Bismarck daily tribune., 1912-06-20
Supreme Court

In the Supreme court, STATE 10 VI
North Dakota, April Term, 1912. z
Alfred F. Lands, Respondent, vs.
John w. knight and Lulu knight, Ap'
pellants. .&sSf
Sec ton 1929 of the R. c. 1905 pro-
| viding for trials de nova In the su-
| preme court on all appeals in cases
| not properly triable with a jury, also
provides that the supreme court may,
if it deems such course necessary to
| the accomplishment of justice, order
| new trial of the action.
HELD, that where, as in the case at
| bar, the record is in such condition
that an intelligent disposition of the
! case in this court is rendered impossi-
BILE on account of the vague, indeh'
mite and uncertain state of the testi-
mony, a new trial will be ordered in
the district court.
(Syllabus by the cour)
Appeal from district court, Foster
county, Burke, J.
Action in foreclosure. From judg-
ment In plaintiffs favor, defendants
appeal.
New trial ordered.
s. E. Ellsworth, of jamestown, N.
D.. for appellants.
Edward p. Kelly, of Darlington, N.
D., and Lee Combs, of Valley City,
for respondent.
Opinion by Fisk, j., Burke, j. being
disqualified did not participate.
In the Supreme Court, State Of
North Dakota, April Term, 1912.
D. H. Ugland, Respondent, VS.. Far
mers and Merchants State Bank Of
Knox, and William A. Hanson, Appel.
lants. ~,
l. Plaintiff U. and defendant H.
both claim to have purchased Ms.
equities in certain land held by him
under the usual crop payment con-
tract for deed. Defendant bank holds
the legal title in trust merely and as
security for the balance due on the
purchase price under an executory
contract of sale made by the banks
grantor to N. The action is for spe-
cific performance as against defend
ant bank, and to quiet title as against |
defendant H. The evidence discloses
tina for a valuable consideration N. |
sold and assigned in writing, with his
grantor's consent, his contract to pur-
chase, to plaintiff, but that prior there
to defendant H. had entered into
verbal agreement with H. for the pur-
chase OF the title to such land or of
Ms. interest therein, and paid the
sum of one dollar only on the agreed
purchase price. This verbal under
standing did not authorize H. to order
into possession, although he subse~
quently did, through his servant, oc-
cupy the buildings on the premises
with Ms acquiescence, but under an
separate and distinct agree
ment from the alleged sales contract.
Evidence examined and HELD, that
the trial court properly gave judg-
ment in plaintiffs favor.
Z. The verbal agreement between
n .and defendant H. was never exc
cuted by either party md was within
the statue Of frauds, and prior to the
plaintiffs purchase. N. repudiated
and abrogated tae same after making
several unsuccessful efforts to get H.
0 comply Herewith, and rendered
back such dollars payment.
HELD, that such verbal agreement
being vollable, Ms election to declare
It void dlvested H. of all rights there
under. HELD, further, that Ms act
in selling to plaintiff was, in any ev-
snt, an effectual abrogation of such
agreement.
8. The statute OF frauds may be
invoked not only by the immediate
parties thereto, but by those in priv
ty with them.
4. Held, for reasons stated in the
opinion. that plaintiff had the right
10 and did properly invoke tie sta
ute of frauds as against the verbal
and the alleged claims of H.
hereunder.
S. The theory adopted by the par
lies in the court below and pursuant
70 which the trial was there conduct
I'd, cannot be departed from for the
first time in the supreme court.
6. On June 4, 1909, plaintiff tend
cred to defendant bank the sum of
b2615.O0, being the balance of the pur-
chase price then due on the contract.
Such tender was in the form of
cashiers check instead of currency,
but no objection on this ground was
made.
HELD, that by such failure to OBJ
|ect, the bank, by the provisions OF
Section $3.50 R. c. 1905, waived the
mode of suci tender.
Z. Under the provisions of Rev.
Codes, Section $3.50, relating to tend
er and deposit and notice thereofl
it was unnecessary to state in such
notice that the bank in which such
deposit was made was Of good repute.
Nor was it necessary for plaintiff to
prove such fact, as, in the absence Of
proof to the contrary, the presump-
ton prevails that such bank was of
good repute.
Syllabus by the court.
Appeal from district court Pierce
County, Burr, J.
From a judgment in plaintiffs fav-
Or defendants appeal.
Affirmed.
F. T. Cuthbert of Devils Lake. for
appellant.
l. r Nostdai NJ Ruphy and Chris