144 N.W. 133 | S.D. | 1913
Plaintiff brought this action in October, 1910, and -sought -a decree of the circuit court vacating an-d setting a-side a foreclosure of one certain real estate .mortgage, under which foreclosure defendant -claimed to- have become the owner of a certain quarter section of land -situate in Beadle county,'S. D.; adjudging defendant to be a trustee holding the title in and to a -two-fifteenths undivided interest in such real estate for and on ’behalf o-f plaintiff; and granting a recovery of -damages for the use an-d occupation of said property.
The cause was tried to the -court without a jury, and- the court made findings of fact which, so- far as material to this decision, were in- substance a-s follows: One John C. Scballer
From the time of such agreement no further proceedings were had in the probate of the mother’s estate, but the will of John C. Schaffer was established and administered in accordance with its terms and in accordance with the aforementioned agreement entered into by the .said heirs. Final account in his estate was presented and approved and a decree of distribution was entered in April, 1004, which decree purported to set over both of the quarter sections to defendant, which decree recited that the devise of this land had been made subject to the payment of these several bequests and that such bequests had been paid and vouchers hied therefor. Due notice of the proceedings in the administration of the estate of John C. Schaffer was had by the several heirs. One of the said quarters was appraised, in the probate proceedings, at $750; the other — the quarter now in controversy— was worth, at that time, not to exceed $1,050.. The plaintiff accepted from defendant the payment of the amount she was to receive from him under the terms of the will, receiving ?he same prior to the entry of said decree of final distribution, and she has never returned nor offered to return the same, nor did she offer, in her complaint to allow it to be applied upon the claim for money damages she made therein. Defendant, as executor of his father’s estate, proceeded1 to and did, in March, 1903, foreclose by advertisement, the said mortgage hereinbe-fore mentioned, and, at the foreclosure sale, bid in the said land in 'his private capacity and not as executor, and afterwards took out a sheriff’s deed; such foreclosure being made • and the title
The court fo-und that plaintiff was estopped from making any -claim to the premises, and it entered a judgment denying her the several reliefs asked for. From such judgment and an order refusing a new trial, plaintiff appeals to this court and assigns as error: That certain of the findings are wholly without evidence to support same; that the -court erred in denying plaintiff's motion to strike from the record -all evidence of any oral agreement entered into betwen the hei'rs of John C. Schaller; that the -court erred in denying plaintiff’s motion to strike from the record' all evidence as to the value of improvements made upon the land- in- controversy, or the rents and profits derived therefrom; and that the -court erred in denying plaintiff's motion for a new trial. The last assignment presents no question- not presented by the other assignments.
Appellant contends that the agreement entered into among the several heirs, which was, as the record shows, oral, was; invalid under subdivision 5, § 1238, C. C., providing that “an agreement * * * for the sale of real property, or of an interest therein, * * * ” shall be invalid if not in writing signed by the party to be charged. Appellant has not assigned the insufficiency of the findings to support the conclusions and judgment and therefore concedes -that, if such agreement had been in writing and signed by her, and therefore binding upon her, she could not now question respondent’s title acquired in accordance therewith. She contends, that, this agreement being void, the foreclosure and probate proceedings must all be treated as though they had been conducted by respondent without appellant’s consent; that the part of the decree of distribution setting over to respondent land not belonging to the father’s estate was a nullity; that respondent, as the executor of the father’s estate, held the mortgage as a trustee for. all the heirs, and therefore, though he bid the land in in hi® own. name, holds title thereto as a trustee for all the heirs and is bound to account as such; and that, as a matter of law, the mortgage ceased to have any validity upon its assignment to- the mortgagor. Appellant cites numerous authorities in support of her contentions, none of which demand our attention if her motion to strike out the evidence of this oral agreement was properly overruled by the trial court.
Certainly the facts proven herein being such that a court of equity, in order to prevent the statute of frauds from becoming an instrument of fraud, would be bound to declare 'that, treating 'the agreement as one to sell land, there had been such a partial performance as would take such agreement out of the statute of frauds, such court committed no error in holding these same facts sufficient to work an estoppel against plaintiff, or in refusing to strike from the records the evidence in support of such facts.
The judgment and order appealed from are affirmed.