83 N.W. 245 | N.D. | 1900
The complaint in this action, after stating that said defendants the Security Loan & Trust Company and the Cass County Bank are corporations, alleges the following facts in substance: That in the month of March, 1883, one Isabella C. Dalrymple and said Oliver C. Dalrymple were husband and wife. That at said date said Isabella C. Dalrymple became and was the owner of lots numbered, respectively, 3 and 4 of block 20 in the town (now city) of Casselton, in Cass county, N. D. That said premises at that time, and continuously thereafter and until the death of said Isabella C. Dalrymple, were occupied by the deceased and her family as their homestead. That said Isabella C. Dalrymple died in the month of May, 1891, leaving surviving her said husband and certain minor heirs, whose names appear in the title of this action; also one other minor heir, since deceased, named Howard C. Dalrymple, and all of whom were the children of said Isabella C. and Oliver C. Dalrymple. That in October, 1885, said husband and wife executed and delivered a certain mortgage upon said premises to secure the sum of $2,689.46, which mortgage was recorded. This mortgage was made to the
“(10) That thereafter, and on or about the 24th day of April, 1893, for the purpose of paying the said indebtedness of the said Oliver C. Dalrymple to the said defendant Cass County Bank, to-wit: the sum of twenty-one thousand two hundred and forty-eight dollars and sixty-four cents ($21,248.64), and for the further purpose of assuring and securing to the said Franklin S. Dalrymple, Howard C. Dalrymple, John C. Dalrymple, and Gertrude C. Dalrymple, minor heirs of the said Isabella C. Dalrymple, the full value of all their right, title, interest, and estate of, in, and to all said real property, the said Oliver C. Dalrymple made and entered into a contract with the said defendant Cass County Bank in his own name, but in behalf and for the benefit of himself and said minor heirs of said Isabella C. Dalrymple, a copy of which is hereto annexed, marked 'Exhibit A/ and made a part of this complaint. That in and by the terms of said contract it was agreed that for the purpose of carrying out said contract the said Oliver C. Dalrymple should at once secure from the County Court of said Cass county letters of guardianship for said minor heirs of said Isabella C. Dalrymple, and that thereupon said Cass County Bank should bring an action or actions to foreclose its lien under said quitclaim deeds upon all said real property, which said real property was, under and by the terms of said agreement, to be sold upon judgments obtained in said actions for the foreclosure of said liens as aforesaid to satisfy the said indebtedness of the said Oliver C. Dalrymple to the said Cass County Bank. That as a part of the consideration for said agreement said defendant Cass County Bank agreed to pay the said Oliver C. Dalrymple the sum of one thousand dollars; and that upon the sale of said property as aforesaid under said judg*311 ment the entire indebtedness of the said Oliver C. Dalrymple to the said Cass County Bank should be satisfied and canceled; and that thereupon the said bank, whenever its title under said foreclosure proceedings to said lots three and four in said block twenty should be perfected and made complete, would convey said lots by special warranty deed free and clear from all incumbrances to the said Oliver C. Dalrymple, or such other person as he should designate to take the title thereto (in trust for said minor heirs of said Isabella C. Dalrymple). That thereafter, pursuant to said agreement, the said Oliver C. Dalrymple made application to the said County Court of the said Cass county for appointment as guardian of the said minor heirs of the said Isabella C. Dalrymple, and such proceedings were thereafter had in said court that on the 21st day of June, 1893, the said Oliver C. Dalrymple was appointed guardian of the persons and estates of the said minor heirs of the said Isabella C. Dalrymple, to-wit: Franklin S. Dalrymple, Howard C. Dalrymple, John C. Dalrymple, and Gertrude C. Dalrymple. That thereafter, pursuant to said agreement, said Cass County Bank commenced an action in said court for the foreclosure of its said liens upon said real estate, wherein the said Cass County Bank was plaintiff and the said Oliver C. Dalrymple and the minor heirs of the said Isabella C. Dalrymple were defendants, and such proceedings were therein had that thereafter, and on or about the 15th day of December, 1898, a judgment and decree were given and rendered in said action, and duly entered and docketed therein in the office of the clerk of this court in and for the said County of Cass, which, among other things, directed the sale of all said real property hereinbefore described to satisfy said indebtedness of the said Oliver C. Dalrymple to the said Cass County Bank for the payment of which the said land was held by the said bank as security, and thereafter, and after the entering and docketing of the said judgment as aforesaid, an execution was issued thereon to the sheriff of said Cass county, directing him to sell said real estate pursuant to said judgment, and the same was thereafter, and on the 29th day of January, 1895, sold, pursuant to said judgment and decree, and at said sale was purchased by said defendant Cass County Bank, and a sheriff’s certificate of said sale issued to said Cass County Bank therefor. That no redemption from said sale was made of said lots three and four in said block twenty, and on the 3d day of April, 1896, the sheriff of said Cass county, pursuant to said sale and the certificate thereof, made, executed, and delivered to said defendant Cass County Bank a sheriff’s deed of said lots, which said deed was filed for record in the office of the register of deeds within and for the said County of Cass on the 4Ü1 day of April, 1896, and was recorded in said office in Book 53 of Deeds, at page 326.”
(12) That thereafter, and on or about the 8th day of April, 1896, the said Cass County Bank, pursuant to said agreement hereto attached, marked ‘Exhibit A,’ and to the direction and instruction of*312 the said Oliver C. Dalrymple, made, executed, and delivered to John C. Dalrymple, who is ths uncle of the said minor heirs of said Isabella C. Dalrymple and had therefore been appointed in the state of Pennsylvania by the courts thereof having jurisdiction in the matter as guardian of the estate of said minors in said state, a special warranty deed conveying to said John C. Dalrymple said lots three and four, in the said block.twenty of the First addition to Casselton, as aforesaid, which said deed and conveyance was so as aforesaid made to said John C. Dalrymple for the purpose of conveying the said premises to the said John C. Dalrymple, to be held by him in trust for the use and benefit of the said surviving heirs of the said Isabella C. Dalrymple, and not otherwise; but said deed was absolute in form, and no trust was therein declared or established, and no trust in relation to said premises was declared or established by any instrument in writing signed by the said John C. Dalrymple.
“(13) That the shares, estates, and interests of the said minor heirs of the said Isabella C. Dalrymple in all said real property herein-before described, other than said lots three and four, was greater than the entire value of the interest of the said Oliver C. Dalrymple in said lots three and four, and it was the intention and object of said writtep agreement Exhibit A to secure to and ultimately vest in the said minor heirs of the said Isabella C. Dalrymple the absolute title of all said lots three and four in lieu of their interests and estates in said other real property hereinbefore described.
“(14) That after the death of the said Isabella C. Dalrymple, as aforesaid, the said Oliver C. Dalrymple, her husband, with the said minor children of the said Isabella C. Dalrymple, continued to possess and occupy said lots three and four in said block 20, as aforesaid, as their homestead, and said lots still continue to be the homestead of the said Oliver C. Dalrymple and of the said surviving minor heirs of the said Isabella C. Dalrymple.”
The complaint further shows that between the month of August, 1889, and the month of October, 1896, said defendants Meredith, Lyons, Baldwin, Bagamiel, Neyhart, Justice, and Hosford severally obtained and docketed judgments in the County of Cass against said Oliver C. Dalrymple; and it is further alleged that said defendant Meredith caused an execution to issue on his s.aid judgment, and pursuant to a sale thereunder made by the sheriff of said county of said lots 3 and 4 a certificate of sale describing said lots was made, and delivered to said Meredith; and further alleges that said defendant Lyons issued execution upon his judgment, and said lots 3 and 4 were sold at execution sale, and the usual sheriff’s certificate describing said lots was delivered to said defendant Lyons as purchaser at such sale. The complaint further charges that said defendants claim that their respective judgments are liens and incumbrances upon the title of said premises, and that defendants have threatened to institute legal proceedings to enforce such liens; and that said defendants Meredith and Lyons plaim that said sheriff’s
A summary of the written contract between said Oliver C. Dalrymple and said Cass County Bank, embodying its most salient features, having been set out in the complaint, as already stated, we shall omit setting out the contract in full. The relief prayed for by plaintiffs may be epitomized as follows: First, that the title to said lots 3 and 4 may be quieted, and adjudged to be in said minor heirs of Isabella C. Dalrymple; second, that said mortgage upon said lots executed by said Isabella C. Dalrymple and her husband in the month of October, 1885, may be adjudged fully paid, and directing that said mortgage may be satisfied of record by said Security Loan & Trust Company; third, that each of said judgments be declared not to be liens on the title of said lots 3 and 4, and that each of said certificates of execution sale be adjudged void, and be canceled, and vacated of record, and that the sheriff of said County of Cass be enjoined from issuing deeds upon such sales or either of them; and, finally, that said defendant H. G. Scott be adjudged to hold said premises as the tenant at will of these plaintiffs, and be directed to account for and pay over to plaintiffs the reasonable value of the rents and profits of said premises during his occupation thereof; and to this was added a prayer for general relief in equity.
To this complaint the defendants joined in a demurrer, and assigned two grounds of demurrer, viz: that the complaint does not state facts sufficient to constitute a cause of action; and, secondly, that there is a defect of parties defendant. The demurrer was overruled by the District Court, and defendants appeal to this court from the order overruling the same.
In support of their demurrer counsel for the defendants contend, first, that the sole object of this action is to quiet the title to said lots 3 and 4 by a judgment of a court of equity removing certain alleged clouds upon the plaintiffs’ title, and, proceeding upon this assumption, counsel claim that such an action can be maintained only by a party who is seised of a legal title to real estate, and that the facts stated in the complaint show that the minor heirs of Isabella C. Dalrymple who are the plaintiffs are not seised of such title, and that one John C. Dalrymple is the owner of the legal title, and became such owner by warranty deed duly recorded, which deed was executed and delivered to him by the defendant the Cass County Bank. It is our opinion that this contention of counsel is untenable. In the first place, the assumption that the sole object of the action is to quiet plaintiffs’ title by removing clouds thereon is refuted both by the averments of fact in the complaint and by its prayer for relief. It is true that one object of the action is to quiet title by removing certain alleged clouds thereon, but it is equally true that at
But defendants’ counsel very earnestly make the further contention that the facts as set out in the complaint operate in law to negative either a legal title or an equitable interest in the plaintiffs. In support of this proposition it is claimed that the complaint shows that said John C. Dalrymple, long prior to the commencement of this action, became seised and still is seised of a legal title to the premises, and that such title was acquired under a deed of warranty executed and delivered to him by the Cass County Bank as grantor, which bank was, at and prior to the delivery of such deed, the fee-simple owner of the premises. It will be conceded that the Cass County Bank, at and before it delivered said deed, had the absolute title. Such title was acquired by a decree .of foreclosure, the validity of which is not questioned. But the question presented is whether it is true, under the facts stated in the complaint, that said John C. Dalrymple received said deed without consideration moving from him, taking the same as a mere trustee for the use and benefit of Oliver C. Dalrymple. To ascertain what the rights of John C. Dalrymple are under said deed of warranty, recourse must be had to the facts
Turning to 'the brief of defendants’ counsel we'find that counsel call the attention of the court to the fact that neither Oliver C. nor John C. Dalrymple are made parties to the action. No suggestion is made, however, tending to show wherein the defendants are prejudiced by the absence of Oliver C. Dalrymple as a party; nor are we able to discover from anything averred in the complaint that his absence or presence as a party can prejudice or affect the interests of the defendants. True, the plaintiffs allege or attempt to set up a homestead right in the premises in question, and seem to base their claim of homestead upon the statement that plaintiffs and their father, Oliver C. Dalrymple, have occupied the premises as a homestead ever since the decease of their mother in 1891. But this claim, we think, is overthrown entirely by the other facts pleaded in the complaint, whereby it appears that the title once vested in Isabella C. Dalrymple, the mother, has been vested since her death in the Cass County Bank, and that such title is now vested-in the plaintiffs. Plaintiffs’ having the title in themselves is a fact which is inconsistent with any homestead right in their father; and the plaintiffs, being minors, no mention being made that they are heads of families, cannot acquire a homestead right, at least during their father’s lifetime. So far as appears in this record, therefore, Oliver C. Dalrymple has as an individual no interest in the result of this action, and there is no claim made that he has ever at any time since the deed to John C. Dalrymple was delivered asserted or claimed any interest in or right to the premises in question. But defendants’ counsel argue that said John C. Dalrymple should be made a party defendant, and claim that, inasmuch as John C. Dalrymple is vested with title by a deed absolute on its face that the title to the premises cannot be quieted in the plaintiff in any action in which John C. is not a party. We think, this proposition' is untenable for two reasons, and the first is that the complaint, when cofisidered as a whole, shows that John C. Dalrymple has no title or estate in the premises in question, either legal or equitable, and that his sole duty with respect to the title is upon demand therefor to convey his record title to these plaintiffs. Nothing appears tending to show that John C. claims any title as against the plaintiff, or that any person, whether a party to this action or not, has ever claimed title, right, or lien through or by any act done or omitted by John C. Dalrymple. The second reason is that these defendants claim nothing whatever in this action which can affect the rights of said John'C. Dalrymple. Defendants, under the facts pleaded, can have no claim whatever to the premises in question which can operate to cloud any title belonging to John C. Dalrymple. He has no title. The defendants, upon the facts shown, have not recovered judgments against John C. Dalrymple, nor sold any property belonging to him, or as to which he can assert any claim of ownership. It doubtless is true that title in plaintiffs as against John
But an independent consideration fully justifies the order overruling the two demurrers to the complaint. The complaint states, in effect, that Isabella C. Dalrymple, joining with her husband, executed a mortgage upon the property in question, and delivered the same to the defendant the Security Loan & Trust Company; that such mortgage was subsequently transferred by said company to the Cass County' Bank, and thereafter was paid in full, but was not released of record; and with regard to such mortgage the plaintiffs, as should have been stated in another connection, pray that the same may be adjudged to be paid in full, and released of record. These averments of fact constitute a cause of action, and entitle the plaintiffs, as the owners of the property, to the relief for which they ask in this regard. Under an established rule of law, a general demurrer to a complaint for insufficiency will be overruled where several defendants join in a demurrer to a complaint which states a good cause of action as to either of the demurrants. See 6 Ene. PI. & Prac. 321, and authorities in note 1. Nor, in any aspect of the case, are we able to discover from the facts alleged that the Cass County Bank or the Security Loan & Trust Company have any interests or rights which can be prejudiced or promoted by bringing in other parties as defendants. The averment that said mortgage is paid, and is not released of record, shows that the plaintiffs are entitled to have the same released. Nor could any new parties, if brought in, be heard, upon the facts stated, in opposition to such right.
We observe further that the one fact most conspicuous in this case is that such of the defendants as are judgment creditors of Oliver C. Dalrymple are relying upon the theory that such judgments are liens upon the title to the real estate in question. If they are such liens, it follows that the property in suit must have been owned by Oliver C. Dalrymple either at the time the judgments were docketed or at some later date. The trouble with this assumption is that it is refuted by the facts set out in the complaint. It is true that the facts
Only a single point remains for consideration. Counsel for defendants contend that the representative capacity of Oliver C. Dalrymple as guardian of the plaintiffs is insufficiently alleged, and that it is