Movius v. Propper

Eisk, J. (After stating the facts as above). It will be seen from the above facts that plaintiffs deraign whatever title they have through a sheriff’s deed issued pursuant to an execution sale under a purported judgment rendered in an action wherein they were plaintiffs and one Ralph Maxwell was defendant, a transcript of which purported judgment was duly filed and docketed on April 10, 1905, in Sargent county, and thereupon such judgment, if valid, became a lien on all lands then owned by Maxwell in such county. Appellant claims, however, that Maxwell did not own such land at that time, but that he had sold such undivided one-half interest to him in the month of May, 1904, by an executed oral contract. This is challenged by respondents, but appellant’s counsel contend that respondents are not in a position to thus [457] challenge said oral sale and purchase, for the alleged reason, among others, that their so-called judgment against Maxwell is not a judgment at all, but merely an order for judgment. If this be true, then of course respondents have no stand in court, as they must recover, if at all, on the strength of their alleged title, which is based solely on the sheriff’s deed, and this deed in turn is wholly dependent for its validity on the judgment aforesaid. We will first consider the question whether respondents recovered a judgment against Maxwell as alleged by them. As before stated, it is asserted by appellant’s counsel that such alleged judgment was nothing more than a mere order for judgment, citing and relying in support thereof on McTavish v. Great Northern K. Co. 8 N. D. 333, 19 N. W. 443. On the contrary, respondent’s counsel, while conceding that it is not strictly correct in form, contend inasmuch as it was treated as a judgment and duly entered at length in the judgment docket, and inasmuch as it determines the issues involved in the action and fixes definitely the amount plaintiffs are entitled to recover from defendant, that it is a sufficient judgment. The case of Hagler v. Kelly, 14 N. D. 218, 103 N. W. 629, is claimed by respondents to settle the point in their favor. We do not thus construe the opinion. The case at bar is not distinguishable from the McTavish Case in the form of the order for judgment. In the case at bar the language of the order is, “Ordered, that plaintiff have judgment against the defendant for the sum of $616, . . . together with the costs and disbursements of this action, to be taxed by the clerk. Let judgment be entered accordingly.” In the Hagler Case the language used in the order was, “It is hereby adjudged that the plaintiff recover of the defendant the sum of . . . $25.46, and the clerk of court is hereby directed to enter judgment accordingly.” In the McTavish Case the question arose in a different manner from that in the case at bar. There, the question merely involved a question of practice, viz., the right to appeal. Here it involves property rights of long standing, claimed to have been acquired through execution sale under the alleged judgment. In the McTavish Case the question was raised by a party to the proceeding, while here it is raised by a third person, — a stranger to the record. As well stated by Judge Engerud in Hagler v. Kelly, supra, at page 223 of the opinion: “The situation with which the court was dealing on the appeal in that case [McTavish [458] v. Great Northern R. Co. supra] was the same as that which existed in the trial court when the irregularity in question was discovered. The transaction was fresh and the litigation still in actual progress. It will be readily seen that under such circumstances the propriety and sufficiency of the acts of the clerk to accomplish the intended purpose were to be tested by an entirely different standard from that which must be applied in the case at bar. That case simply involved a question of practice in a pending litigation. In this ease we are dealing with rights to property of long standing, acquired or supposed to have been acquired through legal proceedings. Those proceedings are attacked for irregularity of procedure of a purely formal nature, which neither denied nor prejudiced any substantial right of any adverse party.” Whether the court, as it was constituted at the time the McTavish Case was decided, would have held the same as it did if the facts were as disclosed in the case at bar, .is very doubtful. At any rate we are constrained to hold, and do hold, that such rule should not be enforced at the behest of a stranger to the record, and especially after such a long lapse of time during which respondents, in reliance upon the regularity of the judgment and the proceedings thereunder, expended large sums of money, and this with appellant’s knowledge and implied consent. Indeed, we are disposed to the belief that at most the judgment was merely irregular or voidable, and not void; and that even though appellant might, if he had acted promptly, have questioned the same, he is, on account of the above facts, now estopped from so doing. We reach a conclusion on this point, therefore, adverse to appellant’s contention. We will next consider the question whether appellant, in fact, purchased Maxwell’s interest as alleged by him, for if he did, such fact would settle this litigation in his favor. The trial court found that no siich purchase took place, and after a careful review of the evidence we are fully agreed that such finding was correct. We deem it useless to narrate the testimony in this opinion bearing on this issue of fact. Suffice it to say that the testimony of appellant and his witnesses is of an unsatisfactory nature, while that of the respondents and their witnesses is clear, persuasive, and in full accord with every material, if not controlling, circumstantial evidence against appellant’s contention, and which he has not satisfactorily explained away. [459] The only remaining question requiring consideration, in view of the above conclusions, is the matter of the accounting. The trial court found that there was a balance due from appellant to respondents of $42.85. This was arrived at by crediting each party with payments of principal and interest on the contract with the state, as well as taxes paid by each, and after computing interest on the various items, a balance was -struck between them. Appellant contends that the lower court erroneously allowed certain credits to respondents and disallowed certain proper credits to which he was entitled. Respondents were allowed credits, with interest, of only $859.99, instead of $1,305.64, as stated in appellant’s brief, and appellant expressly concedes that such credit should be $860.85. Appellant was allowed credits, with interest, aggregating the sum of $1,305.64. This should have been $1,320.92 as claimed by appellant. This difference is, no doubt, the result of an oversight in not allowing for the taxes paid by appellant in the years 1903 and 1904 as stipulated at the trial. The trial court properly refused any credits to appellant for the alleged improvements made on the land by him. This was proper. There is no competent proof of the value thereof, and furthermore it does not appear that they tend to enhance the value of the property, and they were evidently made for the sole benefit and convenience of appellant. Hence he is not entitled to any credit therefor. Gjerstadengen v. Hartzell, 9 N. D. 268, 81 Am. St. Rep. 575, 83 N. W. 230. We think the finding as to the value of the appellant’s use of the premises is in accordance with the evidence, and consequently such finding will not be disturbed. The case was tried in the court below upon the theory that he should account to plaintiffs for such use, and this court in deciding the case will not permit a change in the theory of the case thus adopted by the parties in that court. The judgment will be modified by reducing the balance found due plaintiffs from defendant from $42.85 to $13.78, being one half of the-balance we find existing on such accounting, and as thus modified it will be affirmed, neither party to recover costs on the appeal.