*1 financing, precedent STRUTZ, J., participate; a essential did not Honor- condition agreement, HEEN, Judge of a binding existence able DOUGLAS B. contract, parties Court, District, good was no faith of the District Second Judicial case, being sitting not an issue in this and it is so in his stead.
held. urged
It that defendants’ con part
tinued least goods use of at notifying financing
after acceptance
failure constituted the ma passing
chines with title to defendants and consequent in liability therefor. In this PARCELUK, Alma M. Plaintiff stance, such effect conclusive cannot be Appellant, accorded the as continued use disclosed v. Apart authority the facts of this case. from KNUDTSON, Millie S. James O. “ * ** that continued use is not neces Barnhart, Florence V. Carl A. Knudtson sarily acceptance, may though it evidence Knudtson, Margaret Haag Robert K. M. it,” Sales, Rev.Ed., Williston on Sec (formerly Margaret Knudtson), M. NDCC; page cf., tion 36, but 51-01^49 Corporation, Hunt Petroleum Defendants Respondents. parties here and modified the limited relationship by agreement, bailment so that No. 8162. possessed after August the defendants Supreme Court of North Dakota. the property, not on the basis of “sale on approval,” but rather virtue of an execu- Jan.
tory contingent contract of sale on condi Rehearing Denied Feb. tion, namely, financing, obtaining that of 337,page 17A Contracts 315. Such § C.J.S. materialize, failing condition whatever legal plaintiff may
other resort relief
have, held, previously as defend purchase price
ants liability have no for the
of the machines.
It follows the District that the order of
Court dismissing cause action affirmed; but to defendant Runemark is judgment as decreed the District against de-
Court in favor things North Hill Bowl is in all
fendant aside, the case is
reversed and set in-
remanded to the District Court with of dismissal entry
structions for of an order con-
as to defendant Hill Bowl in North
formity herewith.
BURKE, J., C. and ERICKSTAD
TEIGEN, JJ., concur.
KNUDSON, J., a member of being of submission of this
the Court at the time
case, participate. did not
Mackoff, Kellogg, Muggli Kirby, & Dickinson, appellant. Howe, Dickinson, Reichert & for defend- respondents ants and Knudtson, Millie S. Knudtson, Barnhart, O. Florence V. James Knudtson, Carl A. Knudtson, Robert K. Margaret Haag. M.
Shank, Apeland, Dallas, Tex., Irwin & respondent defendant and Hunt Pe- Corporation. troleum STRUTZ, Judge.
Charley S. Knudtson died intestate on July 1947. He was survived widow, Knudtson, Millie S. six children, daughters, three three sons and the remainder of the real estate. Each youngest being a son nineteen the children was decreed a one-ninth inter- age. daughters, M. Par- est except One Alma in the real the homestead. celuk, appellant in this Such final decree of distribution also de- children, together with action. The other creed to the widow a one-third interest in widow, personal Millie S. are property and a one-ninth inter- Corporation, personal Hunt defendants. Petroleum est in such property to each of the in- holder of an oil lease on the appraised per- children. value of the suit, volved also is made a defend- sonal $12,396.70. validity
ant. The is not the oil lease brings quiet challenged plaintiff, however. this action to title one-ninth interest all Charley Probate of the estate of S. real estate decree, described the final in- begun county Knudtson court of *4 cluding the homestead. She also demands Billings County in October of 1947. Each partition of the real estate and an account- signed appearance of the heirs an and ing mother, from her Knudtson, Millie S. notice, waiver of service of citation and and her brothers and for Robert James provided, among things: which waiver other her share of profits the rents and accruing from her one-ninth interest hereby “I land. do also consent that said subsequent that, defendants contend estate be administered and final decree closing estate, the plain- and the of distribution entered therein without orally agreed tiff that the mother should any the service of notice or further possession remain in citation the on me.” estate and that she should retain the rents sons, Knudtson, One of the O. was James profits and therefrom her life- during appointed administrator the estate. The time. It was agreed further that the moth- inventory listed certain real as fol- estate er pay should taxes prem- and maintain the lows: during possession. ises her She has been possession in and has carried out this North Half of Half South (W/2 agreement any objection without from the 32, 144, Sj4) of Section 98 plaintiff until the commencement of this 2. South Half of South Half action. (Si/2 144, Si/2) 32, of Section 98 It is further contended the defendants Quarter (NW}4) Northwest that, 7, 1949, July on or about the Quarter Northeast of Sec- (NEJ4) was money in need of and that she sold'her 32, 144, tion 98 estate, one-ninth interest in the both real 31, 4. All 144, of Section personal, to her mother and her three brothers; that, although was sale 19, 144, 5. All of Section orally, purchase made price agreed the full upon paid pur- and the appraised $8,160. This real estate was at possession chasers have remained in since This valuation included the homestead that time with no being demand appraised $2,400. at possession for or for rents Final decree of distribution was entered profits until the commencement of this 12, July on 1948. This decreed July 1962, action in thirteen after widow, Millie S. the entire title such sale was made. It is further con- homestead, to the described as the North that, tended relying defendants on Half South (Ni^Si/á) Half sale, Sec- purchasers such oral have made 32, Township 144, tion Range and fur- permanent improvements valuable and upon ther decreed to her a one-third interest in the real estate. hand, estate, asserts sold in plaintiff, on the other her interest he asked her in only her one-ninth interest for a deed and that she stated that she
that she sold give and that think personal property of the estate didn’t she wanted to the deed any part yet. Subsequently, again of her interest she for did not was asked she sell deed, any contends that at time she in the real estate. She stated property, being she didn’t think purported sale of the real she had sold her interest in agreement, property. an is in the real based on oral violation agree- frauds such of the statute of since The mother and her three sons con- required by writing ment was not in occupy operate tinued to the farm until 9-06-04, Century North Dakota Section boys away. when one of the moved pur- Code. further that such She contends Thereafter, moved, leaving another ported agreement oral would be viola- youngest mother and the son on the farm. tion of Section of the North 47-10-01 farm, boys Both of the left the who how- Century provides -Dakota Code which ever, retained their interest in it. At the transferring methods of an trial, young- time of the the mother and the property. real farming est son were operating land. The evidence shows that another (cid:127) that, May The record also shows daughter had sold entire plaintiff signed receipt for her estate, including her interest in the real share con- the estate and approximately the same sum as sented discharged. that the administrator *5 paid plaintiff in this action. parties that, It is conceded after is There no doubt that the defendants closed, plaintiff had sold buy plaintiff’s intended to all of the inter- portion at least a of her interest in the es- est in including the father’s in- her According testimony, tate. to her she sold terest in the land. The widow testified only personal her interest in the property. plaintiff that when the came to the farm parties All agree that she did sell money, suggested wanted she to the personal her property, interest in the but boys they figure up that the value of her ais direct conflict in the evidence pay in the estate and her off. as to purchase whether the sale and in- * * * “A. I why you said don’t plaintiff’s cluded the interest in the real figure up her pay estate and lets [sic] testimony estate. The of -the defendants her off. is that she sold her entire interest in estate, including her interest in the real “Q. You said her estate? estate. point The defendants out that “A. Yeah. purchase amount of price was arrived by taking at the market value of the cattle “Q. you And meant her interest and appraising the value of the real estate your husband’s estate ? at acre, six dollars an and that she then right." “A. That’s was offered one-ninth of such amount for her entire interest in the estate and that course, testimony, of accepted she the offer. The defendants in direct conflict with that of the defend- further testified plaintiff that the agreed respect ants with to the-sale of her interest to out, have a executed, deed made She testified that she went estate. mailed to her brother who had been James get to the home to her brothers’ as advice the administrator of the estate. No written to price what would be a fair for her cattle. memorandum was made of agreement, this place She testified toas what took fol- however, and when the was asked lows : give to later, deed she refused do to “Q. they say you did so. What to about that, approximately testified six James the estate ? year months to a after the had Well, they figure “A. come with a flat “A. That’s correct. expected accept me to it. ' “Q. they How much were the checks
“Q. they you your gave you in- Did tell what ?
terest in the estate was ? “A. $2345. No, they
“A. did not. “Q. you Then did leave or was $2345. “Q. you accept did How come to this there some further conversation? figure you accepting and what were No, “A. I shortly think I left after.” then? She further testified that she next talked “A. I accepting personal it for with her brother about the transaction some property. three place. after it had taken At “Q. they you Did time, tell that give under the her her brother wanted you final decree were entitled to an a deed. She states that that was the first personal interest in the property? time she deed knew wanted a however, definitely, land. She testified “A. There was no word said about purchase at the time of she the sale and the final decree. thought selling personal property. she was “Q. Was there anything said about question to be determined on this the land? appeal interest, any, is what if part “A. No. still has in the real estate was-a of the estate of deceased father. She “Q. anyone Did many mention how per- makes no claim an interest in the you cattle would have an interest in property. sonal or many you how outright would own if they were up? divided inventory Included in the es “A. tate They and included in the distributed said about assets nine head. *6 the final decree of distribution was “Q. Did you mention to that homestead, described the North Half you was—that also had an inter- Quarter (Ni^SE54) Southeast and est in the machinery equip- farm Quarter the North Half of the Southwest ment? (Ni/£SWi4)- the North It also included 32, Quarter (NW}4) west Town of Section No, just “A. it, par- interest in but no ship North, Range The evidence ticular share of it. shows, however, 6, 1931, that on October “Q. Did they say anything about an death, almost sixteen before his interest in the land? warranty intestate this executed a deed to property wife, to Millie his the defendant “A. No. plaintiff that S. Knudtson. The contends “Q. this deed there was anything Was was invalid because delivery said about delivery grantee. of a no deed? to the The evidence shows, however, this contention “A. No. undis is without merit. The puted son, testimony James, the eldest “Q. anything Was said about a bill of clearly shows been a valid that there had sale? delivery fol of the deed. He' testified as “A. No. : lows
“Q. right, they “Q. All did however Did he it draw hold to deed] [the you, some checks to is that correct? or did he hand it to her? looked at it. denying any
“A. She took it and the trial court n n n interest in such land is affirmed. “Q. Well, [*] [*] did he [*] just quickly [*] [*] hand [*] it to an We now will consider the remaining land de- claim decree, wit, scribed in the final it hack to to her and she hand him South (Si/áSj/á) Half of the South Half bank? he take to the it 32, Quarter (NEJ4) Section the Northeast said, “A. He handed it to her and she of Section all Section and all suppose put ‘I in with the rest of it 19, 144, Section court found trial and handed it back.” them/ property that she had no interest in this because she had sold all of her interest to that, some time further testified James after the deed Millie, Carl, the defendants James, drawn and delivered to Robert, paid that she had been full mother, him deed. his father showed pointed for such interest. The out court He testified: signed receipt that she for share “in “A. it He took out of the box estate of decedent.” said, me. ‘This is showed He it paid The court further noted that she was ” * * * mother’s deed for that land.’ $2,529.19 interest; the total sum of for such appraised that her interest in the value is in existence. It was deed $2,413; including the land was prior received in evidence was recorded appraisal that such included the value of undisputed to the time evi of trial. land which was the sole delivery dence shows that there was a valid Millie S. Knudtson and which should not of the deed. And the fact that after such have been included in the estate. The court delivery grantee valid back handed it that, although found such sale was made grantor safekeeping to the does not for contract, oral purchase price destroy validity of the the effect or the paid her; purchasers that the have been delivery court, the deed. This possession since that date with no demand case of Fitzgerald, Keefe v. N.D. being possession 288 N.W. held if a deed has or for rentals until the commencement of executed and there has been a valid de action; purchasers, this and that livery grantee, to the its return to the upon sale, improve- reliance did make grantor specific purpose for some such as upon ments the real estate. On such find- safekeeping destroy does the effect ings, the court judgment ordered in favor of delivery. of the defendants. *7 The purported contends that the undisputed Since the evidence shows sale of her interest in real cannot be estate delivery that there was a valid of the deed alleged sustained because it is based an on quarter to the homestead and the additional oral contract is in violation of the deed, described in the the fact that the land 9-06-04, statute of frauds. Sec. N.D.C.C. conveyed by the deed in later was included She also purported contends that such oral probate the grantor’s estate does not agreement would be in of violation Section previous affect the transfer. See Stark 47-10-01, Code, Century North Dakota County v. Koch (N.D.), 701. 107 N.W.2d provides prop- that an estate in real erty, therefore has no interest in other than an estate at will or for a the homestead or Quarter exceeding year, the Northwest not in term one can trans- 32, (NWJ4) 144, of Section only by That land operation by 98. ferred of law or an had by been delivery transferred valid writing by the instrument in subscribed the warranty of a by Charley party deed S. Knudtson disposing by agent of the same or to Millie finding S. and the of is writing. who authorized in
871 held, have held jurisdictions of to be taken out of the statute Courts various of frauds. however, an oral part-performance only question partial of in the case of performance contract sufficiency proof contract sale of land takes the the of is of operation of agreement really out the of the statute what the of was. State, specifically In this frauds. our law us, question In the case before is provides of that contracts for the sale .real agreement whether was an property an or interest therein are invalid to in sell interest the real such contract or or memo- unless some note property, and, was, if there whether there writing randum thereof is-in and subscribed w;as partial performance sufficient take 9-06-04, party charged. to be Sec. agreement frauds, out of the statute 4, Subsec. N.D.C.C. part agreement since no of such inwas 47-10-01 Dakota writing.
Section of the North is There considerable on evidence Code, above, Century besides part referred to of several plain- defendants that property that an in agreed real tiff to sell her entire providing interest in than an a term She, however, other estate at will or for any estate. selling denies year exceeding land, not one can only be transferred interest in the and contends that only out, provides: as set personal further her interest in the property was disposed $2,345 of. She admits receiving
“ * * *
abridge the
This does not
páyment
in
sell;
for whatever she did
compel
power
any
court
paid
trial' court
$2,-
found that she was
specific performance
any agreement
529.19; and the record further
shows
for the sale
case
of real
.in
another sister sold her
entire interest
part performance
thereof.”
including her interest in
real
estate, for approximately this same amount.
court,
days,
early
from
has
an
held that
oral contract for the sale of
payment
But mere
money
con
land cannot
equity
be avoided in
on the
buyer generally
sideration
suf
ground
agreement
that such
is not writ
justification
ficient
enforcing
an oral
ing, and therefore is within
statute of
Heavrin,
convey
contract to
Baker
land.
v.
frauds,
agreement
par-
when the
has
766,
375;
148
29
Neb.
N.W.2d
Boekelheide
performed
cially
part-perform
and such
Snyder,
470,
v.
S.D.
71
26
74.
N.W.2d
ance would work a fraud on the one who
purchased
land,
which contract
oral
passed
While this court has not
carry
seller now refuses to
out. Fideler v.
alleged
payment
pur-
effect of
full
Norton,
258,
128,
4 Dak.
30
32
N.W.
N.W.
price,
partial pay-
chase
have
we
held that
57.
not,
itself,
part-per-
ment is
sufficient
formance
to take
contract out of
recently
1962,
As
as October
this court
Lonski,
statute of frauds. Fried
48 N.D.
v.
partial performance
held that
an oral
582;
Brey Tvedt,
188
74 N.D.
N.W.
v.
agreement
convey
an
real
49;
Corp.
Henry
21 N.W.2d
S. Grinde
agree
is sufficient
to take the
Klindworth,
v.
N.D.
N.W.2d
ment out
the statute of
Brand
frauds.
hagen
(N.D.),
v. Burt
N.W.2d
However,
when considered
connection
*8
facts,
payment
with
such
is entitled
other
seems
adopted
to be
in
the rule
Charon,
weight.
Andrews v.
289 Mass.
many jurisdictions. See
on Con-
Williston
737;
Wolack, 316
Hatch
N.E.
v.
Ed.,
tracts,
3d
494, p.
Vol. Sec.
Mich.
which are of upon partial per such a be con- The acts relied for nature as to only formance, sistent with the in order re existence of contract to be sufficient to for the sale of of property, agreement real case is lieve an from the effect the oral frauds, Charley must be such a
the statute of S. Knudtson some before his death, incomprehensible and be that such nature as to should not related capable being understood unless have been included in the property of his convey in an interest estate. digging to the contract to The of the water hole and enough land, money payment of is not the well and building the of the corrals can- pos- by acts such as. not be held partial per- unless followed other to be such acts of improve- making or of valuable formance by session the induced the oral contract and done ments. with a completing view to the con- oral
tract they since cannot be said to have been done with a view to defendants, performing in such order to show oral just contract. It would partial performance be as consistent to of an oral contract to hold performed that plaintiff’s these acts were sell the in real the operation of the ranch in only agree must which all of the show not the terms of such in defendants had an they ment—which have interest and we believe shown which defendants, was, fact, ranch in they this case—but must such owned also show except for part acts on one-ninth interest owned of the defendants which plaintiff. permit would the court to- find that partial performance was substantial case, In this the trial court found that partial performance part that such on the was, payment addition to the put of the situ defendants them such a purchase price, partial perform- other nonperformance ation that oral ance agreement. of the oral The trial court agreement by would amount to points purchasers out that the been in have upon words, fraud the defendants. In other possession years, for with no demand on the appear upon by it must that the acts relied part possession of the or for solely defendants been done have with rentals until the commencement of this suit. performing a view to the oral contract fact, But that ordinarily important while they allege plaintiff which had made to sell determining whether there has been suf- her interest in the real estate. partial performance ficient to take an oral agreement frauds, out of the statute of
We have examined the record loses most of weight its partial performance we find no in this such acts of case when we remember that partial perform pos- were in defendants. The defendants .the session them, because upon by pay ance relied the defendant addition to Millie S. ment, Knudtson owned the digging dugout is the of a to hold entire title to two quarters of pastured water on the land and the Section 31 livestock other defend- ants, together Millie, property, on with the said dugout were the eight-ninths owners of approximately at a cost de of the title to the $400. remaining possession real they dug estate. Thus her allege fendants further a well making improvements upon of the constructed some corrals on another premises, land, livestock, which the defendants’ test- tract of for the also use of imony made, shows $1,500. were approximately at a cost would con- While sistent they operation with improvements substantial, of the ranch these are are the use the land for eight-ninths consistent with under the ownership of the ranching purposes by defendants. The defendants. defendants contend that did some also examining record,, In painting buildings on repairing we find some evidence part of the which would tend place, the home but that is not a to corroborate part contention that agreement oral she had not sold sell, her interest in the place was the real estate. The evidence since hold the home we that, shortly shows Millie S. until before the com- the defendant *9 action, was.paid her mencement of she her to Knudtson under a deed delivered
873 preponderance of the payments The evi portion benefit of Government agreement dence in this case establishes an objection that no to this mother, parties the under the were between any the defendants. If defendants of title, remain defendant Millie S. was to why the would owners of all of possession in for and have the payments? such We her lifetime consented to have profits in re record rents and from all the land carefully examined the entire have maintaining paying turn the and, much evidence to sustain for taxes while there is premises. in plaintiff agreement was not writ the contention that defendants’ estate, However, a ing. agreement did create in the real we do the sold her interest confers competent tenancy tenancy of at A at will not find that there is evidence will. possession premises for partial performance right sufficient take the to of to parties both transaction out the statute of frauds. such an indefinite time as of possession shall con possession alleged shall The defendants as determine purchasers making determined plaintiff of valuable im- has now tinue. The provements of her upon by purchasers possession relied defendants such that the of the part-performance shall ter are consistent with one-ninth interest in therefore, that her property, though believe, their in such even interests minate. We in plaintiff petition partition owns one-ninth thereof. We of the for par- showing of should have find that there has been no has interest which she performance to granted. tial in this case sufficient agreement
take the oral for the sale of remanded to is The case therefore interest of the in the real estate partition the South a court for district out of frauds. statute (Si/£S]4) of Half the South Half of 31; all of 32; Section all of Section The has demanded an also 144, Range 19; Township all Section accounting profits for and for a rents and partition Clearly, the of the real estate. profits. is entitled to rents and not herein, judgment stated For reasons plaintiff, legally sell her if she did not plain- decreeing the trial court she contends interest the real estate—as North Half in the tiff has no interest —was, best, at in common with tenant 32, of Section (N^Sj4) Half the South 47-02-08, defendants. Sec. N.D.C.C. Quarter 144, Northwest in the 98 and defendants, common, occupied as tenants .in 144, is affirmed. Section (NW|4) of proportionate more than their shares of the premises. They agree to common did not re- is trial court judgment The. pay plaintiff, such Since the as a for use. in the interest plaintiff’s to the versed as common, upon tenant in made no demand is she real balance suit, of her the defendants until the time in- one-ninth an undivided to have found she that she was ousted cannot now claim the South Half of in the South terest premises. As a or excluded from the one- and a (Sj/áSi/á) Section Half rule, oc general in common who a tenant 31 and Section in all of interest ninth cupies proportionate share more than his Township all all of Section has not the common and who hereby plaintiff is Title Range 98. therefor, agreed pay and who has in such quieted her one-ninth cotenant, such is not liable to ousted named. against the defendants land as occupancy, cotenant for or for use and rent judg- court’s portion of the district is an ex That although may he if there be liable demand denying implied agreement pay rent. ment press or profits rents accounting an p. Tenants Common § C.J.S. accounting is or- such an Here, implied to modified express agreement no or date and after dered from plaintiff. rent shown pay *10 plaintiff’s of papers. service summons com- with the rest was He then plaint upon the defendants. From the asked:
time of of such summons and service Well, “Q. just quickly did he hand complaint filing and the of defendants’ an- it to her and she hand it back to cotenant, swer, plaintiff, clearly- as him and he it ? take bank property. ousted from Her the common said, “A. He handed it to her and she complaint summons and a de- constituted ‘I suppose put in with the rest it cotenants, defendants, mand her on the them,’ and handed it back.” profits. portion rents She is from accounting entitled an that date. question The raises no as to the question execution of the The deed. sole portion judgment The the trial court’s raised is whether there was a valid deliv- denying plaintiff’s petition partition for a ery. The court trial found that there was modified, of the real estate is and the delivery, such and we believe the record is the trial court case remanded to with finding. also, sustains such This court on instructions that one-ninth novo, trial de found that there awas valid in the determined here- as delivery. in, partitioned provided law. As many times, this court has said TEIGEN, JJ., ERICKSTAD and con- on a trial de findings novo the of the trial cur. are appreciable court weight, entitled es pecially when based testimony on of wit appeared nesses who person before the BURKE, J., participate. did not C. Pauly (N.D.), court. Haas v. 84 N.W.2d KNUDSON, J., being not a member many statement was times time submission
the Court at the prior this court case, to the Pauly and has case, participate. this did not repeated subsequent many decisions. Rehearing. The On Petition for witnesses testified before the trial credibility
court. Their and the inferences to be testimony drawn from their is of STRUTZ, Judge. great importance, finding and the delivery trial court of a valid is entitled to petition has a for re- filed appreciable weight appeal on to this court. hearing in she contends that the de- finding error in cision of the court is in petition rehearing denied. delivery a of the deed exe- that there was his cuted Charlie S. Knudtson to wife. TEIGEN, JJ., ERICKSTAD concur. delivery and The trial court found a valid testimony based such finding BURKE, J., participate. C. did not son, undisput- testimony James, which gave KNUDSON, ed. testified that father being J., member of James if deed of his mother and asked her she at the time Court of submission this put safety-deposit case, participate. wanted it box did not