# Erickson v. Wiper

> North Dakota Supreme Court · March 6, 1916 · 33 N.D. 193

URL: https://www.frixlaw.com/law-library/cases/6737594

## Case

- **Full name:** ANNA ERICKSON v. A. C. WIPER
- **Court:** North Dakota Supreme Court
- **Decided:** March 6, 1916
- **Citations:** 33 N.D. 193; 157 N.W. 592; 1916 N.D. LEXIS 108
- **Precedential status:** Published
- **Opinion:** Dissent by Burke
- **Judges:** Burke, Christianson, Goss
- **Cited by:** 91 later opinions in the Frix Law Library

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## Opinion text

Burke, J.,
dissenting. The majority opinion makes no attempt to justify or deny the miscarriage of justice presented by the record in this case; it lays the blame upon the shoulders of the jury, falling back upon the platitude that it is better for an innocent litigant to suffer than that the court should invade the province of the jury.
With this doctrine I have no quarrel, but there is another doctrine equally important, that the majority is overlooking, and that is that every man is entitled to a fair and impartial trial before a jury of his peers.
A trial of an issue of fact before a jury is a serious and solemn, if not a sacred, thing. It is the first duty of the trial judge to see that every litigant is accorded such a trial. The sooner trial courts recognize and assume this responsibility, the sooner will the world at large accord to the courts of this country the respect and confidence so essential to a well-governed country. One reason why courts suffer from the ridicule of the laymen at present is the occurrences of miscarriages of justice like the one before us. An examination of the evidence shows in brief the following facts: Erickson and his wife owed the bank something over $1,200, some of it secured by a second mortgage upon his farm and some secured in other ways. The first mortgage against the land was $2,000. There were unpaid interest and taxes upon this first mortgage, which made Erickson’s total indebtedness run up pretty close to $4,000. The undisputed evidence is that Wiper went to the farm to collect the money due the bank, and while there Mr. and Mrs. Wiper *228 tried to sell him the farm for $5,000. Mrs. Erickson testifies that Wiper told Erickson that, if he did not quit drink, there would not be anything left on the farm, and she further testifies: “John (Erickson) wanted to sell the land because he wanted to go to Canada, and I said I have signed enough, but if you want to go to Canada I will sign the land if there is anything left in the land, and Mr. Wiper said he would figure. it. He said there was a $2,800 mortgage — . . . I said I wanted to have something to say in that land, for that homestead belongs to me just as much as to him. . . .” Wiper testifies that the sale was finally made for a consideration of $4,000 for the quarter section, $2,800 of which was the assumption of the first mortgage, interest, and taxes, something like $1,000 due to the bank, and $125 paid in cash to Erickson to allow him to go to Canada to look for another homestead. Upon that date he executed an instrument in writing, as follows:
July 22, 1911.
On payment to me of the sum of four thousand dollars ($4,000) less the then encumbrances, I agree to convey to John Erickson of Ooteau, N. D., by quitclaim deed the S. E. of sec. 23, 161-90, same being the amount I am taking said land over at to-day. I also agree to collect two promissory notes signed by John Erickson in favor of the First National Bank of Bowbells, — one for $650 and one for $154.65, — secured by said lien on lands owned and rented by John Erickson, and to pay to John Erickson any and all money due him from such collection after deducting amount necessary to pay me for advances necessary to make the land net me just $4,000 after paying all taxes, and past-due interest, and any and all advances made to you up to and including cash paid at this date. Also all bills which I have guaranteed for you up to this date, which is $48 to Rogers Lumber Company.
(Signed) A. C. Wiper.
Erickson went to Canada, where he died on the 22d of the following August. Plaintiff now brings this action, alleging an oral promise on the part of Mr. Wiper to pay to her all of the moneys above the first mortgage on the land, and claiming that the purchase price was $5,000 in place of $4,000. Her evidence consists of her own testimony. Mrs. Rouse, the only witness besides herself, in no maimer supports Mrs. Erickson’s version of the contract. The most casual examination of the evidence discloses the utter falsity of the testimony of both of those *229 witnesses. For instance, Mrs. Erickson testifies upon cross-examination that Mr. Wiper, the president of a solvent bank, had agreed to pay her personally in cash something over $2,000 for joining with her husband in signing the deed, and yet admits that during a period of six months of the most extreme poverty and privation she never asked for this money, nor gave any intimation to any person living that she had this asset. During this time her husband had died in Canada, and was buried at the expense of the county, and she and her children had been receiving county aid. The utter improbability of such conduct on her part under those circumstances is plain enough without any elaboration from me. Mrs. Erickson is contradicted by the disinterested witness, Heath, the driver of the livery automobile, who heard the entire contract between Erickson and his wife and Wiper. She is also contradicted by her old-country friend, Dahlquist, who came with her to the bank on one occasion. He testifies that upon an occasion after the execution of the deed he went with Mrs. Erickson to the bank and heard a conversation between Mrs. Erickson and Wiper. He was asked to give the substance of it and replied: “A. Well the meaning, anyway, of it — • if Mrs. Erickson or the family could get more than $4,000, or whatever it was, they should get the profit. Wiper said he only wanted the money and did not want the land, and, ‘what profit you can get out of it is yours/ he said.”
When we remember that Dahlquist was her friend from the old country, upon whom she always relied for advice, and that he testifies that several months after she claimed to have received Wiper’s promise to pay her $5,000 for the place less $2,800 mortgage, she was in the bank talking -with Wiper, admitting that the purchase price was $4,000, and that Wiper voluntarily offered to give her anything above that sum for which she might sell the farm, it is further almost unbelieveable that* Wiper'would have made a promise to pay to her everything above the first mortgage on this farm, while the bank of which he is president had'over $1,200 coming from Erickson, $400 of which was secured by a mortgage upon the farm itself.
As for the testimony of Mrs. House, it need only be said that she did not hear the contract between Wiper and the Ericksons. That she was unscrupulous and untruthful appears from the testimony in many places. We will mention but one instance. She testifies that Mr. *230 Sinkler, Mrs. Erickson’s attorney, was conducting her case without 'compensation, in order that justice might be done. The effect of such benevolence upon a jury can be readily imagined. An examination of the record, however, shows that brother Sinkler has filed the customary attorney’s lien for one third of the judgment recovered.
Even at that, I agree with the majority that the case should have been submitted to the jury, but upon such testimony the strictest observance of the legal rule should be required. The trial court should keep the parties within the issue, — should accord to a bank the same consideration shown to a poverty-stricken widow. Justice should be blind. An examination of the record shows the most glaring violations of this simple rule. I will site only one instance of the kind of testimony that reached this jury and had its effect, no doubt, upon the verdict. Mrs. Bouse volunteered the following: “This woman (Mrs. Erickson) came to me- — -I mean that we thought the boy was going to die, if we could not hold his home, and he sat there day after day with tears rolling down his face, and we thought he was dying, and she said to me, ‘Save the home if it is possible to save it; ’ and that is what I mean, that we should try to save the home if it was possible to save it, and that is what I mean.” In justice to the trial court it should be said that he immediately struck out this answer, but the harm had already been done, and, besides, such a voluntary statement shows, to my mind, that it was preconcerted. As another instance of the methods used to influence the jury against the defendant, we cite the following fact: Mrs. Erickson, as already stated, was cross-examined as to why she had allowed the county to bury her husband as a pauper, while she had over $200 in cash coming from this rich banker. This was a perfectly proper question. It brought up the probability of her story. It was admitted for this purpose alone, and yet upon cross-examination in an argument plaintiff’s counsel was allowed to shed tears over her sorry plight.
Again, she was asked upon cross-examination, why she did not write to Wiper, demanding this money. She replied that she could not write, and was asked whether or not she did not have children old enough to write. This was perfectly proper and was admissible for the single purpose of discrediting her when she said she had actually over $200 coming. Any redirect examination should be confined to her reasons ior not writing to Wiper, and yet counsel was allowed to show, in explana *231 iion as he said, that she was the mother of eight children and that two <of them were imbeciles. '
We give a short extract:
Q. (By Mr. Sinkler) The oldest child, — can'he talk?
(No answer).
Q. He doesn’t know anything, does he ?
A. No.
Q. Has he ever been able to help himself in any particular ?
A. No.
It is conceded that, besides the two imbeciles, there were several other -children who were well able to have written to Wiper, demanding the money. There can be little doubt that the parading of the two imbeciles before the jury was prejudicial, highly prejudicial, error. Again, in his address to the jury, counsel went outside of the evidence and offered his testimony, as follows:
“It-is not to be wondered at, this gang from Bowbells are all here telling the same story for the purpose of robbing this woman.”
“Defendant wanted to get the plaintiff into Canada, and the reason for wanting to get her there was to get her out of reach, so that he would not have a lawsuit.”
He further stated that he could go across the road and sell the farm to Mrs. Bouse for $4,500. Those remarks of counsel were all unsupported by the evidence, were duly excepted to by defendant, under the most elementary principles were prejudicial error. As it seems to me, from the beginning to the end of the trial, the poverty of plaintiff, her large family, and her imbecile children, were paraded before the jury. It was, of course, unfortunate that she was left in those circumstances by an intemperate husband. It was also unfortunate that the county was obliged to pay the burial expenses of her husband. Those are social and economic questions. The men who sold Erickson intoxicating liquor are more responsible than Wiper for this condition. None of those things, however, had the slightest bearing upon whether Wiper had promised to pay her $200 in cash, while the bank of which he was president held Erickson’s notes unpaid. The errors which I have enumerated *232 require a new trial upon the settled rules of law. For the foregoing-reasons I ana unable to concur in the affirmance.
Goss, J.,
dissenting. My dissent is not upon the issues passed upon by the jury or upon the conduct of the trial, but, in my opinion, plaintiff’s recovery is and should be barred by the statute of frauds, and this,, too, irrespective of pleading, as plaintiff recovers only upon a departure-in proof from her cause of action as stated in the complaint. A cause of action is pleaded, based upon the release by a wife of her homestead right in real property owned by her husband, and seeks a recovery of' an amount alleged as agreed to be paid her for such release. The complaint is very carefully and skilfully drawn, and is not vulnerable to demurrei’. But it is on the proof that the denouement occurs, and the real purpose of the suit is then first disclosed to be indirectly a roundabout one to recover not as for consideration for a release, as pleaded in the complaint, but instead of a portion of the very consideration for the-deed given, and which consideration has been, in whole or large part, paid to the husband, grantor. The impossibility of a recovery by this, plaintiff of a portion of the consideration, as consideration for the deed she and her husband signed to Wiper, is very apparent when it is remembered that the land conveyed belonged to the husband, title stood in his. name • and he has died since the transfer. His estate, and not this plaintiff, must recover, if anyone possess a cause of action to recover for any balance of purchase price for this deed. But this does not purport to be-to recover such purchase price, but is an action virtually by a third party, beneficiary of a trust, to recover of the trustee for her use. And this is attempted to be proven by parol, and to be ingrafted upon a deed of the husband, since deceased, to the defendant, and that, too, contrary-to the terms of that deed, which was also signed by this plaintiff as a grantor. It seems to me that recovery cannot be had as for the consideration for the deed. In other words, this widow cannot recover in her own-name and as her own cause of action any part of what was the-purchase price, the consideration for the deed of her husband’s homestead to Wiper. Assume that the purchase price for this land was. to be $5,000, instead of $4,000, as claimed by Wiper, nevertheless that balance of' purchase price, Erickson being dead, is due from Wiper to Erickson’s estate, and not to Mrs. Erickson. And notwith *233 standing her recovery in this case the administrator' of Erickson’s estate can sne and recover for any balance of said purchase price.
Bearing in mind that the complaint is for a cause of action founded upon a release of a homestead right or impediment, let us examine the proof, as to how' plaintiff has attempted to establish her cause of action upon this contract. The answer is a general denial, and puts plaintiff upon her proof. This she attempts to meet by showing that she has joined in the deed of her husband to Wiper, and testifying that before she did so Wiper had orally agreed with her to pay her “all there is over the mortgage, and the mortgage was $2,800, . . . and I was supposed to have the rest and the land was $5,000. He agreed to that, and after he agreed to that I signed the deed.” “My husband said to Wiper, ‘All I want is $150, and the rest goes to my wife.’ ” All the consideration for the deed to the amount of $4,000, claimed by Wiper to be the consideration therefor, was paid by defendant to the husband. She has recovered a judgment for a portion of the consideration paid him for this grant of his real estate, and a thousand dollars besides as a balance of such consideration. And this is all the proof. It is contended that by her joining in the deed she has partially performed the alleged parol contract that the money consideration should go to her; and thereby taken the transaction out from'under the bar of the statute of frauds, permitting her to prove by parol testimony, and without any writing other than the deed, the collateral contract thereto under which the consideration moved to her as a releasor of her homestead interest; and this, too, in direct contravention of the terms of the deed wherein she has contracted and covenanted as and to be- a grantor. The sole question is whether this proof answers the requirement of the statute of frauds.
Respondent admits that the deed, as such, cannot be varied by parol testimony, but has attempted to divert what is stipulated in the deed as consideration money therefor into a consideration for the collateral contract to be paid the plaintiff, not as consideration for the deed, but as payment for her release of homestead, and this on the plea that the consideration for a deed or other instrument can always be inquired into and shown whether the same may contradict the terms of the deed or not. Notes in 25 L.R.A.(N.S.) 1194-1211; 31 L.R.A. 234 ; 33 L.R.A.(N.S.) 84; and 8 R. C. L. 969-973. It is now almost elementary law that such parol evidence may be received to show the true consideration *234 for a conveyance. Alsterberg v. Bennett, 14 N. D. 596 , 106 N. W. 49 , and note in 68 L.R.A. 925 . That a recitation of the receipt of the consideration can be overthrown by parol proof; that the nonpayment of the consideration or a part thereof can be shown under certain limitations; that an action will lie to recover consideration unpaid, notwithstanding the recitals in the deed that the same has been paid, and, under •certain circumstances, that a third party whose debt has been agreed to be paid by the grantee as a part of the consideration for a deed from a .grantor, can sue and recover. (But in such a case the deed, while evidencing the grant and the partial performance, does not affect such third party, as it is not his deed. It was not a consideration for his act, and he is not estopped.) About the only limit to an examination into the consideration for a deed (in the absence of fraud involved in a suit to vitiate the deed because thereof) is that the deed cannot be destroyed in effect and operation, but must remain a deed with a consideration. Anri while the amount of consideration, the manner of its payment, and to whom and when and where and how paid, may all be fully inquired into on parol testimony, yet any and all amounts paid as consideration must remain of the same nature; that is, as consideration for the grant and not something else. Every dollar that was paid or that was to be paid as •consideration for this deed was consideration for the grant conclusively ■evidenced thereby, and were not payments partaking of a different nature or hind, such as payments for a release of a homestead or a leasehold interest, or any other interest in the land in this suit between one of the grantors, the wife, and the grantee. “One of the purposes of inserting the acknowledgment of a valuable consideration in a deed is to prevent the resulting of any use or trust to the grantor.” Washb. Beal Brop. § 2284. Blaintiff’s very claim in suit is based upon her assertion that part o-f this money belongs to her and is to come from the grantee as a part of the consideration for the grant, and yet at the same time constitute the consideration for her release of home'stead and with the prop■erty sold being that of her husband. Thus she seeks to establish, and must establish before she can recover, that the deed operated to make her the beneficiary of a trust for a part of the stipulated consideration, .although she is one of the grantors. “A recital of consideration received when it occurs in a deed of grant is usually intended merely as a written acknowledgment of the distinct act of payment, being there inserted for *235 convenience. Henee, it is not an embodiment of an act per se written, and may be disputed like any other admission. ... In general, then, it may be said that a recital of consideration received is like other admissions disputable so far as concerns the thing actually received, but ■that so far as the terms of the contractual act are involved the writing must control whether it uses the term ‘consideration’ or not.” Wigmore, Ev. § 2433. Thus the authority distinguishes, as do others, 8 R. C. L. 970; 6 Am. & Eng. Enc. Law, 775; East Line & R. River R. Co. v. Garrett, 52 Tex. 139 ; Kahn v. Kahn, 94 Tex. 114 , at page 119, 58 S. W. 825 , between the portion of the deed receipting for a consideration paid and the remainder stipulating the contract. And its importance is this: The deed must have as one of its necessary parts a consideration for the grant to negative a resulting trust. And the stipulated price or consideration is a part of the contractual act itself, the deed. This being so, that it is consideration is indisputable by parol testimony. This doctrine is reaverred in § 2283 of Washburn on Eeal Property: “It is not competent .to prove that no consideration has been paid where one has been acknowledged in the deed, for the purpose of impeaching the validity of the deed, unless it is for the purpose of establishing fraud •against the grantor. The true doctrine is stated in Grout v. Townsend, 2 Hill, 554 , 557, that where a deed acknowledges a receipt of a consideration the grantor and all claiming under him are estopped from denying that one was paid, for the purpose of destroying the effect and operation of the deed, although they may disprove the payment for the purpose of recovering the consideration money. The design of the clause acknowledging payment of consideration is not to fix the precise amount paid, hut to prevent a resulting trust in the grantee.’ ” Grant that this grantor plaintiff, who claims to recover as a releasor, contrary to the terms of her grant, in the words of the authority, “may disprove the payment for the purpose of recovering the consideration money,” she cannot make that which she has covenanted by the deed to be considera^■tion for the deed something else; to wit, consideration for the collateral ■contract upon which she seeks to recover. She could not recover, except ■as legal representative of her husband’s estate, the title having been in him as grantor, for any portion of the purchase price unpaid. See also Devlin, Eeal Estate, § 830. The sum paid under this deed must remain ns the purchase price for land conveyed by said deed as against the claim *236 of this grantor that it is something else. True, she seeks to assert this-claim under the guise of investigating the consideration for the deed, but the fact of this necessity brands .her position as untenable, and that the money she seeks was purchase money and cannot be recovered as for something else, the consideration for a different contract from that evidenced by the deed itself. The force of this reasoning is realized by the plaintiff’s counsel, and he seeks to avoid its consequences very cleverly, but signally fails, because his client is not suing to recover as for the purchase price, to do which she must sue as the representative of her husband’s estate. Reference is to page 13 of the brief, where counsel says:. “The testimony of the plaintiff does not in any manner vary or tend to vary the terms of the deed. The consideration recited in the deed is $5,000. The testimony simply determines the amount which is to go to each of the grantors.” Amount of what and to whom ? Consideration which “is to go to each of the grantors.” But plaintiff does not sue as a grantor, because if she did she would be limited to a recovery upon and for the purchase price, the consideration for the purchase. This she has not sued for, because perforce she could not, except as administratrix. Respondent by his very argument shows the fallacy of his position. He himself thus distinguishes between consideration as to purchase price of this land and consideration for the release of the wife’s homestead interest therein, which interest did not rise to the dignity of an estate in lands, but amounted to a mere impediment upon the power of alienation by the husband of the homestead transferred. Kuhnert v. Conrad, 6 N. D. 215 , 69 N. W. 185 ; Roberts v. Roberts, 10 N. D. 535 , 88 N. W. 289 ; and Helgebye v. Dammen, 13 N. D. 172 , 100 N. W. 245 . Again, counsel says: “The deed .is silent as to how much money is to go to the-husband and how much to the plaintiff.” So, plaintiff would divert part of the consideration for the grant, belonging if existent to her husband’s estate, to herself individually under this clever ruse adopted in both pleadings and proof. The one moment this fund is a part of the consideration for the deed; at the next instant it is consideration for something else, entirely different, the release of the homestead interest, with the deed but proof of partial performance of the alleged collateral oral agreement. The deed is full and complete evidence of an executed contract of purchase and sale of the real estate, with a specified consideration stipulated to be the consideration for the grant thereof, and as *237 having moved from the grantee to the grantors as such consideration, and for no other purposes. Counsel, however, has succeeded in making it serve a double purpose, to wit, consideration for the grant, a consideration paid; and, secondly, as consideration for the collateral oral contract to release, which consideration is wholly unpaid. And the taking of the ■consideration from the former and applying it as consideration under the latter agreement must operate to ignore the terms of the deed to the ■extent of the sum paid therefor, being the stipulated consideration for the grant. And if this reasoning can be applied to part of the avowed and admitted consideration for a deed, then all said consideration can thus be made by parol proof the consideration for one or several other ■collateral contracts. This widow might just as well have claimed the ■entire $5,000, the contract consideration for the deed, as to claim that portion thereof she has recovered. The principle would be the same.
This dissent concedes that the wife’s homestead estate, the necessity of her grant to which may allow her to thwart a sale by her refusal to join in the deed, may be a valid consideration for her release of it. She could have said to Wiper, as she did, and if he, with the concurrence of her husband, had agreed to pay her a portion of the purchase money in consideration of her release of the premises, he must pay her, but proof of such a contract cannot be made by the introduction of her deed, supplemented with oral proof contradicting the very terms of the deed itself. Every condition precedent to her deeding was merged in the «deed, and it transferred the land, she joining therein, for the purchase price, which must remain that purchase price. By the introduction of the deed she has negatived the possibility of her making proof contradicting its terms by oral testimony, because thereunder she has sold property for a' consideration, and she cannot be heard to say that she has not, but instead has sold thereby something entirely different. Because money was the consideration makes the case no different than had this defendant promised to deliver her a horse or a new bonnet if she would join in the deed. In such a case it could not be contended that any part of the consideration for the deed could then be diverted to and constitute the consideration for her release of homestead right. Nor vice versa could the consideration for the release be made to stand for the consideration for the deed, the grant.. In such a case she would sue exactly as she has sued here, to recover the horse or the bonnet or *238 the value thereof, and as upon an independent contract collateral to, but entirely different from, the transfer evidenced by the deed, and she would not in such an avent be compelled, in order to recover, to contradict the very terms of the deed as to consideration, as she is now seeking, to do, and must do to prevail, even conceding that $1,000 of the consideration for the deed remains unpaid, and which must be the property of her husband’s estate, and not hers individually. • The terms of the-deed control in either event, unless her contract concerning the release be-in writing. “Under the power of proving by parol the consideration of a written contract, you cannot establish an independent agreement otherwise within the statute of frauds,” quoting from Alsterberg v. Bennett, 14 N. D. 596 , at page 599, 106 N. W. 49 , in turn quoting from opinion in Howe v. Walker, 4 Gray, 318 .
This recovery is the best object lesson of the necessity for the statute of frauds, and emphasizes the reason why that statute was early known as the statute of “frauds and perjuries.” If plaintiff prevails it is written, in effect, as the law of this commonwealth that the payment of consideration for a deed executed and acknowledged jointly by husband and wife and delivered to the grantee cannot be made without the grantee accepting the hazard of a suit at law to recover the entire amount of purchase price paid, or any part thereof that the wife may see-fit to orally assert was to be paid her for her signature to the deed, but in release of her homestead interest. The door is thus opened wide to-fraud, and remains a standing invitation to accomplish it through perjury. The purpose of the statute of frauds was to prevent this very thing. This recovery is a circumvention of it under the guise of the investigation of consideration in a deed, as was similarly attempted and condemned in Alsterberg v. Bennett, 14 N. D. 595 , 106 N. W. 49 , and whereby in practical effect the terms of the deed as to the nature of the money paid as consideration are varied, contradicted, and set at naught by oral proof. In my opinion this recovery cannot be sustained upon legal principles on the proof, and should be dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6737594. Public record. Not legal advice.