understanding. He does not say that Stenberg told him that that was what this check was for. In fact he stated that Stenberg said nothing about what the two hundred dollars was for and said nothing about the fact that he asked plaintiff to sign two instruments. Some of plaintiff’s testimony demonstrates that he was mistaken in saying that a sale of mineral interests was not discussed. The following is part of his cross-examination:

“Q. Did Mr. Spelhaug say anything about his land, that the Federal Land Bank had half the minerals on it? A. Yeah, he was mentioning that.

“Q. What did he say about that? A. Well, he don’t say any tiling. He said only that he just, he just got half of it because the Federal Land Bank has the half.

“Q. Now, what did you understand Mr. Spelhaug to be talking about when he said that? A. I understand — I didn’t understand more than he was saying like he was, that it was nothing wrong to make a lease because he had done it.”

Whatever the plaintiff may have understood, it is perfectly clear that what Mr. Spelhaug was talking about was a mineral interest in real estate other than a lease. It is also clear that the suggestion Mr. Spelhaug was making, was not a suggestion that it would be proper for plaintiff to lease his lands as plaintiff says he understood it, but that it would be proper for him to sell half of his minerals. The language is not subject to the construction which plaintiff claims he gave it. Neither Mr. Stenberg nor Mr. Spelhaug nor anyone with a rudimentary knowledge of the terminology used in transactions involving oil and gas leases, and the sales of mineral- interests would so construe it. The remark made by Spelhaug would "not be pertinent to a discussion concerning a lease but would be very pertinent to a discussion of a sale of a mineral interest. We are therefore compelled to a conclusion that it was a sale of a mineral interest in land that was under discussion at the time the remark was made.

It is possible that plaintiff may not have understood what the subject under discussion was, but there is nothing in the record that indicates that Stenberg was or should have been aware of that fact.

Furthermore, the fact that Stenberg used a blank form, which was clearly labeled “Mineral Deed”; that he presented the lease and mineral deed for signing separately; that he gave two checks and copies of both instruments to plaintiff are all indications that he was acting in good faith.

We are satisfied therefore that -the record in this case does not establish misrepresentation, concealment or fraud of any kind upon the part of the agent for the defendants, Kaufman and Gay.

The judgment of the District Court must therefore be reversed and the action dismissed.

MORRIS, C. J., and GRIMSON and SATHRE, JX, concur.

JOHNSON, J., did not participate.


text:
    UJKA v. STURDEVANT et al.
    No. 7392.
    Supreme Court of North Dakota.
    July 2, 1954.

      Burnett, Bergesen, Conmy & Whittlesey, Fargo, for appellant.
    Forbes & Forbes, Wahpeton, for respondents.
   BURKE, Judge.

The main question upon this appeal is whether the City of Wahpeton had the power to enact its ordinance 14-439, which restricts the use of building lots by prescribing the proportions of lots which are to be left as side yards. The question arose upon plaintiff’s action to enjoin the defendants, Virgil and Lucylle Sturdevant from violating the ordinance by building closer to the side boundary of their lot than the ordinance permitted. In this action the trial court ordered judgment for the defendants. Plaintiff has appealed from the judgment and has raised the issues upon appeal by specifications of error.

The ordinance in question provides:

“Section 14-439. Lot Restrictions The minimum dimensions of yards and courts and the maximum 'building area shall be as follows:

“(a) * * *

“(b) * * *

“(c) Side yard. There shall be a side yard on each side of the building, each yard having a width of not less than ten percent (10%) of the lot width. The width of such yard, however, need not exceed six feet, provided its width shall not be less than equal to one-eight (⅛) of the height of the building.”

The power of the City of Wahpeton to enact such an ordinance must of necessity lie in a specific legislative grant of power or be fairly implied in or incident to a specific grant of power. City of Dickinson v. Thress, 69 N.D. 748, 290 N.W. 653; Lang v. City of Cavalier, 59 N.D. 75, 228 N.W. 819; Village of North Fargo v. City of Fargo, 49 N.D. 597, 192 N.W. 977. Plaintiff cites three statutes, anyone of which, she urges, constitutes an adequate source of power. They are subsections 7 and 13 of Section 40-0502 and Subsection 1, Section 40-0501, NDRC 1943.

We shall direct our attention first to Subsection 13, supra. This section provides that municipalities shall have power: “ * * * to establish building lines fixing the distance from the property line at which buildings may be erected”. The part of the section above quoted first appeared in Subsection 75 of Section 48, Chapter 77, Laws of N.D.1911. This section contained grants of power to cities with the commission form of government. Prior to the adoption of the North Dakota Revised Code of 1943, the grants of power to cities with the council form of government and the grants of power to cities with the commission form of government were contained in separate statutes and there was no specific grant to cities with the council form of government of a power similar to that set forth in Subsection 75, supra.

However, Section 64 of Chapter 77, supra, provides:

“All the provisions of law now in force or which may hereafter be passed by the legislative assembly in relation to the powers; duties or privileges of the president of boards of trustees * * * towns or villages, or mayors of cities, are hereby granted to the president of the board of city commissioners, and except where inapplicable all the provisions of law now in force or hereafter passed by the legislative assembly in relation to the powers, duties or privileges of town or village trustees, or other municipal boards thereof, or the powers, duties or privileges of city councils are hereby granted, to the board of city commissioners provided for in this act; provided, cities incorporated under this act shall for all purposes according to their respective population retain the classification otherwise provided by law.”

This section specifically provides that cities with the commission form of government shall have all the powers possessed by cities with the council form of government and while it does not expressly provide the cities with the council form of government shall have all the powers possessed by cities with the commission form of government, we think it is a fair construction of the language used to say it clearly implies that there should be no distinction or discrimination as to the possession of powers by cities based upon form of government but that the powers of all cities, whatever their form of government, should be equal and co-extensive. This construction was evidently adopted by the Code Commission in 1943 when it eliminated from the code the separate grants of power and incorporated into the code Chapter 40-05 which contains single grants to cities in both categories.

It is our view therefore that the City of Wahpeton, though it has a council form of government, did have the power “to establish building lines fixing the distance from the property line at which buildings may be erected.”

There is a direct conflict between the parties as to what a city may do under this grant of power. The defendants contend that it only authorizes a city to fix the distance from the street at which buildings may be erected. Plaintiff on the other hand urges that it authorizes a city to fix the distance from any property line of a lot beyond which buildings may not extend. In support of their position defendants cite the case of Simpson v. Mikkelsen, 196 Ill. 575, 63 N.E. 1036. That case involved the construction of a plat, which showed a dotted line running across the plat parallel to the street which was designated “building line fifty feet from boulevard line”. The court held that the building line shown on that particular plat fixed the distance from the street at which buildings might be built. The case is clearly not authority for the construction of the words “building-line” in the statute under consideration.

It is a statutory rule of construction that “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention clearly appears”. Section 1-0202, NDRC 1943. The statute to be construed authorizes a city to fix the distance from the property line at which buildings may be erected. Every lot, of course, has as many property lines as it has sides. With respect to property “A line is the division oetween two parcels of land.” Bouvier’s Law Dictionary, Library Edition 1928, p. 728, The ordinary rectangular city lot therefore has four property lines, two dividing it from the street and alley at front and rear and two dividing it from the neighboring lots on each side. The statute does not refer to any particular property line but to property lines generally: We are therefore of the opinion that it.refers to all the property lines of a city lot and that it authorizes a city to fix the distance from any property line of a lot at which buildings may be erected. Having reached this conclusion, it is unnecessary for us to consider the .other statutes which are said to authorize the ordinance in question.

In their brief defendants have argued that since cities have been impowered to enact zoning ordinances and since the right to regulate yard areas, court spaces etc. is contained in the grant of power to create zones, the right to enact restrictions as to side yard usage exists only in connection with the adoption of a zoning ordinance. This argument is answered by the statute authorizing zoning ordinances. The statute is Chapter 40-47 NDRC 1943, which was originally adopted as Chapter 175, Laws of N.D.1923, Section 9 of this Act; Section 40-4713, NDRC 1943, provides:

“Wherever the regulations made under authority of this Act require a greater width or size of yards, or courts, or requires lower height of building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the provisions of the regulations made under the authority of this Act shall govern. Wherever the provisions of any other statute or local ordinance or regulation require a greater width or size of yards or courts, or require a lower height of building or a less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required by the regulations made under the authority of this Act, the provisions of such statute, or local ordinance or regulation shall govern.”

This statute is not only an expression of the legislative intent that the right of cities to legislate with respect to side yards should not be exclusively confined to procedure under the zoning act, but.it is also a clear legislative recognition of the fact that at the time the zoning act was adopted, cit'ies had the power to legislate with respect to the size of side yards and the other matters mentioned.

No argument is made by defendants that the power exercised by the City of Wahpe-ton was beyond the power of the legislature to grant, or that the ordinance adopted was an unreasonable exercise of the power granted. The judgment of the district court is therefore reversed.

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

JOHNSON, J., did not participate.


author: GRIMSON, Judge.

text:
    COMAN v. WILLIAMS.
    No. 7340.
    Supreme Court of North Dakota.
    July 28, 1954.

      J. K. Murray, Bismarck, for appellant.
    John A. Zuger, Bismarck, for respondent.
   GRIMSON, Judge.

Plaintiff brings this action to recover from the defendant $700 damages for fraud and deceit. In his complaint he claims that the defendant, on July 25, 1950, intending to deceive the plaintiff and to induce him to purchase four fur coats, falsely represented to the plaintiff that said “four fur coats were genuine mink, muskrat, beaver and other valuable furs;” that the defendant knew that such representations were false; that in truth and in fact said fur coats were only rabbit coats made to look like the coats which the defendant represented them to be. Plaintiff alleges further that relying upon said false representations and knowing nothing about fur coats “he was induced thereby to purchase and did purchase four rabbit fur coats from the defendant.”

Defendant makes a general denial but admits the sale to the plaintiff of the four fur coats for the sum of $700 and alleges that the plaintiff before the purchase of the coats duly examined the same and induced the defendant to reduce the price to $700 and further that the plaintiff did not purchase the coats for the use of himself and family but for the purpose of selling them to the public at an exorbitant price in order to make a profit therefrom.

The case was tried to a jury. The plaintiff offered his own testimony on the transaction, supported by the testimony of an expert furrier. The defendant was not present and no testimony was offered on his behalf.

At the close of the testimony the attorney for the defendant moved for a directed verdict on the grounds, amongst others, “That the plaintiff failed to establish any measure of damages in this case and that there is no basis for the jury to arrive at any damages.” That motion was denied. The jury rendered a verdict in favor of the plaintiff in the sum of $325. The defendant’s attorney made" the motion for judgment notwithstanding the verdict which was denied. The defendant appeals from the order denying his motion for judgment notwithstanding the verdict and from the judgment. The evidence shows that on July 25, 1950, the plaintiff was the proprietor of “Jimmy’s Bar” in the city of Bismarck; that about 5 o’clock in the afternoon of that day the defendant, a stranger, came into the 'bar and engaged the plaintiff in conversation. He said he had some fur coats for sale; that he had come from Dickinson where he had sold Billy Beaudoin six fur coats. In that connection he showed the plaintiff a folded piece of paper with plaintiff’s name and the name of plaintiff’s bar, signed by Billy Beaudoin, whose signature plaintiff recognized. This served as an introduction to the coat transaction. The defendant had his assistant bring some fur coats into the basement of the bar where there was room to display them. The defendant took the coats out of the sacks one by one and laid them separately upon beer cases. As he did so he said the first was a “genuine muskrat”, the next he said was a “squirrel,” then a “mink” and finally a “beaver.” He claimed they were worth $3,000 but that they were the last ones he had and that he had to get back into Canada that night so he would take $1,500 for all of them. After some negotiations plaintiff offered $600 and defendant came down to $700 which the plaintiff accepted. He paid defendant $440 in cash and a $260 check. The next morning the plaintiff on examining the coats came to the conclusion that something was wrong. He then took them to the furrier who testified they were all rabbit coats. The defendant cash■ed the check locally and plaintiff made it .good.

Shortly thereafter this action was commenced. No service was obtained on defendant but some property claimed to belong to him was attached. Service was had by publication. The defendant’s attorney made a special appearance, objecting to the •manner of service. That matter came to this court in the case of Coman v. Williams, 78 N.D. 560, 50 N.W.2d 494, and the service was sustained. Then in June '1952 this trial was had upon the merits.

By this action the plaintiff elected to affirm the contract and retain the coats. He sues for damages on account of the fraud and misrepresentations. Warne v. Finseth, 50 N.D. 347, 195 N.W. 573.

In connection with the appeals defendant’s counsel served and filed numerous specifications of error and of the insufficiency of the evidence. He, however, in his briefs and -argument to this court presented the appeal on the following- five points:

“1. That the plaintiff wholly failed to establish any measure of damages, nor any factual basis for a jury to base a verdict on with respect to damages;
“2. The plaintiff wholly failed to establish any evidence, either direct or circumstantial, that the defendants knew that anything he said about the coats to the plaintiff was false;
“3. The plaintiff failed to produce any evidence showing any misrepresentation or false statement of a fact by the defendant;
“4. The plaintiff wholly failed to establish by competent or believable evidence that he relied on any statement made by the defendant in connection with the sale of the coats;
“5. The court gave no instructions whatsoever on the measure of damages. This was a vital point of law in this lawsuit and it was the Court’s duty to give at least general instructions on damages.”

We will, therefore, consider this case only upon the five points presented.

The last four points do not present any serious problems for the court in this case.

Under his second point defendant’s counsel argues that plaintiff failed to prove that defendant knew that what he said about the coats was false. Under his third point defendant’s counsel claims plaintiff failed to show any false statement of fact by the defendant and under the fourth point he claims that plaintiff failed to show that he -relied upon such statements of the defendant in connection with the sale of the coats.

It is true that to constitute actionable fraud the representations must be made with knowledge of their falsity and with intent to deceive. 37 C.J.S., Fraud, § 19, p. 254. It is also true that the plaintiff must show that he relied upon the representations made. 37 C.J.S., Fraud, §§ 29, 53, pp. 271, 318; 23 Am.Jur., Fraud and Deceit, Sec. 146, p. 271.

It is, however, entirely a matter for the jury whether the evidence was sufficient to establish fraud in accordance with such legal principles. The verdict indicates that it did so find and there is evidence to sustain such verdict.-■

The defendant on appeal has not pointed out any errors in the instructions that were given. The objection to the instructions is, therefore, deemed waived.

Defendant’s first point, however, raises a very serious question with regard to the sufficiency of the evidence on the amount of the damages. Under that point defendant claims that there is no evidence from which the jury could base the actual value of the coats at the place and time of the transaction. Such value is a prerequisite foundation for the jury to determine the damages. Since the plaintiff retained the coats he is entitled to only such damages as he sustained above the market value of the coats he bought and for which he paid $700.

Plaintiff testified to the coat transaction and placed the fur coats in question in evidence. He then called an expert furrier who explained the methods used by which furs were made to appear to be a different kind of a fur than they actually were. He then asked the expert the actual, wholesale values of the coats. The testimony on this follows:

“Q. In your opinion what is the wholesale value of each of these coats? A. Well, the first one, about $35.00.

“Q. The first one. You mean the one that you referred to as a beaver? A. Yes.

“Q. Thirty-five Dollars. Now what would you say the value of the next three are. Are they the same or are they different ?

“By Mr. Murray: Wholesale or retail?

“By Mr. Zuger: Wholesale.

“A. Two of them are very inexpensive. They would be about $25.00 wholesale. The mink would be about $30.00, I’d say.

“Q. What in your opinion would be the fair and xeasonable retail price of each of those coats in the condition they are? A. From forty-nine to about sixty-nine.

“Q. A maximum of $69.00? A. Yes.”

That is all the testimony that was offered on the actual value of the coats. It will be noticed that questions were all in the present tense at a trial held two years after the coat transaction. Certainly the value of the coats two years after they were bought does not furnish any basis in finding the value of the coats at the time of the transaction. There is no showing that the prices of artificial fur remained stationary during that time. It follows that the evidence is insufficient to sustain the jury’s award of damages.

However, the fact that it was established that the fur coats were made of rabbit skins and that they had been represented to have been manufactured from much more valuable skins, together with the fact that plaintiff had paid $700 for the coats would justify an inference by the jury, not only of fraud, but also that the plaintiff had sustained actual damages. Thus while the evidence was insufficient to enable the jury to estimate the damages precisely, it was sufficient to sustain a verdict of nominal damages. In these circumstances it is clear that defendant was not entitled to a directed verdict. Since a consideration of a motion for judgment notwithstanding the verdict is merely a review of the motion for the directed verdict made at the end of the trial it follows that the motion for judgment notwithstanding the verdict was properly denied. Carl v. Granger Coal Co., 69 Iowa 519, 29 N.W. 437; Sutherland on Damages, Sec. 11, Nominal Damages, pp. 31, 42.

The question of the sufficiency of the evidence was raised upon the appeal from the judgment by an assignment that the trial court’s ruling upon the motion for a directed verdict was error. As we have heretofore stated, the evidence was sufficient to take the case to the jury but it is insufficient to sustain the verdict which was returned. In such circumstances, a new trial should be granted in the interests of justice.

That this court has the power to make such a disposition of an appeal, even in the absence of a motion for a new trial is well settled.

“No motion for a new trial shall be necessary to obtain, on appeal, a review of any questions of law or of the sufficiency of the evidence unless before the taking of the appeal the judge shall notify counsel of the party intending to take the appeal that it desires such motion to be made. * * *” Section 28-2727, NDRC 1943.

No such notice was given by the trial judge in the instant case. Section 28-2729, NDRC 1943, provides:

“Upon an appeal from a judgment or order, the supreme court may reverse, affirm, or modify the judgment or order as to any and all of the parties, and if necessary or proper, may order a new trial of the entire cause or of some specific issue or issues * *

In Johnson v. National Union Fire Insurance Company, SO N.D. 484, 196 N.W. 553, the plaintiff had a verdict upon which judgment was entered. No motion for a new trial was made, nor was there a motion for judgment notwithstanding the verdict. On appeal from the judgment, this court said in the syllabus:

“Where there is some evidence tending to establish plaintiff’s case, the Supreme Court, in reversing judgment based on verdict for plaintiff because of insufficiency of evidence to sustain verdict, will not render judgment for defendant notwithstanding the verdict, but will remand the cause for a new trial.” See also Colgrove v. National Union Fire Insurance Company, 50 N.D. 485, 196 N.W. 553; Ziegler v. Ford Motor Co., 67 N.D. 286, 297, 272 N.W. 743, 747; Nagel v. Emch, 74 N.D. 631, 640, 23 N.W.2d 879; Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697.

Under the circumstances of this case we feel that in the interests of justice a new trial must be granted.

It is so ordered.

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

JOHNSON, J., did not participate.