author: SATHRE, Judge.

text:
    Lester E. HOTH, Plaintiff and Appellant, v. Alma KAHLER, Defendant and Respondent.
    No. 7491.
    Supreme Court of North Dakota.
    Jan. 17, 1956.

      M. S. Byrne, Bowman, Strutz, Jansonius & Fleck, Bismarck, for plaintiff and appellant..
    ■ Amundson & Amundson, Bowman, Mack-off, Kellogg, Muggli & Kirby, Dickinson, for defendant and respondent.
   SATHRE, Judge.

The plaintiff Lester Hoth brings this action against the defendant Alma Kahler for specific performance of an alleged contract of sale of real estate by the defendant to the plaintiff.

The complaint alleges that on February 29, 1952, the defendant sold to the plaintiff the E}4''.of Section 15,, Township 131, Range 101, County ■ of- Bowman, State of North Dakota, at the agreed price of $5,000 payable in cash and that the defendant agreed to convey the same by warranty deed to plaintiff; that under the terms of said sale plaintiff agreed to and with the said defendant to deposit $5,000 in the First National Bank of Bowman, North Dakota, in escrow for the benefit of said defendant and to, be remitted to said defendant upon delivery to plaintiff or to the bank of abstract of title and warranty deed conveying the said described land to the plaintiff and that the defendant agreed' forthwith to forward to said bank the said abstract of title and warranty deed.

That thereafter and on the 29th day of February 1952 and in accordance with the terms of sale of said described premises plaintiff did deposit in the First National Bank of Bowman, North Dakota, the sum of $5,000 in escrow to be paid to the defendant upon delivery to plaintiff or to the said bank of abstract of title to the said described premises and warranty deed duly executed by the defendant and conveying said premises to the plaintiff.

The plaintiff then alleges that the said defendant has failed and refused and still refuses and neglects to convey the real property described, though requested to do so and has failed and refused to carry out the terms and covenants of said sale in violation of and contrary to the terms and obligations of said contract of sale. Plaintiff alleges further that he has performed all of the conditions, covenants, stipulations and provisions of said contract of sale but that the defendant has refused and still refuses to execute a deed to plaintiff of the said described premises and has failed and refuses to execute a deed to plaintiff to the said described premises and has failed and refused and neglected to carry out the terms under said contract of sale; that the plaintiff is ready, willing and able and in fact has tendered the sum of $5,000 the purchase price of the said described premises under the terms of said sale by placing said sum in escrow at the First National Bank at Bowman, North Dakota, to be delivered to said defendant upon delivery of the abstract of title and the properly executed warranty deed to the plaintiff and that the said sum of $5,000 is still in escrow in the First National Bank of Bowman, North Dakota. The complaint further alleges that the plaintiff is now ready, able and willing to tender the said amount of said sale to-wit: the sum of $5,000 to the defendant upon compliance with the terms of said contract of sale.

The complaint then demands judgment that the defendant specifically perform the provisions, covenants, and obligations of said contract of sale and for such other and further relief as the court may deem just and equitable.

The amended answer of the defendant admits that she was the owner of the premises described in the complaint on the 29th day of February 1952 but denies each and every other allegation contained in the complaint. As a further defense the answer alleges that the alleged agreement for the sale of the land described in the complaint is invalid as the same is not and never was in writing subscribed by the defendant or by her agent and that there never was at any time a note or memorandum thereof in writing subscribed by the defendant or by her agent.

For a further and separate defense the defendant alleges that the supposed contract, if there was a contract, was induced by mistake and fraud; that said fraud consists of fraudulent and material misrepresentations made by the plaintiff to the defendant and on which the defendant, believing them to be true relied, to the effect that the land was no longer wanted by the defendant’s tenant; that the land was poor and run down, and that by reason of said mistake and fraud the alleged contract, if any, is null and void and the defendant is not bound thereby. Judgment is then demanded for dismissal of the action.

The facts and circumstances giving rise to this action are as follows:

On February 22, 1952, the plaintiff wrote to the defendant the following letter:

“Dear Madam:

“In reference to the East Half of Section 15, Township 131, Range 101. We have the land adjoining it on the east. I contacted Mr. E. Hilton, the tenant of the land, last fall and he stated and I quote him in saying your land is becoming very run down and it produces very poorly. He wishes for me to rent it from you.

“Mr. Hilton is one of the best farmers in this county and if he can’t make it produce, I am certain I couldn’t do any better, unless

I owned the land and used soil building practices for years.

“I am interested in purchasing the land from you. If you would consider selling, please state me a hard cash offer.

Please reply immediately. I am enclosing stamped, self addressed envelope for your reply.

“Very truly,

/s/ Lester -E. Hoth.”

On February 28, 1952, the plaintiff not having heard from the defendant, either he or his secretary called the defendant by long distance telephone at Grand Island, Nebraska. Plaintiff’s testimony in reference to this telephone conversation is as follows:

“I telephoned Mrs. Kahler and I told her that I had sent her a letter asking to buy her land and that I wished for her to make me an offer and set the asking price and she said the asking price for my land is $5000.00. I said, I will take it. I will put the money up at the bank tomorrow morning. She said she would supply a deed and send me the abstract for examination.”

A letter from the defendant to the plaintiff dated February 27, 1952, plaintiff’s exhibit 5, in answer to his letter of February 22, was already in the mail when he called her by telephone. This letter is as follows: “Dear Sir:

“I reed your letter stating that you would like to buy east half of Section 15 — township 131 — range 101. I plan to either sell or rent it, but I would rather sell it, however Mr. Hilton has a year yet to go on his lease. You mentioned in your letter that Mr. Hilton said the land was run down, no doubt it is he ought to know he has been farming it for a long time, but I would like to point out a few figures that would make things a little more clear to you. My father purchased this land in 1908 from J. H. Coon for a sum of $5600.00, the records will show this. So I will put down some figures to show you what the land has produced in the last few years. I will start from the yr. 1947 to 1951. I will have to leave out 1949 as I cannot find the figures of that yr. at this time, anyway this will give you an idea on how things have been going. This is the following of Mr. Hilton’s own figures, can furnish you original figures and letters on request. For the yr. of 1947 the land produced ,$4185.28 — yr. of 1948 — $7000.00— yr of 1950 $4561.48 — yr of 1951 $3318.96, of this yr. we took a loss of about 18⅜ a bush, because of wet grain. So you see this cut out take down considerable, but all this goes with the farming business. But anyway it leaves a total for the 4 yrs. mentioned above at $19065.72. I reed ¼ of this amt. which amounts to $4766.43 and Mr. Hilton’s share was $14299.29, so the average take per year for the 4 years mentioned above amt. to $4766.43 which is only $233.57 less the price of this land which is $5000.00. You see I live in the heart of the grain belt and there is no land here that can produce its purchase price in a single yr. like this land has done and there is less than ⅜ of it being farmed at that, so it is like you say if this land is built up a little it would make a pretty good farm. The only reason I want to sell this land is because it is so far away from here. But of course if I don’t sell it and no one wants to rent it, I think I will lease it to an oil Co. One Co. in particular has made me a pretty fair offer and then the land can rest for a while. Back in 1908 when my father first purchased this land, there was an Oil Co. that wanted an oil lease on this land, what made them interested in this particular spot was because of a certain under-ground confirmation. They seem to think there was oil there, why he didn’t give them a lease, I don’t know. So if you are interested please let me know.

“Very truly

Mrs Alma Kahler

418 N. Carey Ave. Grand Island, Nebraska.”

On February 29, 1952, the First National Bank of Bowman sent to the defendant a wire, plaintiff’s exhibit -2, as follows:

“Feb. 29, 1952

Alma Kahler — 418 N. Carey Ave. Grand Island, Nebr.

“We hold in escrow $5000.00 from Lester Hoth, your deal on East Half of Section 15, subject to receipt of deed and abstract. Wire privilege of title examination.

“The First National Bank of Bowman.”

On February 29, 1952, the defendant sent to the First National Bank of Bowman a wire as follows: Plaintiff’s exhibit 1:

“First National Bank, Bowman, North Dakota.

“I am sending abstract for exaniinátion a letter will follow

“Alma Kahler.”

On February 29th, the defendant also wrote a letter to the First National Bank of Bowman, which is as follows:

“The First National Bank, Bowman, North Dakota.

“Dear Sirs:

“I am in receipt of a wire today from the First National Bank of Bowman advising that you' hold $5000.00 in escrow from Lester Hoth with reference to a deal on the East Half of Section Fifteen (15). I presume that you desire the Abstract of Title forwarded for the examination of purchaser, and I am enclosing herewith Abstract of Title to the East Half of Section Fifteen (15) Township One Hundred Thirty-One (131) North, Range One Hundred One (101) West of the 5th P.M. You' may deliver this Abstract to prospective purchaser for his title examination, and I presume that the Abstract will have to be extended to date, which expense I will bear, however, should the expense be unusual I should like to be advised before proceeding. I will await your adviie as to the Deed, which I can have prepared here and forward to your. bank with instructions. Kindly advise to whom you wish this Deed made out, and any other instructions pertinent to the sale of this land.

“Respectfully yours, Alma Kahler.”

On March 3rd the First National Bank of Bowman sent a telegram to the defendant Plaintiff’s exhibit 4, which is as follows:

“Alma Kahler ■ March 3, 1952'

418 North Carry Ave. Grand Island, Nebraska

“Received Abstract, title approved; send; Deed favor Lester E. Hoth, he shares abstract costs, will remit on approval of" deed when received.

“First National Bank of Bowman.”"

On March 6, 1952, the defendant wrote to-the First National Bank of Bowman the following letter, defendant’s .exhibit A,, which is as follows:

“First National Bank, Bowman, North Dakota.

“Dear Sir: — I will try and explain in this-letter how . this deal got started so you to will understand the situation. Lester E. Hoth wrote me a letter dated Feb. 22— 1952. Mr. Hoth said in his letter that he ' contacted Mr. Hilton (the tenant of the-land) and he said that Mr. Hilton informed him that the land was becoming very poor & he wished that Mr. Hoth. would write me iir regard to renting it, but Mr. Hoth said he would rather buy it. So I wrote Mr. Hoth a letter & told him that Mr. Hilton-still had another yr. to gc> on his lease. But I told Hoth that if Mr. Hilton didn’t want the land anymore I would sell it to-him. From the way Hoth wrote in his letter I took it for granite that he was a friend of Mr. Hilton and was telling the truth. I thot it strange though he wanted to close-the deal so quick and also thot it. strange-that I didn’t hear from Mr. Hilton, who has-proved to me in the last 8 yrs. that he is a very reliable man. So I wrote Mr. Hilton a letter explaining the situation to him as it stood to date. Mr. Hilton called me long distance just as soon as he got my letter and he said he didn’t tell Hoth that he didn’t want the land, in fact he said he wanted to buy it himself. If you want to see the letter I wrote Mr. Hilton, I am sure he will show it to you. If not I have a copy here, in fact copies of all the transactions up to date. So now the way things stand I am selling the land to Mr. Edgar Hilton at a price of $6000.00 & he is to have all mineral rights. He is to put the $6000.00 in .your bank for me and you can send the $6000.00 to my address, upon approval of deed and abstract. I hope this meets Mr. Hoth’s approval. I am sorry it turned out this way. I tryed to be fair in dealing with Mr. Hoth, but he wasnt fair to Mr. Hilton or myself. So please let me know when every-thing is ready and we will go on with the deal.

“Very truly,

Alma Kahler.”

On March 6, 1952, the defendant wrote to her tenant Edgar Hilton the following letter, defendant’s exhibit D:

“Mr. Edgar Hilton,

Bowman, North Dakota.

“Dear Mr. Hilton:

“I thought it best to drop you a line so that I could explain a few things to you. I am sorry I didn’t write you a letter in the first place, but I thought he was a personal friend of yours the way he wanted to close the deal so quick that I became suspicious. So I want you to stand up for yourself and don’t let them bluff you out and I will do the same. All I did was to send the abstract up there for examination and the bank has it in their possession. I also called the bank right after I talked to you and I instructed them what to do and I also sent them a letter with instructions. Mr. Hoth may kick up a little fuss but there is nothing he can do about it because he didn’t tell' me the truth about the matter and I have a letter here to prove it. I have always been fair in my dealings and I want to stay that way. I want you to have the land because the dealings I have had with you in the past have always been satisfactory. I know this will -make a good deal for you. There has been some oil company that has made us a pretty good offer. If you would like to have the letters I will send them to you. So please keep me posted on how things are progressing. As soon as things are straightened, out to everyone’s satisfaction I will send the deed made out in your favor. Please inform me if you want it made out in your and your wife’s name or yours alone.

“Yours truly,

James Kahler,

418 North Carey Avenue, Grand Island, Nebraska.

“P.S. All taxes are paid and everything is free and clear.”

On March 29, 1952, a firm of attorneys at Grand Island, Nebr., wrote the following letter, defendant’s exhibit B, to the First National Bank of Bowman, North Dakota.

“First National Bank,

Bowmán,'North Dakota.

“Gentlemen:

“Mrs. Alma Kahler of this city has requested us to ask you to return the abstract which she sent you some time ago and which you acknowledged receipt of by telegram dated March 3, 1952.

“If there. is any charges please send us the statement .and she will remit for the same.

. “Very truly yours,

Cunningham, McDermott & Cunningham.”

Defendant’s exhibit C is a letter from the First National Bank- to Cunningham, Mc-Dermott & Cunningham, dated- March 31, 1952 and is as follows: : .

“Cunningham, McDermott & Cunningham Cowton Building,

Grand Island, Nebraska

“Attention: B. J. Cunningham

“Dear Sir:

“In accordance with your letter of the 29th o.f March we are returning herewith the abstract of title covering the East Half of Section 15-131-101, Bowman County, which we received from Alma Kahler with her letter of February 29, 1952.

“Our fee in connection with handling and mailing will be $1.00.

“Very truly, yours,

D. G. Hogoboom, Cashier.”

The case was tried in district court, Sixth Judicial District, Bowman County, before the Hon. J. O. Wigen without a jury. The plaintiff contended that the correspondence and telegrams constituted a valid contract for sale by the defendant of the land described in the complaint. The defendant contended first, that the correspondence relied'upon by the plaintiff was not sufficient as a note or memorandum under the statute of frauds; and, that even though the correspondence was sufficient as a memorandum in writing, nevertheless the defendant was induced to enter into an agreement through fraud and misrepresentation on the part of the plaintiff made in- his letter to the defendant of February 22, 1952.

The district court decided in favor of the defendant principally on .two grounds; 1st, that there had been misrepresentation ■on the part of the plaintiff when he stated that the tenant Mr. Hilton was not interested in farming the land any longer, and 2nd, even if there had been a valid contract •of sale there was an abandonment by plaintiff because of the fact that the bank had returned the abstract to the defendant’s •attorneys in response to their letter of March 29, 1952, requesting the return of the abstract to them.

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

The first question for consideration is whether the correspondence,' telegrams and ■other communications between the parties are sufficient to constitute a complete and valid contract of purchase and sale.

The negotiations between the parties were initiated by plaintiff’s letter, plaintiff’s ■exhibit 9, to the defendant, dated -February 22, 1952, in which he stated he was interested in buying the land in question .and asked for a “hard cash” offer. On February 28th not having received a reply to his letter of February 22nd, he called the defendant by long distance telephone and was told by defendant that a reply to his letter was in the mail and that the asking price of the land was $5,000. He advised the defendant that he would put up the money in the bank the next morning. Defendant’s reply to plaintiff’s letter of February' 22nd, plaintiff’s exhibit 5, was received by him on February 29th. In this letter defendant stated that her price was $5,000. The letter contained a detailed statement of the proceeds of the crops raised on the land during the years 1947, 1948, 1950 and 1951, and that the total value of the crops during those years was $19,065.72. The purpose in making this detailed statement of the value of the crops raised during the four years was undoubtedly in answer to plaintiff’s statement that the land “produces very poorly.”

On February 29, 1952, the First National Bank of Bowman sent to defendant a telegram, plaintiff’s exhibit 2, advising that the bank held $5,000 in escrow from the plaintiff subject to receipt of deed and abstract, and asked for privilege of title examination. The check was introduced in evidence as plaintiff’s exhibit 8, dated February 29, 1952, payable to First National Bank, Bowman and had this notation: “Deed and abstract, Ei^-15-131-101, Alma Kahler.” On the same day, February 29th, the defendant wired the bank that she was sending abstract for examination and stating that letter would follow. On the same day defendant wrote the bank acknowledging receipt of its telegram and enclosing abstract and asked to whom deed was to be issued. On March 3rd the bank sent a telegram to defendant, plaintiff’s exhibit 4, stating that title was approved and that deed was to be issued to Lester Hoth, and that remittance would be made on approval of deed. It is admitted that in all these transactions the bank was agent of the plaintiff.

Meanwhile the defendant had communicated with Hilton and found that he was willing to buy the land. Defendant offered the land to Hilton for $7,000 but finally agreed to sell it to him for $6,000. Defendant then wrote the letter of March 6th, defendant’s exhibit A, to the Bowman Bank explaining why she had repudiated the sale to the plaintiff advising the bank that Hilton was to deposit $6,000 in the bank to be sent to her upon approval of deed and abstract. On the same date she wrote a letter to Edgar Hilton in which she sought to explain why she had repudiated the sale to the plaintiff and in which she stated among other things: “as soon as things are straightened out to everyone’s satisfaction I will send the deed made out in your favor.” .

It seems clear from the correspondence, telephone conversation and telegrams between the parties that there was an offer by the defendant to sell the land in question for $5,000 and an acceptance of the offer by the plaintiff. There was no disagreement as to the terms of the sale. The defendant sent the abstract of title to the bank. The bank advised defendant that the title was approved and directed her to issue deed to Lester Hoth, the plaintiff. There was full compliance of the sales agreement by the plaintiff. The money was on deposit in the bank for payment to defendant on receipt of the deed. There was no ambiguity as to the conditions to be performed by the seller or the buyer. No objection was made by the defendant that the plaintiff had not fulfilled his part of the agreement. Defendant was advised by the bank that the title was approved and that the purchase price would be paid on receipt of deed to plaintiff.

The party to be charged in the instant case is the defendant and we think that the letters and telegrams sent by her 'to the plaintiff and to the bank constitute sufficient writing and memoranda to satisfy the statute of frauds. In the case of Goetz v. Hubbell, 66 N.D. 491, 266 N.W. 836, 838, this court said:

“An agreement for the sale of real property is invalid ‘unless the same, or some note or memorandum thereof; is in writing and subscribed by the party to be charged.’ Compiled Laws [Sec. 5888], Ordinarily, such memorandum would be an informal notation in writing of the'salient features of the contract for purchase and sale and would state the provisions necessary to be included in the formal con-
tract; but these need not be set forth in any set order. Neither is there any requirement that the memorandum itself shall be one document. ‘Any kind of document or documents, taken singly or together, may constitute the required memorandum, if the terms of the contract are sufficiently stated therein.’ If these documents ‘show who are the contracting parties, intelligently identify the subject matter involved, express the consideration, and disclose the terms and conditions upon which the contract is entered into/ then the memorandum is sufficient.”
“A contract, in order to be specifically enforceable, must be complete in itself with respect to all its terms or parts, or at least with respect to its essential and material terms, parts, and elements, it must be capable of being performed without adding to its terms; and it must not leave a material and essential term or element for future negotiation and settlement. The court cannot supply an important .omission or complete a defective contract for the purpose of specific performance. Where, however, all the essential elements of a contract are stated, a failure to include other provisions which might properly have been incorporated does not prevent a decree of specific performance; and terms which the law implies need not be expressly stated. Further negotiations after the contract has been completed do not prevent specific performance of the contract. It is no defense that the agreement must be gathered from more than one instrument where they may fairly be construed as constituting one writing.” 81 C.J.S. Specific Performance, § 35, pages 494, 495, 496. '

We are of the opinion -that the correspondence, telegrams and transactions, had between the parties were sufficient to. satisfy the statute of frauds and to establish a valid contract for the sale and purchase of the land described in the complaint.

The next question for consideration is whether the defendant was induced to enter into' the agreement to' sell through fraud and misrepresentation on the part 'of the plaintiff.

The misrepresentation complained of by the defendant is that the plaintiff stated in his letter to the defendant of February 22,. 1952, that Mr. Hilton, defendant’s tenant, did not care to farm the land in question any longer and that he suggested that plaintiff farm the land. We quote from the letter:

“I contacted Mr. E. Hilton, the tenant on the land, last fall and he stated and I quote him in saying your land is becoming very run down and it .produces very poorly. He wishes for me to rent it from you. Mr. Hilton is one of the best farmers in this county and if he can’t make it produce I am certain I couldn’t do any better, unless I owned the land and used soil building practices for years.”

It will be noted that plaintiff did not say that Hilton did not wish to buy the land.

The defendant’s reply to this letter would indicate that she did not believe the land was “run down”. She produced figures showing that during the years 1947, 1948, 1950 and 1951 the land in question had produced crops to the total value of $19,065. Then she writes, “I rec’d ½ of this amount which amounts to $4766.43 and Mr. Hilton’s share was $14,299.29, so that the average take per year for the 4 years mentioned above amt. to $4-66.43 which is only $233.57 less the asking price of this land which is $5000.00. You see I live in the heart of the grain belt and there is no land here that can produce its purchase price in a single yr. like this land has done and there is less then z/z of it being farmed at that, so it is like you say if this land is built up a little would make a pretty good farm.” She stated further: “The only reason I want to sell this land is because it is so far away from here. But of course if I don’t sell it and no one wants to rent it I think I will' lease it to an Oil Co.”

' It ‘is evident from what defendant said m this letter that she was not much impressed with' plaintiff’s statement that the land “produced poorly”. ' She discussed the good qualities of the land and was demonstrating its productivity. In other words her statements were in the nattire of a “sales talk” by one who has property for sale.

With reference to the alleged misrepresentation made by plaintiff in his letter of February 22, 1952, plaintiff’s exhibit 9, the plaintiff testified on cross-examination as follows:

“Q. Did you have a conversation with Mr. Hilton about this land? A. Yes.
“Q. When ? A. I recall it was the fall of 1951.
“Q. Is that right? A. Yes.
“Q. Do you know where the conversation was held? A. In the pool room in Bowman. In the bar.
“Q. Who was present at the time? A. The bar was full of people.
“Q. You don’t remember any particular individual? A. My father.
“Q. Anyone else? A. Not in the conversation.
"Q. You- three were there? A. Yes. ‘
“Q. What was said by you and what was said by Mr. Hilton at that time? A. Mr. Hilton said to my father and I, ‘Do you fellows want to farm Section 15 ?’ We said we didn’t know. ‘Well’, he says, ‘it is getting so now it is all wild oats. I don’t want it any mors.’
“Q. That is what he told you? A. Yes.
“Q. In the fall of 1951? A. That is right.
“Q. That is the only conversation you had with him? A. Yes.
"Q. He didn’t say he wanted you to rent it? A. Yes.”

Plaintiff’s father, Henry Hoth, who was present during the conversation with Hilton, testified as follows:

“Q. What relation, if any, are you to the plaintiff in this action ? A. That is my son.
“Q. Have you or have .y.ou not been present in the courtroom during the time your son was on stand ? A. Yes.
“Q. Did you or did you not hear his testimony? A. Yes.
“Q. Do you or do you not recall being in a certain bar room in the fall of 1951 wherein a purported conversa-' tion took place between Mr. Plilton, yourself and your son? A. Yes.
“Q. Do you recall that conversation? A. Yes.
“Q. What was that conversation? What was said by Mr. Hilton, by yourself and by your son ? A. I asked him how the crop was out there. He said, ‘Not very good. Too much wild seed.’ I said, ‘Why don’t you strip it?’ He said, ‘The people that own it don’t want it stripped. They want it all farmed.’ He said, ‘Why don’t you rent it?’ My son said, ‘Woitldn’t farm it unless I stripped it and I wouldn’t strip it unless I owned the land.’ ”

The testimony of Hilton relative to the said conversation is that in the fall of 1951 he was “in the pool hall or one of those places.” He testified that “the only time I remember was a couple of years ago when I said it was kind of getting run down.” He was asked on cross-examination, “You don’t remember stating you wanted the plaintiff and his father to rent it? A. I don’t remember, I don’t believe so. I am sure I didn’t.”

“Q. You never told them the land was run down? A. All I remember telling them was that it need summer' ’ fallowing and was getting a lot of wild oats in it.” • -. ,'.

With reference to the alleged misrepresentation in -plaintiff’s letter of February 22, 1952, plaintiff’s, exhibit 9, the defendant Alma Kahler testified as follows:

“Q. Did that influence you in offering the sale of this land, to him and that you had an asking price of $5000.00. Did'that, affect your judgment? A. It ' /
“Q. Did" you at any time intend to sell the land if Mr. Hilton still wanted it? A. If Mr. Hilton intended to buy it -we intended to sell it to him some , time. .
“Q. So you were influenced by that letter? A. Yes.
“Q. Did you .communicate with Mr. Hilton to find out whát his intentions were? A. Well, I thought it was rather strange that Mr.' Hoth would write such a letter so that .is the reason I wrote to Mr. Hilton right away.
“Q. And did you find out it wasn’t true that Mr. Hilton didn’t want the land ? A. It was not true:
“Q. Did you write a letter to Mr. Hilton after you received this letter? A. Yes.
“Q. You wrote and informed him as to, what had been going on ? ,A. Yes..
“Q. You wrote Mr. Hilton more than once? A. Yes.”

On cross-examination defendant testified further as follows:

“Q. When did you first decide you wanted to sell this land? A. We, we had thought over it quite a little while. It was so far away from home. That is why we wanted to sell it. We always had Edgar in mind.
“Q. Had you talked to him before ? A. Yes.
“Q. He didn’t want to buy it then? A. At that time we weren’t quite ready.
“Q. What do you mean? A. We just hadn’t thought much about it.
“Q. But at the time you wrote this letter you were definitely in a mood to sell it? A. Yes.”

It is quite clear from defendant’s testimony that although she testified that “we had always had Edgar (Hilton) in mind,” she seized the first opportunity to sell her land to the plaintiff. If she were so interested in selling to her tenant she could just as easily have communicated with him before she made the sale to the plaintiff as after she made the sale. The clear inference from her conduct is that she wanted to make sure she had a buyer. She was evidently negotiating with Hilton for sale of the land after she made the deal with the plaintiff. She first asked Hilton $7,000 as a purchase price, and when he agreed to pay $6,000 she attempted to repudiate her sale to the plaintiff. The sale to the plaintiff was completed on March 3rd when the Bowman bank wired defendant that title was approved and asking that deed be made in favor of Lester Hoth. The letter of the defendant to the Bowman bank in which she repudiated the sale to the plaintiff was not written until March 6th. In this letter she gives direction to the bank that Hilton is to place $6,000 in the bank to be sent to her upon approval of deed and abstract. She is not convinced, however, that she has been fair to the plaintiff, for she says, “I hope this meets Mr. Hoth’s approval. I am sorry it turned out this way. * * * So please let me know when everything is ready and we will go on with the deal.”

In defendant’s exhibit D, the letter from the defendant to her tenant, Hilton, dated March 6th, she stated:

“I am sorry I didn’t write you a letter in the first place, but I thought he was a personal friend of yours the way he wrote in his letter but he wanted to close the deal so quick that I became suspicious.”

But although she became suspicious because “he wanted to close the deal so quick”, she nevertheless made an offer to sell the land to the plaintiff for $5,000 cash and which plaintiff accepted before she, the defendant, communicated with her tenant.

The conduct of the defendant would indicate that her main interest was to secure a buyer for her land. She admitted that she was definitely in a mood to sell it. She did not contact her tenant until after she had agreed to sell the land to the plaintiff, and she did not attempt to repudiate the sale to the plaintiff until her tenant offered to buy the land for $6,000 or $1,000 more than the price for which she agreed to sell it to the plaintiff. We come to the conclusion therefore that the sale to the plaintiff was not induced through fraud or misrepresentation on his part.

Defendant further contends that there was an abandonment of the contract by the plaintiff for the reason that the Bowman bank, upon request by a firm of attorneys in Grand Island, Nebraska, returned the abstract of title to the land involved here. The letter written to the bank by said attorneys did not mention the land deal. It simply stated that Alma Kahler had requested them to ask the return of the abstract sent to the bank some time ago. The fact that the bank returned the abstract as requested certainly cannot be considered as an abandonment of plaintiff’s agreement to buy the land. The claim of abandonment by the plaintiff is therefore without merit. The cashier of the bank testifying in this matter admitted that he returned the abstract, but he stated that the bank still held the sum of $5,000 for payment to defendant.

During the trial in district court it was stipulated that plaintiff’s account in the First National Bank of Bowman, the bank where the $5,000 check was held in escrow for defendant, that plaintiff’s balance was less then $5,000 until March 10, 1952. However the cashier of the bank testified that the bank was obligated to pay and would pay the $5,000 to defendant upon receipt of the deed; he testified further that plaintiff had wheat on hand which he would sell to replenish his account and would sell same within a few days. The defendant never questioned plaintiff’s financial ability to pay the purchase price. The bank wired defendant on February 29th that the purchase price of $5,000 would be sent to her upon approval of the title and receipt of deed. She was duly notified by the bank on March 3rd that title was approved and that remittance would be made upon receipt and approval of the deed.

The defendant-respondent argues in her brief that there is uncertainty as to the form of deed that defendant was to furnish under the terms of the agreement between the parties because the following telegram from the Bowman bank to the defendant does not specify the form of deed to be furnished:

“Received abstract, title approved: send deed favor Lester Hoth, he shares abstract costs, will remit on approval of deed when received.”

The defendant never raised any question as to the form of deed she was to furnish and it was not an issue in the case. Her refusal to make the sale was based on other grounds. However, the general rule in such cases is stated in 55 Am.Jur., Vendor and Purchaser, page 747, Section 315, as follows :

“The rule of the English courts and that of the majority of the courts in this country is that in every contract for sale of land the vendor, unless he acts in a ministerial or fiduciary capacity, or unless there is something in the terms of the contract or attendant circumstances which shows a contrary intention, impliedly engages not merely to give a good title, but also to convey by a deed containing the usual covenants of title. It has been said in this connection that if the purchaser is entitled to a good title and is to accept a deed by which the agreement of the vendor to convey such a title is satisfied, the deed should be such as would, in the event of a paramount title ousting him, give all the right to recover the purchase money which existed in the agreement before it was satisfied by the acceptance of the deed. Accordingly, it has been held that a complaint alleging that a vendor obligated himself to convey land ‘in fee simple by warranty deed’ may be supported by title bonds reciting that he would convey the land ‘by good and valid deed or deeds in common form’. This does not constitute a variance, for a good and valid deed in common form is, in legal effect, a warranty deed.”

Section 47-1019, NDRC 1943, defines covenants implied in the use of the word “Grant” as follows:

“From the use of the word ‘grant’ in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs and assigns, are implied unless restrained by express terms contained in such conveyance:
“1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, nor any right, title, or interest therein, to any person other than the grantee; and
“2. That such estate, at the time of the execution of such conveyance, is free from encumbrances done, made, or suffered by the grantor, or any person claiming under him. Such covenants may be sued upon in the same manner as if they had been inserted expressly in the conveyance.”

In the case of Skinner v. Stone, 144 Ark. 353, 222 S.W. 360, 11 A.L.R. 808, Syllabus 2, states the rule as follows:

“Where the contract provided for the sale of the land without specifying the kind of conveyance, it will be implied that a conveyance of the fee by deed with general warranty was intended.”

In the case of Petre v. Slowinski, 251 Wis. 478, 29 N.W.2d 505, 507, The Supreme Court of Wisconsin said:

“As to the second question, it is well settled that where no provision indicating the character of the title is made in a contract for the sale of real estate, the law implies that the vendor is to convey a marketable title free from incumbrances. 55 Am.Jur. p. 619, § 149; Curtis Land & Loan Company v. Interior Land Company, 137 Wis. 341, 347, 348, 118 N.W. 853, 129 Am.St.Rep. 1068. Respondents are therefore entitled to the statutory warranty deed provided for in sec. 235.06, Stats.”

It is also contended by the defendant that she could not give a. warranty, deed because her tenant’s farm'lease of the land had a year to run. -We think this fact is of no consequence because plaintiff had full notice of the unexpired lease before he entered into the purchase agreement' and therefore was aware of the rights of the holder of the lease.

We conclude that the record and the evidence establish a valid agreement of purchase and sale between the parties of the real state here involved; that the plaintiff has performed his part of the agreement and is entitled to a decree requiring specific performance by the'defendant.

The judgment is reversed and the case remanded to the district court with directions to enter judgment in conformity with this opinion.

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


source: Caselaw Access Project

author: BURKE, Chief Justice.

license: Public Domain

text:
    E. E. SWANSTON, Plaintiff and Respondent, v. SWANSTON EQUIPMENT COMPANY, a corporation, Defendant and Appellant.
    No. 7472.
    Supreme Court of North Dakota.
    Jan. 17, 1956.

      Lanier, Lanier & Knox, Fargo, for appellant.
    J. K. Murray, Bismarck, for respondent.
   BURKE, Chief Justice.

By this action plaintiff sought to recover from the defendant wages and expenses for the month of January 1953, in the sum of $448.50. The defendant answered denying that it was indebted to the plaintiff in any amount and by way of counterclaim alleged that defendant was indebted to it in the sum of $12,500. At the trial the defendant admitted that plaintiff had been employed by it during the month of January 1953, and had not been paid his salary and expenses for that month. It was defendant’s contention, however, that plaintiff’s claim in this action had been released and settled by a compromise agreement made by the parties in a prior action. Upon the counterclaim defendant limited its claim to the value of a 1951 Nash automobile which it claimed had been converted by the plaintiff. The case was tried to the court without a jury, and judgment was entered in favor of the plaintiff for the full amount of his claim and for the dismissal of defendant’s counterclaim. The defendant has appealed from the judgment. No demand for trial de novo, nor specifications of any facts which appellant desired this court to review were incorporated into the settled statement of the case as required by Section 28-2732, NDRC 1943. This section provides:

“A party desiring to appeal from a judgment in any such action (one tried to the court without a jury) shall cause a statement of the case to be settled within the time and in the manner prescribed by chapter 18 of this title, and shall specify therein the questions of fact that he desires the supreme court to review, and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court. Only such evidence as relates to the questions of fact to be reviewed shall be embodied in this statement. If the appellant shall specify in the statement that he desires to review the entire case, all the evidence and proceedings shall be embodied in the statement.”

Ever since 1899, when the case of Ricks v. Bergsvendsen was decided this court has consistently held that upon an appeal in a case tried to the court without a jury, unless a demand for a trial anew, or questions of fact which appellant desires the supreme court to review, are specified in the statement of the case, the review by the supreme court is limited to a consideration and determination of whether the findings in the case sustain the judgment. This holding is predicated chiefly upon the statutory declaration that “all questions of fact not so specified shall be deemed upon appeal to have been properly decided

by the trial court.” Ricks v. Bergsvendsen, 8 N.D. 578, 80 N.W. 768; Erickson v. Citizens’ Nat. Bank, 9 N.D. 81, 81 N.W. 46; Hayes v. Taylor, 9 N.D. 92, 81 N.W.

49; Mooney v. Donovan, 9 N.D. 93, 81 N.W. 50; Douglas v. Glazier, 9 N.D. 615, 84 N.W. 552; Teinen v. Lally, 10 N.D. 153, 86 N.W. 356; Lunde v. Irish, 50 N.D. 312, 195 N.W. 825; Coffiand v. Naftalin, 58 N.D. 386, 226 N.W. 627; Retterath v. Retterath, 76 N.D. 583, 38 N.W.2d 409; Belakjon v. Hilstad, 78 N.D. 194, 48 N.W.2d 747; Coppin v. Pankow, 79 N.D. 157, 54 N.W.2d 877; Mevorah v. Goodman, N.D., 65 N.W.2d 278.

Under statutory direction and the decisions of this court it is clear that we may not consider the evidence in the case upon this appeal, but must consider all questions of fact correctly decided.

The only two specifications of error on this appeal challenged the trial court’s findings upon the two controverted issues in the case. These findings read as follows:

“That in a prior action between the stockholders of said defendant corporation, the plaintiff and certain other stockholders sold their stock to other stockholders of said corporation; that said sale of said stock by the plaintiff and his group of stockholders did not in any shape, form or manner embrace or involve the payment, adjustment or compromise of the cause of action set forth in the complaint herein; that the automobile set forth in defendant’s counterclaim at all times since its purchase was and is the property of the plaintiff and the defendant corporation at no time had any right, title or interest therein.”

It is obvious that we may not consider the correctness of these findings, even in so far as they contain conclusions of law, without resort to the evidence and exhibits in the case. Since this evidence is not before us and the findings support the judgment, the judgment is affirmed.

MORRIS, SATHRE, JOHNSON, and GRIMSON, JJ., concur.


author: MORRIS, Judge.

text:
    NORTHWESTERN IMPROVEMENT COMPANY, a corporation, Plaintiff and Respondent, v. Bruce Arthur NORRIS; M. C. Rausch; Gordon J. Williams; The Prudential Insurance Company of America, a corporation; and all other persons unknown claiming any estate or interest in or lien or incumbrance upon the property described in the complaint, Defendants, and Bruce Arthur Norris, Defendant and Appellant.
    No. 7549.
    Supreme Court of North Dakota.
    Dec. 19, 1955.
    Rehearing Denied Feb. 17, 1956.

      Robert Wallin, Hettinger, and Jackson & Krause, Lemmon, S. D., of counsel, for defendant and appellant, Bruce Arthur Norris.
    Conmy & Conmy, Fargo, for plaintiff and respondent.
   MORRIS, Judge.

In this action the plaintiff seeks to quiet title in itself to

“all minerals of any nature whatsoever, including coal, iron, natural gas, and oil upon or in the following described real property located in the County of Grant in the State of North Dakota, towit:
“Section Twenty-three (23) in Township One Hundred Thirty-One (131) North, Range Ninety (90) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres, more or less.
“The Southeast Quarter (SE14.) of Section Twenty-five (25), Township One Hundred Thirty-One (131) North of Range Ninety (90) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 160 acres, more or less.
“Section Fifteen (15) in Township One Hundred Thirty-One (131) North Range Ninety (90) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres, more or less,
together with the use of such surface as may be necessary for exploring for and mining or otherwise extracting and carrying away the same, but subject to the obligation to pay to the owner of the surface of such lands the market value at the time mining operations are commenced of such portion of the surface as may be used for such operations, including any improvements thereon, and subject to the right of the owner of the surface at all times to mine and remove such reasonable quantity of coal as may be necessary for his own domestic use.”

The trial court directed title to be quieted in the plaintiff to this property and judgment was entered accordingly. From this judgment the defendant Bruce Arthur Norris alone appeals.

The plaintiff rests its immediate claim of title to all of the property involved in the action to quiet title on a quitclaim deed dated September 29, 1942, issued by the Northwestern Improvement Company, a New Jersey corporation, to the plaintiff Northwestern Improvement Company, a Delaware corporation. This deed was recorded January 8, 1943, and grants, bargains, quitclaims, and conveys to the plaintiff, its successors and assigns forever, all minerals and mining rights “heretofore excepted and reserved to itself, its successors and assigns” by the grantor.

The plaintiff contends that is grantor, the New Jersey corporation, became the owner of the surface and all of the minerals in or under the lands involved in this action by virtue of a special warranty deed executed by Walter B. Horn and Evelyn L. Horn, his wife, November 18, 1897, and recorded in the office of the register of deeds of Morton County, March 26, 1898, and transcribed to the records of the office of the register of deeds of Grant County wherein the lands are now situated and that in any conveyances executed by the New Jersey corporation to the lands herein involved it conveyed only the surface and reserved to the grantor, its successors and assigns forever, “all minerals of any nature whatsoever, including coal, iron, natural gas and oil, upon or in said land, * * The plaintiff further contends that regardless of what the records in the office of the register of deeds in Grant County may or may not show, the New Jersey corporation never parted with title to any of the minerals because of the reservation in the deeds which it issued and the title to those minerals passed to the plaintiff by virtue of its quitclaim deed from the New Jersey corporation.

The appellant contends that he acquired his title as an innocent purchaser for value; that he is protected by our recording acts, Chapter 47-19 NDRC 1943; and that he is further protected by our marketable record title act, Chapter 47-19A NDRC 1953 Supp., which was enacted as Chapter 280 SLND 1951. Of the titles here involved that to Section 15 is the least complicated and since it involves most of the issues presented by this appeal we discuss it in some detail. The record title in the office of the register of deeds of Grant County shows that on May 6, 1913, the Northwestern Improvement Company, a corporation organized and existing under the laws of the State of New Jersey, owned title to this land without reservation or exception. On that date the New Jersey corporation executed a warranty deed to John H. Krueger. This deed was recorded May 31, 1913, in Book 33 of Deeds, Page 368, of Morton County and transcribed to Book 15, Page 309, in the office of the register of deeds in Grant County. It contained this provision :

“Excepting and reserving unto the grantor its successors and assigns, forever all coal and iron upon or in said land, together with the use of such of the surface as may be necessary for exploring for, and mining or otherwise extracting and carrying away the same. But the grantor its successors and assigns, shall pay to the grantee or to his heirs or assigns, the market value at the time the mining operations are commenced of such portion of the surface as may be used for such operations, including any improvements thereon the grantee his heirs or assigns, shall notwithstanding have at all times the right to mine and remove such reasonable quantity of coal as may be necessary for his own domestic use, * *

On March 4, 1914, John H. Krueger and his wife issued a warranty deed to all of Section IS to F. G. Collins. This deed was recorded on April 3, 1914, in Book 45 on Page 112 in the office of the register of deeds of Morton County and transcribed to Book 6 on Page 520 in the office of the reg-, ister of deeds of Grant County.

On August 3, 1915, F. G. Collins and his wife executed a warranty deed to John Kreutz which was recorded May 12, 1919.

On March 31, 1919, John Kreutz and his wife executed a warranty deed to F. L. Nigey which was recorded April 21, 1919.

On August 5, 1929, F. L. Nigey executed a warranty, deed to Elizabeth Nigey, his wife, which was recorded April 18, 1936. On August 30, 1935, Elizabeth Nigey, a widow, executed a warranty deed to Gordon G. Williams which was recorded April 18, 1936.

On November 2, 1942, Gordon G. Williams and his wife executed a warranty deed to Robert J. Hanley. This deed was recorded November 16, 1942.

The next instrument in chronological order appearing of record affecting title to Section 15 is the quitclaim deed heretofore mentioned from the Northwestern Improvement Company of New Jersey to the plaintiff which was recorded January 8, 1943, purporting to convey to the plaintiff all the minerals and mining rights which the New Jersey corporation had reserved to itself.

On July 23, 1953, Robert J. Hanley and his wife executed a quitclaim deed to Bruce Arthur Norris, the appellant, which was recorded on August 10, 1953. This deed purports to grant, bargain, sell, remise, release and quitclaim to the grantee, his heirs and assigns, forever, all the right, title, interest, claim, or demand in or to the land described therein. According to the record, the title which John H. Krueger received from the Northwestern Improvement Company of New Jersey was transferred through various grantors intact until it reached the present owner, the appellant. The title which Krueger obtained was one in fee simple subject only to the provision of the deed excepting and reserving all coal and iron upon or in the land. The plaintiff contends that the original Krueger deed excepted and reserved all minerals and that through an error in recording only coal and iron were shown to be excepted and reserved. The plaintiff was not able to produce the original deed and undertook to show its contents.

The trial court admitted in evidence over appellant’s objection a number of photostatic exhibits offered by the plaintiff, including a price list of lands for sale to actual settlers by the Northern Pacific Railway Company. Among the lands listed was Section 15 in controversy here. This list was dated February 25, 1910, and contained a page of information as to terms and conditions of sale. It described a five year credit plan and a statement that all contracts and deeds, except to land in certain counties not of interest in this controversy, would contain the provision

“Excepting and reserving unto the party of the first part, its successors and assigns, forever, all minerals of any nature whatsoever, including coal, iron, natural gas and oil, upon or in said land * *

All of these exhibits are photostatic copies of records of the land department of the Northern Pacific Railway Company or the Northwestern Improvement Company. The next exhibit is an offer signed by W. E. Scripture applying to purchase Section IS “on your Five year credit plan.” Attached to this application to purchase is a synopsis of the terms and conditions of sale. Among them is a statement providing for the exception and reservation of all minerals in the same language as expressed in the price list. The next exhibit is a “Five Year Contract” number S261N, dated April 7, 1910, in which the Northwestern Improvement Company, a New Jersey corporation, sells Section IS to W. E. Scripture for two thousand two hundred forty dollars to be paid in a cash installment and five subsequent annual payments. This contract contains the exception and reservation by the vendor of all minerals in the language previously quoted. Still another exhibit is from the records of the Northwestern Improvement Company, being a memorandum of the sale of Section IS to W. E. Scripture by contract number S261N on April 7, 1910 under a five year contract. This memorandum contains these notations: “Price List No. 6, Dated Feb. 25th, 1910.” “All minerals reserved including coal, iron, natural gas and oil.” There was also introduced in evidence a record of land sale of the Northwestern Improvement Company for the month of April 1910. It shows the sale of Section 15 to W. E. Scripture by contract number 5261N, which was assigned to John IT. Krueger, September 15, 1910. It also shows that the land was deeded by deed number 8998 on May 6, 1913. Under a column headed “Remarks” appears this statement: “All minerals reserved including coal, iron, natural gas and oil. All grazing. Price List No. 6, Dated Feb. 25th, 1910. Office Sale.” Another photostatic exhibit shows a page from the deed record of Northwestern Improvement Company from which it appears that a deed was issued to Section 15 on May 6, 1913, number 8998, contract number 5261N, to John H. Krueger. The'form of the deed was designated as “D.D.” From testimony and other exhibits it appears that the form of deed designated as D.D. was a printed form of deed used by the Northwestern Improvement Company containing a reservation of all minerals in the language previously quoted.

The final exhibit of interest at this point is a photostatic copy of page 412 of a record of the Northwestern Improvement Company known as “the impression book.”A witness who was employed by the plaintiff at the time the records involved herein-were made, and still is so employed, testified regarding the making of plaintiff’s records as follows:

“After all payments were made on the contract the contract was — the purchaser’s copy of the contract would be-surrendered and a deed would be prepared and the deed number, the date-, form of the deed and the parties who checked it with the contract record and the deed record would be shown on that, on the Sales Slip, completion of the Sales Slip. After the deed was prepared, it was prepared on a form in indelible ink and typewritten portion was indelible ribbon and copy would be made in the Impression Book and notation made in the Deed record and then it would be presented to the executive department for completion, for execution, after which it would be returned to the Land Department and. be sent out to the purchaser or to the-grantee, by either registered mail or by express.”

The copy of the page of the impression, book shows that a deed was prepared on-form D.D., number 8998, contract number 5261N, dated May 6, 1913, purporting to-convey from the Northwestern Improvement Company to John IT. Krueger all of Section 15, Township 131, Range 90 in Morton County, North Dakota, containing-640 acres more or less, “excepting and reserving unto the grantor, its successors and assigns forever, all minerals of any nature whatsoever, including coal, iron, natural gas and oil, upon or in said land, * * '

The impression copy appears to have been made before the execution of the instrument, as no signatures appear thereon.

The appellant contends that the court erred in receiving in evidence and in considering the exhibits to which we have referred on two related grounds. First, that the record of the register of deeds is the best evidence of the contents of recorded instruments in the absence of the originals; and second, that if the record constitutes only secondary evidence it is the best secondary evidence and entitled to supremacy over private business records.

Appellant’s argument seems to be that the record of a lost deed in the office of the register of deeds is conclusive as to the contents of the lost instrument. He points to the provision of Section 31-0806 NDRC 1943 that:

“The record of such instrument, or a duly authenticated copy of the record, may be read in evidence with the same effect as the original, on proof by affidavit or otherwise that the original is not in the possession or under the control of the party producing such record or copy.”

The contention is that the words “with the same effect” mean that the record in all things takes the place of the lost deed; that the record therefore is protected by the parol evidence rule; and that neither parol nor other extrinsic evidence may be introduced to vary the terms of the record. We do not so construe the statute.

The phrase upon which the appellant relies, in slightly different form, came into our laws in Section 5696 of the Revised ■Codes of North Dakota, 1895, and read: '“with the like effect as the original.” It remained unchanged throughout the various revisions and compilations of the statutes until our 1943 Revised Code when the ■word “like” was changed to “same”. The ■reviser’s note in the original draft by the code commission states: “Revised for clarity without change in meaning.”

We have adopted the rule that where a general statutory revision has been made resulting' in the alteration of phraseology the change in phraseology will not be construed as altering the law unless it clearly appeared that there was a legislative intent so to do and in ascertaining such intention reference may be had to the prior statute. State v. Tjaden, N;D., 69 N.W.2d 272; Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 35 N.W.2d 137; State ex rel. Kositzky v. Prater, '48 N.D. 1240, 189 N.W. 334.

We find a direct answer to appellant’s contention that because of Section 31-0806, supra, extrinsic evidence cannot be introduced to show a mistake in the record of a lost instrument in Booth v. Tiernan, 109 U.S. 205, 3 S.Ct. 122, 123, 27 L.Ed. 907. Objection was made to the admissibility of evidence tending to show that there was a clerical error in the description of land as entered upon the record and .contained in a certified copy. The original deed was lost. The objection was based upon an Illinois statute authorizing the record of a deed or a certified transcript of the record to be used as evidence in place of a lost original and providing that it might be read in evidence “ ‘with like effect as though the original of such deed, conveyance, or other writing was produced and read in evidence,’ * * The ruling of the trial court to the effect that evidence as to the mistake in the description was competent was challenged on appeal and the supreme court said:

“The ruling of the circuit court on this point was correct. The language of the statute was intended merely to declare that the record of a deed, or a transcript from the record, though a copy only, and therefore in its nature merely secondary evidence, should nevertheless have the same effect, when competent as evidence at all, as the original itself, if it had been produced, upon the determination of the issues to be tried. It was not intended to declare that the record or a copy from it should, in law, be an original instrument for all purposes. The presumption is that as public officers generally perform their prescribed duties, accurately, that the ¡record, and all cer- ' tified transcripts from it, will be true copies of the original; but they are none the less copies on that account, and are made evidence only in lieu of the -original, and on the grounds on which secondary evidence is permitted to be given. And there is nothing in the statute, either expressed or implied, which forbids the party from showing by extrinsic proof, otherwise legitimate, what the contents of the lost original really were, where it is shown that the record itself, or a copy from it, is not a true copy. By the very terms of the statute, the record of a deed is not original evidence, for it can be used only on proof of the loss of the original deed, or that the latter .cannot, be produced by the party offering the. proof; and the object of the statute evidently -was to require recording, in the first place, as notice to subsequent purchasers, and in the second, to supply a convenient statutory mode and instrument of secondary evidence.” See also Nixon v. Cobleighj 52 Ill. 387; Harvey v. Thorpe, 28 Ala. 250, 65 Am. Dec. 344;. McIntyre v. White, 124 Ala. 177, 26 .So. 937; Sexsmith ,v. Jones, 13 Wis. 565; Thompson on Real Property, Permanent Edition, Section 4375.

In support of his contention that the record in the office of the register of deeds is the best secondary evidence and is entitled to supremacy, appellant relies upon the rule that the proponent of secondary evidence must produce the best secondary evidence which is in his power to produce. See 20 Am.Jur., Evidence, Section 404. That rule is not applicable here where a mistake of the recording officer is in issue. What the appellant would have us hold if we acquiesced in this argument is that in the absence of the original the record is conclusive. We rejected that contention in our discussion of the effect of Section 31-0806 NDRC 1943.

Jackman v. Lawrence Drilling and Development Company, 106 Kan. 59, 187 P. 258, 261, involved an oil and gas lease. The original lease had been lost and.it was contended that it had been, incorrectly recorded. The defendants introduced the i testimony of a number of witnesses to show the contents of the lost instrument. The trial court found for the defendants on the basis of this testimony. In sustaining the trial court the supreme court said:

“We start with the presumption, of course, that the register of deeds performed his duty properly, and that the record is correct. But this presumption is rebuttable. Zeiner v. Edgar Zinc Co., 79 Kan. 406, 99 P. 614. Mistakes sometimes occur in copying, and in comparing the original with the recorded copy. * * * The original instrument is primary evidence, and the recorded copy but secondary evidence. If a variance were shown to exist between the original as it was filed and the recorded copy, the former would prevail.”

Section 31-0801 NDRC 1943 provides in part that:

“A record of an act, condition, or event shall be competent evidence, insofar as relevant, if:
'“1. The custodian or other qualified witness testifies to its identity and the mode of its preparation;
“2. It was made in the regular course of business, at or near the time . of the act, condition, or event; and
“3. The sources of information and the method and time of preparation, in the opinion of the court, were such as to justify its admission.”

This section is an enactment of the uniform business records as evidence act. Its purpose is to enlarge the operation of the business records exception to the hearsay evidence rule and should be liberally construed. Loper v. Morrison, 23 Cal.2d 600, 145 P.2d 1; Fuller v. White, Cal.App., 193 P.2d 100. The sufficiency of the foundation to permit the admission of evidence under this statute is primarily for the trial court. Fargo Mercantile Co. v. Johnson, 47 N.D. 304, 181 N.W. 953. The ruling of the trial court on the admission or ’exclusion of records under this statute will not be reversed in .the absence of a manifest abuse. of discretion. Cantrill v. American Mail Line, Ltd., 42 Wash.2d 590, 257 P.2d 179. We find no such abuse of discretion here.

We have reached the conclusion that the trial court properly'admitted in evidence the exhibits to which we have referred to show the contents of the deed issued by the Northwestern Improvement Company on May 6, 1913, conveying to John H. Krueger all of Section 15. We agree with the trial court that the evidence establishes that the original deed contained the provision heretofore quoted excepting and reserving to the grantor all minerals; that the deed was erroneously recorded in the office of the register of deeds in that the record shows only a reservation of coal and iron and that the original deed has been lost.

Up to this point we have determined that the Northwestern Improvement Company of New Jersey sold to W. E. Scripture the surface of Section 15 on contract which had the effect of severing the title to the minerals from the surface. The vendor retained title to the minerals. The vendee •obtained an equitable title to the surface. The vendee assigned the contract to John H. Krueger and upon compliance with the terms of the contract by the assignee, a ■deed was issued conveying to him the legal title to the surface and excepting and reserving the fee simple title to the minerals in the grantor. Due to an error in recording the deed the records show an exception and reservation of only coal and iron.

We now consider the contention of the appellant that he is an innocent purchaser relying upon the record title and as such he is now the owner of the surface and of all of the minerals except coal and iron.

When the Northwestern Improvement Company of New Jersey contracted to sell th'is latid’tó W.- E.-Scripture it severed the title to the minerals from the equitable title to the surface. State v. Northwestern Improvement Company, 72 N.D. 393, 7 N’.W.2d 724. When the vendor in that contract executed and delivered its deed pursuant thereto to John'H. Krueger, assignee of the vendee, • the exception and reservation, of the minerals in the deed completed' the severance of the two -estates and created a fee simple estate in the minerals⅜which was retained by the New Jersey corporation. Beulah Coal Mining Company v. Heihn, 46 N.D. 646, 180 N.W. 787'.

A comprehensive search has disclosed no decisions directly in point on the responsibility of a grantor for a mistake in the recording of an instrument containing an exception or reservation in favor of the grantor. Decisions bearing obliquely on the .problem are almost equally divided. See annotation 70 A.L.R. 595. Most of, these decisions involve conflicting rights of grantees. and .innocent purchasers. The principles applied and the reasoning advanced .in support of the divergent views of the .courts are -well stated in Tiffany, Real Property, Third Edition, Section, 1273, as follows:

“The courts of the different states are divided upon the question as -. to who must suffer the loss occasioned by an error made by the officer in recording a conveyance deposited with him for record. Some courts hold that, a grantee, by lodging the instrument with the proper officer for record, acquits himself of all responsibility as to the actual recording, and that from that time it is notice to subsequent purchas- ' ers of what it contains, and not of what the recording officer may make it show on the record. This view is usually based upon the language of the recording statute of the particular state, providing in effect that a conveyance shall be operative as a record, or as against a subsequent purchaser, from the time that it is filed or deposited for record. Other courts hold that subsequent purchasers are bound only by what the records show, and that the grantee in a conveyance, in order absolutely to guard against mistakes by the recorder, and to insure the preservation of his rights as against subsequent purchasers, must ascertain that the recording is correctly done. This latter view is usually based on the theory that the recording officer is to be regarded, in respect to the record of any particular instrument, as the agent of the beneficiary under the instrument, and that the latter is in a position, by the exercise of a considerable degree of diligence, to ascertain whether the officer has correctly performed his duty, which a subsequent purchaser, even by the exercise of the greatest diligence, could not possibly do. This view has occasionally been adopted even when the statute in terms provided that the instrument shall operate as notice from the time of its filing for record.”

Similar discussions are found in Thompson on Real Property, Permanent Edition, Sections 4371, 4372, and 4373; Patton on Titles, Section 39; Jones on Mortgages, Eighth Edition, Sections 634, 636; 45 Am. Jur., Records and Recording Laws, Sections 113-117.

We have difficulty in applying to the responsibility of the grantor for an error in recording a deed the reasoning of either line of authority applied in controversies between the grantee and an innocent purchaser. The plaintiff argues that when the deed was deposited in the office of the register of deeds the actual contents constituted constructive notice to subsequent purchasers even though the register of deeds omitted some of the contents when the deed was copied into the record. This argument is based on Section 47-1908 NDRC 1943 which provides:

“An instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the register’s office with the proper officer for record.”

However, section 47-1945 provides:

“The deposit and recording of an instrument proved and certified according to the provisions of this chapter are constructive notice of the execution of such instrument to all purchasers and encumbrancers subsequent to the recording.”

These sections must be construed together in determining their effect in providing constructive notice. Their proper construction is that an instrument gives only temporary constructive notice of its contents when deposited in the office of the register of deeds and that when the instrument is recorded the record for purposes of constructive notice relates back to the date of deposit and as of that time is constructive notice of the contents actually and correctly recorded. Cady v. Purser, 131 Cal. 552, 63 P. 844, 82 Am.St.Rep. 391 ; Dougery v. Bettencourt, 214 Cal. 455, 6 P.2d 499; Sinclair v. Gunzenhauser, 179 Ind. 78, 98 N.E. 37, 100 N.E. 376; Whalley v. Small, 25 Iowa 184; Terrell v. Andrew County, 44 Mo. 309.

The verb “record” as used in our recording statutes means to transcribe or copy the instrument deposited with the register of deeds so that a copy of the instrument is made a part of the permanent records of the office. Lincoln County v. Twin Falls North Side Land & Water Co., 23 Idaho 433, 130 P. 788; Dougery v. Bet-tencourt, supra; Cady v. Purser, supra; Miller v. Bradford, 12 Iowa 14; Chamberlain v. Bell, 7 Cal. 292, 68 Am.Dec. 260; Shimmel v. People, 108 Colo. 592, 121 P. 2d 491.

In Cady v. Purser, supra, the court considered the effect of a statute similar in text and identical in meaning with our Section 47-1908 and it was held that in order for a recorded instrument to be constructive notice to subsequent purchasers the instrument must be actually recorded; that recorded means transcribed in some permanent book and that a mere deposit of the instrument with the recorder is not sufficient. Also Dougery v. Bettencourt, 214 Cal. 45S, 6 P.2d 499.

In Terrell v. Andrew County, 44 Mo. 309, the court said:

“The statute says that when the deed is certified and recorded it shall impart notice of the contents from the time of filing. Certainly; but this is to be understood in the sense that the deed is rightly recorded, and the contents correctly spread upon the record.”

We believe that the California and Missouri cases were correctly decided and when our statutes above quoted are considered together we are impelled to reach the same conclusion.

We are aware that the Supreme Court of South Dakota in Parrish v. Mahany, 10 S.D. 276, 73 N.W. 97, 66 Am.St.Rep. 715, reached the opposite conclusion under statutes similar to ours. However the court appears to have only considered the statute providing that an instrument is deemed recorded when deposited in the register of deeds office. Other statutes are not mentioned in connection with this point.

The plaintiff cites and quotes from Atlas Lumber Company v. Canadian-American Mortgage and Trust Company, 36 N.D. 39, 161 N.W. 604. In that case it appears that the clerk of the district court in entering a satisfaction of a mechanic’s lien erroneously showed the wrong lien as having been satisfied. There was no question but that the lien so erroneously satisfied had been properly filed and recorded. In the syllabus this court laid down the rule that:

“One who is required to file an instrument for record as a protection to subsequent purchasers and incum-brancers is not chargeable with the consequences of errors committed by the recording officer in entering it as affecting property not embraced in the instrument.”

The principle of law thus stated has no application to the case under consideration. The plaintiff quotes language from the opinion which it argues is applicable here. ' After commenting that recording statutes operate to the advantage of subsequent purchasers and encumbranc- ■ ers, the court said:

“In view of the purpose for which recording statutes are adopted, we think it more just and more consonant with reason to hold that the consequences of the failure of a recording officer to perform his statutory duties with precision and accuracy should be visited rather upon those in whose interest such statutes are enacted than upon those who have in all ways complied with the statutes requiring the filing of instruments for record.”

That language is a part of the reasoning of the court and must of course be read in the light of the problem that the court was then considering. But even when considered as a general statement of the law, it is not applicable to the facts in this case where the grantor reserved an interest in the real estate which it was its duty to protect as against the statutory rights of a subsequent purchaser in good faith and for valuable consideration.

The plaintiff points out that the Northwestern Improvement Company of New Jersey was the grantor in the deed to John H. Krueger, the appellant’s remote grantor, and argues that regardless of where a loss should fall that results from an error of the register of deeds as between the grantee who had the deed recorded and subsequent innocent purchasers, the Northwestern Improvement Company of New Jersey had no duty to record the deed and did not record it and is as innocent as subsequent purchasers of the Krueger title. It is true that most courts that fix the liability for loss on the grantee do so either on the theory that he possessed and controlled the deed and had an opportunity and duty to see that it was properly recorded or that the register of deeds was the grantee’s agent for the purpose of correctly recording the deed and the grantee is therefore liable for his mistakes. The grantor in this case has a responsibility that an innocent purchaser does not have. It, as well as the grantee, is a beneficiary under the deed. It executed and issued the instrument creating two estates in real property where only one had previously existed. We have no statute fixing either the duty or' responsibility for placing a deed of record.' In order to determine the responsibility of one who issues a deed which has the effect of creating two estates, one of which he retains while conveying the other to the grantee, we must turn again to our recording statutes.

Section 47-1941 NDRC 1943 provides:

“Every conveyance of real estate not recorded as provided in section 47-1907 shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any part or portion thereof, whose conveyance, whether in the form of a warranty deed, or deed of bargain and sale, or deed of quitclaim and release, of the form in common use or otherwise, first is recorded, * *

Section 47-1907 thus referred to provides :

“An instrument entitled to be recorded must be recorded by the register of deeds of the county in which the real property affected thereby is situated.”

The purpose of this section is to prescribe the duty of the register of deeds. We have already discussed the meaning of the verb record and found .that it means not only to file but also to transcribe or copy the instrument in the proper record book. . It follows that Section 47-1941, above quoted', in effect provides that every conveyance of real estate not filed and transcribed is void as against any subsequent purchaser in good faith. .. .

Section'47-1942 provides:

“The term ‘conveyance’ as used in section 47-1941 shall include every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered, or by which the title to any real property may be affected, except a will or power of attorney.”

An exception or reservation such as the one involved in this action affects the title to real estate and falls within the scope of this .statutory'definition of conveyance. Bradley v. Walker, 138 N.Y. 291, 33 N.E. 1079; Wayt v. Patee,. 205 Cal. 46, 269 P. 660.

The deed from the Northwestern Improvement Company to Krueger had two beneficiaries, the grantor and the grantee. In the former it created a fee simple estate in the minerals separate and apart from the surface. In the latter it created a fee simple estate in the surface and under our . statutory definition of “conveyance” it was in effect a conveyance of each estate. Under the provisions of Section, 47-1941, above quoted, if not recorded it was void, as against any subsequent purchaser in good faith. Insofar as it was a conveyance of the property reserved and excepted it was never recorded and afforded no notice to innocent purchasers.

The argument that it was the duty of the grantee and not the grantor to record the deed and see that it was properly transcribed in the records is not tenable here. The deed operated as a conveyance to the grantor in that it affected an interest in real property which the grantor owned. As against an innocent purchaser the deed was void as to that interest unless that interest was shown of record. The plaintiff’s grantor executed and issued the deed. It created the exception and reservation by which plaintiff now claims title to all of the minerals. We reach the conclusion that it was the duty of the grantor to protect its interest against any subsequent purchaser in good faith by making certain that the reservation and exception' in the instrument which it had issued was properly recorded. The plaintiff’s grantor having failed to so protect its interest, it had no interest in the land in question other than in iron and coal to convey to the plaintiff which could be asserted against innocent purchasers. As to all minerals except coal and iron the defendant, Bruce Arthur Norris, became a subsequent purchaser in good faith and for value. His title thereto must prevail.

While we have confined our factual discussion of title to Section IS, it appears from the record that the controlling facts regarding the title to all land involved in this action are similar to those here discussed. The legal principles which we have here discussed are equally applicable to those facts and govern the result as to all lands involved in this action. The judgment appealed from is reversed. The case is remanded to the district court for entry of judgment conformable to this opinion.

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


text:
    Ole N. NESET and Mabel R. Neset, Plaintiffs and Respondents, v. M. B. RUDMAN and George Neset, and all other persons unknown claiming an estate in, or lien or encumbrance upon the real property described in this complaint, Defendants, M. B. Rudman, Defendant and Appellant, George Neset, Defendant and Respondent.
    No. 7563.
    Supreme Court of North Dakota.
    Feb. 3, 1956.

      Burk & O’Connell, Williston, for plaintiffs and respondents and defendant and respondent .George Neset.
    Bjella, Jestrab & Neff, Williston, for defendant and appellant.
   MORRIS, Judge.

The plaintiffs brought this action on October 27, 1954, to determine adverse claims to the Southwest Quarter of Section 19, Township 157, Range 94 in Mountrail County. The only named defendant was M. B. Rudman. Upon motion of Rudman, George Neset was added as a second party defendant.

The complaint is substantially in statutory form. Section 32-1704, NDRC 1943. The defendant Rudman answered denying generally the allegations of the complaint.. By way of a fuilher defense and counterclaim, he alleged that on the tenth of August 1949 he purchased and,secured an oil and gas lease from George Neset, the owner of the land in question, and further alleged that the plaintiffs represented to Rudman that George" Neset was the owner of the land; urged Rudman to purchase an oil and gas lease from him; and that the plaintiffs are now estopped from asserting title to the property as against the lease.

The plaintiffs by way of reply allege that they are the owners of the property; that they are husband and wife and entered into possession in 1908; and that they occupied the property as their home and homestead continuously from 1913 until May 8, 1954. They further allege that agreements to convey the land to George Neset, if- any, were not reduced to, writing or subscribed 'by the plaintiffs and are barred by Section 47-1001, NDRC 1943 and Section 47-1805, NDRC 1943.

The trial court found that the plaintiffs were the owners of the property in fee simple and that Rudman’s oil and gas lease was null and void. Judgment was entered quieting title in the plaintiffs. From this judgment Rudman appeals and demands a trial dé novo.

.The record shows that the rights, if any, which the plaintiffs have and which they assert to this land are entirely separate and distinct from each other. Therefore the evidence and the law with respect to the plaintiffs’ claims will be considered separately. The rights of Mabel R. Neset rest exclusively upon her relationship __ as spouse of the owner with whom-she made a home upon the land until May 8, 1954.

A written stipulation of the parties was entered into through their respective counsel and admitted as an exhibit at the trial. It pertains to the testimony of the plaintiff, Mabel R. Neset, who was unable to be present. In this stipulation it was stated that if she were-present s-he would testify that she moved into a dwelling house on the land and continuously resided there with her husband, Ole N. Neset, from 1913 until May 8, 1954, and that since that date she has not resided on the land. It is further stipulated: ■

“She is not a record owner of the property and any rights she may have had in the property she acquired under the homestead laws of the State of North Dakota.”

A wife as such has no title or estate in the homestead owned by her husband but she has a right to reside thereon until she abandons it or joins with her husband in alienating it. Kuhnert v. Conrad, 6 N.D. 215, 69 N.W. 185; Roberts v. Roberts, 10 N.D. 531, 88 N.W. 289; Helgebye v. Dammen, 13 N.D. 167, 100 N.W. 245. The trial court" found that at the time the oil and gas lease was executed the plaintiffs were living on and occupying the land as a homestead -but made no -finding with respect to abandonment. When the stipulation and the allegations of the complaint are considered in connection with the testimony of Ole N. Neset it is clear that his wife had no homestead right or interest in the land when this action was commenced.. He testified to the effect that his son purchased the land in question and two other quarter sections of land from him in 1947 or. 1948 and that the son had lived with the-father as long as the latter had lived there and that the son continued to live thereafter Mr. and Mrs. Neset moved into-Tioga. The transcript further shows this:;

“Q. Mrs. Neset left the SWj4 of 19 at the same time in May of last year and' you both live together now in Tioga? A. Yes.
“Q. That’s your home now isn’t it Mr. Neset? A. Yes, now it is.”

It is clear that the plaintiffs' abandoned' the homestead when they left the farm to-the possession of a son and moved to Tioga. Since Mrs. Neset never had anything but a. homestead right in the property, when she-abandoned that homestead for a new home-in Tioga there remained in her no right,, title, or interest in the land.

In State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767, 787, we said:

“Under the express terms of the statute [Section 32-1701, NDRC 1943] it is only a person who has ‘an estate or an interest in, or lien or encumbrance upon real property’ who may maintain: an action to determine adverse claims-thereto. It follows that a person who-has no estate or interest in, or lien or encumbrance upon the real property may not maintain an action to determine adverse claims thereto.”

In this case Mabel R. Neset, having abandoned the homestead right which she once had prior to the commencement of the action, has no right, title, or interest in the-land and no right to maintain an action to quiet title with respect thereto. Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227.

We will now consider the facts and the law as they apply to Ole N. Neset. During all of the times pertinent to this action he was the record title owner to the land involved therein. He and his wife lived on and occupied the land as their homestead until May 8, 1954, when they abandoned it and moved to Tioga. In 1947 or 1948 Ole sold the land to his son George Neset, who had lived with his parents since childhood, who was then about thirty years of age. At the same time he sold two adjacent quarter sections of land to George. Ole and his wife gave George a deed to these two tracts but apparently the transaction regarding the home.quarter was entirely verbal. After May 8, 1954, George continued to live on the farm. The record is silent as to the consideration that was to be paid but George testified that he still owed his father money on the transaction. On August 10, 1949, George Neset-executed the oil and gas lease that is under attack. This lease covered the three quarter sections of land that Ole had sold to George. George received all of the delay rentals provided for in the lease. Ole contends that the lease is void because George, the lessor, had no title to the land at the time the lease was made. He asserts that George had no title because the land was a homestead and Mabel R. Neset, the wife, did not join in the sale to him and that the contract under which George purchased the land being wholly oral was void as being violative of the statute of frauds, Section 47-1001, NDRC 1943.

This is an action to determine adverse claims and is therefore essentially equitable in nature. Northwestern Mutual Savings and Loan Association v. Hanson, 72 N.D. 629, 10 N.W.2d 599; Udgaard v. Schindler, 75 N.D. 625, 31 N.W.2d 776; Mueller v. Mercer County, N.D., 60 N.W. 2d 678.

With respect to the statute of frauds it appears that there was no compliance in the first-instance with Sections 9-0604 and 47-1001, NDRC 1943, and that the contract by which the land was sold to George Neset was void unless, at the time the lease in question was made, there had been sufficient performance to take the contract out of the operation of these statutes. See Brey v. Tvedt, 74 N.D. 192, 21 N.W.2d 49; Henry S. Grinde Corp. v. Klindworth, 77 N.D. 597, 44 N.W.2d 417; Fried v. Lonski, 48 N.D. 1023, 188 N.W. 582; Syrup v. Pitcher, N.D., 73 N.W.2d 140. There was part performance on the part of George Neset but the nature and extent of that .performance is not shown by the record and it is impossible to determine therefrom whether the part performance was sufficient to take the transaction out of the operation of the statute. Were this point vital to a decision of the case, we would remand the record for the taking of further testimony. We do not do so because, as will appear by our further discussion, the statute of frauds is not a controlling issue.

Turning now to the question of the homestead and its effect upon the contract by which Ole N. Neset sold the land to his son, w.e find that a conveyance or encumbrance of a homestead not executed by both the husband and the wife is void. Dixon v. Kaufman, 79 N.D. 633, 58 N.W. 2d 797 and cases cited therein. Also Hoffer v. Crawford, N.D., 65 N.W.2d 625, and Dockter v. Crawford, N.D., 65 N.W.2d 691. Likewise, a contract executed by the husband alone for the sale of the homestead of himself and wife is void. Silander v. Gronna, 15 N.D. 552, 108 N.W. 544, 125 Am.St.Rep. 616; Larson v. Cole, 76 N.D. 32, 33 N.W.2d 3251

The defendant Rudman contends that even though the contract by which Ole N. Neset sold the land to his son is void as being violative of the statute of frauds or the law governing the conveyance of homesteads, both the father and the son are estopped to deny the title of George Neset and the oil and gas lease which he executed as against the defendant Rudman. In support of this contention he points to the law of equitable estoppel and to Section 31-1106, NDRC 1943, which provides:

“When a party, by his own declaration, act, or omission, intentionally and deliberately has led another to believe a particular thing true and to act upon such belief, he shall not be permitted to falsify it in any litigation arising out of such declaration, act, or omission.”

He bases his contention upon the following facts in addition to those already set forth. Sometime before the execution of the lease in question the defendant Rudman had employed R. O. Burbidge to secure oil and gas leases on land in the vicinity of the Neset farm. Ole N. Neset was well known in the neighborhood. Burbidge got Mr. Neset to accompany him in his work of securing leases. In the morning he would call for Ole N. Neset at the farm. During the day they would drive around from farm to farm and Neset would introduce Bur-bidge to prospective lessors. According to Burbidge, Ole N. Neset told him that he, Neset, did not own any land; that 'he would have to see George to get an oil and gas. lease on the farm. Neset says he “Didn’t speak to me about leasing mine.” But he further testified as follows:

“Q. Did you tell Mr. Burbidge that George owned your land? A. I told Mr. Burbidge that George made a deal for it, yes.
“Q. And that therefore he should get an oil and gas lease from George? A. I told George to lease that when he leased his own.
“Q. You told Mr. Burbidge he should get the oil and gas lease from George, that the property belonged to George? A. I don’t remember just the words.
“Q. In substance that’s what you told him? A. I told him that George had made the deal for 3 quarters.
“Q. You must have told Burbidge that the property belonged to George because you were driving Burbidge around ? A. Yes.
“Q. And Burbidge wanted to lease your land didn’t he ? A. I don’t know what was between me and Burbidge but I told George he could lease mine when he leased his own.”

Ole N. Neset also testified: “I never told him that he would have to have George sign a lease. All I told George was to lease the land when he leased his own.”

“Do you recall having told other people that George had bought the land from you? A. Yes.
“Q. You have told other people? A. Yes.
“Q. And that George owns the land? A. I have told them that George made a deal for the land, yes.
“Q. He bought the land? A. Yes.
“Q. And you told Mr. Burbidge that didn’t you? A. Yes.”

George Neset testified regarding the circumstances under which he executed the oil and gas lease. Ole N. Neset and Burbidge came into the town of Tioga where the father went into a building and he got his son. Both went out to the car together but the son does not remember whether the father stayed in the car or not during the ensuing conversation. Burbidge began talking about leasing the land. George said he had bought the land. He executed the lease. Burbidge had a plat book from which he obtained the descriptions. George complies with the Agricultural Stabilization and Conservation Program and told the people in the program office that he owned the property. Since the lease was executed he has put the delay rentals in his bank account. His father has paid the taxes. In a deposition of Ole N. Neset taken on cross-examination before trial he testified that he told Burbidge that he would have to have George sign a lease.

It is clear from the evidence that the plaintiff, Ole N. Neset, represented to Burbidge that George Neset owned the property in question; that he told George Neset to execute the lease for him; and that George, pursuant to his father’s instructions, did execute the lease.

The effect of Section 31-1106, NDRC 1943 above quoted is to enact into substantive law the equitable principle of estoppel and render it cognizable in both law and equity. In an oft quoted passage from Dickerson v. Colgrove, 100 U.S. 578, 25 L.Ed. 618, it is stated that:

“The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden.”

The defense of estoppel may be invoked against a plaintiff who seeks to determine adverse claims to real estate. 44 Am.Jur., Quieting Title, Section 66; 74 C.J.S., Quieting Title, § 41.

In an action to determine adverse claims affirmative relief may be granted to remove a cloud which results from a title that cannot be asserted or enforced because of circumstances creating an estoppel. 44 Am.Jur., Quieting Title, Section 33; see cases cited in Annotation: Cloud on Title, e. Title and liens barred by estoppel, 78 A.L.R. page 119.

In Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35, 38, the plaintiffs, who were husband and wife and owners of the property in dispute, sought to quiet title against the rights of the defendant who claimed to be a purchaser of the property under contract which the plaintiffs claimed contravened the statute of frauds and the statute prescribing the manner in which a conveyance of a homestead must be executed. The defendant contended that the plaintiffs by their conduct were estopped from asserting the invalidity of his contract. This court said:

“Neither the statute of frauds nor the various statutory provisions enacted for the protection of a homestead claimant can be held to do away with the general equity doctrine of estoppel in pais. While it is true some courts have held to the contrary, the weight of modern authority is to the effect that the doctrine of equitable estoppel will be applied to a married woman as well as to a feme sole. The doctrine is not invoked to render valid a contract which is void under the statute of frauds or under statutes for the benefit and protection of the homestead claimants, but it is invoked to prevent the successful perpetration of fraud by preventing wrongdoers from urging the provisions of such statutes to shield them in their tortious conduct. We are agreed that under the facts as disclosed by this record the appellants should be, and are, estopped from asserting, title to the premises as against the respondent. * * *
“It was never intended that the homestead laws should be so construed as to permit their owners to perpetrate a fraud, either actual or constructive, upon the rights of others.” See also Tiffany on Real Property, Third Edition, Section 1235; Thompson on Real Property, Permanent Edition, Section 2619; American Law of Property, Section 5.102. ’

It is argued that the defendant Rudman had constructive notice that Ole N. Neset was the record owner and should have relied on the record to ascertain who had the right to lease the land. This argument carries its own refutation when it appears as it does here that the record owner disclaimed his title and it was upon his statements that the lessee relied in taking the lease. These factors strengthen rather than weaken the estoppel. 4

It is clear that at the time this action was brought Mabel R. Neset had no interest in the land, homestead- or otherwise, and that Ole N. Neset is by his representations and conduct estopped from asserting any right, title, or interest in the land as against the defendant M. B. Rudman and that the ■oil and gas lease herein described is as to the interests of the plaintiffs a superior, valid, and existing lease.

The judgment appealed from is reversed and the case is remanded for entry of judgment consistent herewith.

BURKE, C; J., and SATHRE, JOHNSON, and GRIMSON, "JJ., concur.