This is аn action brought to quiet title to Lot Seven (7) Bee’s Addition to Killdeer, Dunn County, North Dakota.
Plaintiff is a minor fifteen years of age. The District Court appointed his mother, Stacia Shuck, guardian ad litem to bring the action.
The defendants question the authority of the District Court to appoint a guardian ad litem. They claim' that, because Section 111 of the Cоnstitution of North Dakota gives the county court exclusive jurisdiction in the appointment of guardians, Chapter 28-03 NDRC 1943 giving the District Court authority to appoint guardians ad litem is unconstitutional.
The language used in Section 111 of the Constitution grouping together “the appointment of administrators and guardians, the settlement of accounts of executors, аdministrators and guardians, sale of lands by executors, administrators and guardians” indicates that a general guardianship is meant.. The duties
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of the general guardian are to take care of the person or property or both of a minor, make inventory of his property and reports to the court and to have general management of all affairs of the minor. The guardian ad litem has no such duties to perform. He is the representative of the court to look after the interests of a minor in a particular litigation pending. 43 CJS'275, Sec. 107. He neither has charge of the person nor property of the minor and is not accountable to the court except for the faithful discharge of his duties. Richter v. Leiby’s Estate, 107 Wis 404,
“When an infant appears as a party to an action pending before the court he becomes a ward of the court and it is its duty to see that his interest is protected.” 27 Am Jur 833, Sec 114. “The power to appoint a guаrdian ad litem is inherent in every court of justice.”
The offices of guardian ad litem and general guardian are separate and distinct. There is no conflict between Section 111 of the Constitution giving the county court general jurisdiction in the appointment of guardians and Chapter 28-03 NDEC 1943, authorizing the District Court to appoint a guardian ad litem.
The plaintiff claims title by warranty deed from one Nick Shuck and asks that the defendants set forth their claims against the property and that the validity thereof be determined. The defendant, Mathilda Kukla, sets forth her claim to the property by virtue of a quit claim deed from said Nick Shuck. The defendant, the Public Welfare Board, sets forth a claim against the property by virtue of old age assistance furnished Nick Shuck and his wife, Eose Shuck, while they occupied the property as a homestead.
The attempt to serve Arnt Eee by publication failed because the statute for service by publication was not strictly followed in that no sheriff’s return as provided in subsection 4 of Sec. 28-0620 NDEC 1943, was filed. Roberts v. Enderlin Investment Co.,
*632 The other defendants default. The only apparent interest of such defaulting defendants is by way of their being heirs of Nick and Eose Shuck.'
Thus all of the parties to this action derive whatever right and title they claim to this property from Nick Shuck. All that they seek is to have the validity and superiority of their respective rights determined.
On the trial in District Court some evidence was introduced by the defendants in an effort to show fatal defects in the chain of title prior to the' time Nick Shuck obtained a deed to this property. This wаs objected to by the plaintiff on the ground, amongst others, that its admission would also affect defendants’ title. The objection was overruled. The District Court held that evidence fatal to the title of Nick Shuck to the property and that, therefore, plaintiff secured no interest in the property by virtue of his deed from Nick Shuck. The action was, thеreupon dismissed with prejudice. The plaintiff appeals asking a trial de novo.
The plaintiff and appellant assigns as error the admission of this evidence and the dismissal of the action on the findings based thereon. He argues that the only issue between the parties to this action is which one of them has superior right to Nick Shuck’s interest in the рroperty whatever that may have been.
The District Court’s decision was based on the case of Company A. First Regiment National Guard Training School, a Corporation, v. State of North Dakota et al,
For the purpose of determining thе validity and superiority of claims in issue in the case at bar it is not necessary to trace the derivation of title any further than the common source, Nick Shuck. He had prima facie interest in the property by
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virtue of a warranty deed and possession sufficient to give any one wlio succeeded to his interest the right to maintain an actiоn, to determine the adverse claims here in issue. Sec 32-1701 NDRC 1943. See Annotation in
Seс 32-1710 NDRC 1943, provides that: “The court in its discretion shall find the nature and extent of the claim asserted by the various parties, and shall determine the validity, superiority, and priority of the same.” Where the parties trace their title to a common source the “plaintiff need not show a title good as against the whole world, but only as against the defendаnt, and the one who has the superior title or equity must prevail.” 51 CJ 174 Sec 76.
In Sec. 49, 44 Am Jur 39, the principle is laid down that “While the complainant may establish ownership of the property by deraigning title from the government that is not necessary where both complainant and defendant claim title through a common source.” In Charles v. White, 214 Mo 187,
In Gillium v. Bird, 30 NC 28, and 49 Am Jur 379, the court says: “Whenever in an action to recover land both parties claim (title) under the same person, neither of them can dény his right, then, as between them, the elder is the better title and must prevail.” In Howard v. Twibell, 179 Ind 67,
In an annotation in
The defendants argue that in an action- to quiet title the plaintiff must recover on the strength of his own title not upon the weakness of the defendant’s title. This court has often so held. See Conrad & Ross v. Adler,
The objeсtion of the plaintiff and appellant to evidence of title beyond the common source of all the parties is meritorious. Only the rights of the different parties, as between themselves, derived from their common source of title as claimed in the pleadings will be considered on this trial de novo and no determination made beyond thаt.
The record shows that on July 19, 1937, Nick Shuck, obtained title to the property here involved by warranty deed. He immediately went into possession. In April 1939, a warranty deed, dated August 2,1937, from .Nick Shuck and Rose Shuck, his wife, *635 as grantors, to Matt Shuck, Jr., as grantee, reciting consideration of $1.00 and other consideration including love and affection, was recordеd in Book 28 on Page 266 of the Records of' the Register of Deeds of Dunn County. The. record shows that said deed was signed by mark with no witness to the mark. The plaintiff claims title by virtue of that deed.
The answering defendants attack the delivery of this deed.
Delivery is essential to the validity of a deed. Sec. 47-0907 NDRC 1943. “Whether there was a delivery of a deed depends upon the intention of the grantor which is mainly a question of fact.” O’Brien v. O’Brien,
“Words or conduct of the grantor evidencing his intention to render his deed presently operative and effectual so as to vest the estate in the grantee and to surrender control over the title is necessary and sufficient to constitute delivery.” 26 CJS 233, Sec 41. See also Keefe v. Fitzgerald,
“It is essential to a valid delivery that there be some act or declaration from which an intention to pass title may be inferred and this is true although the grantee is of very immature years.” 41 CJS 235.
The burden of proof is on the plaintiff to prove delivery. His title depends on that. O’Brien v. O’Brien, supra; Magoffin v. Watros, supra.
This deed was not executed in accordance with statute since there was no witness to the mark. It was dated August 2, 1937. The Notary’s certificate is dated April-17, 1939. “A deed will not be regarded as delivered while anything remains to be done by the parties who propose to deliver it.” 16 Am Jur 501, Sec. 113. Before this deed would be complete it would have to be acknowledged. McKee et al. v. Buck et al.,
The deficiency in the execution of the deed, the lack of consideration, the infancy of the grantee, the delay in the acknowledgment and recording, the claim of the grantor that he had an interest in the land almost two years after the date of the deed and that he remained in possession of the property, are circumstanсes to be considered in determining the intent of the grantor, Nick Shuck. They all indicate a lack of intent on his part to make the' deed presently effective.
There is nothing to show who had the deed recorded, nor that the grantor consented to have it recorded. The grantee, four years old, could not have done it. No possеssion of the deed in him was ever shown. His father, Matt Shuck Sr.,, and his mother, Staeia Shuck, his guardian ad litem, are very evasive in their testimony regarding their having possession of the deed. Even if the inference from their testimony is that they had, there is no evidence as to how or when it came into their possession. Nick Shuck learned from the Public Welfare Boаrd that the deed had been recorded. Shortly thereafter he appeared with his son, Matt Shuck, Sr., in the office of the State’s Attorney of Bunn County. An attempt was there made to transfer the property back to Nick Shuck. Matt Shuck Sr. signed his son’s name, Matt Shuck Jr., and his own as father and guardian to a deed transferring the property back to Nick Shuck. Thаt would indicate a lack of intent on the part of Nick Shuck to vest title in the plaintiff. These circumstances overcome any presumption of delivery from the recording.
We do not believe the evidence shows even constructive delivery. Sec 47-0909 NDRC 1943 provides for constructive delivery in the following cases: “1. When by the agreement оf the parties the instrument is understood. to be delivered at the time of the execution and the circumstances are such that the grantee is entitled to immediate delivery, or S. When it is delivered to a stranger for the benefit of a grantee and his assent is shown or may be presumed.” There is no evidence of an agreement between the grantor and grantee that the deed was delivered and because of the youth of the grantee there *637 could be no such agreement. Neither were the circumstances such as to entitle him to delivery. There is no evidence of any consideration .passing from him or anybody for him for that deed. And there is no evidence of delivery to a stranger for the benefit of the grantee.
In the case of McManus v. Commow,
Since Matt Shuck Jr. obtained no title by the deed from Nick Shuck under which he claims, he had no title to transfer back to his grandfather, Nick Shuck, by the deed which his father, Matt Shuck, Sr. attempted to make for him and which-is recorded in Book 32, page 37, of the Register of Deeds Records-of -Dunn County. Besides .the evidence shows that he neither signed nor acknowledged, nor in any manner authorized that deed to be made by his father. Matt Shuck Sr. was not his legally appointed guardian and, although a parent, he had no control of the property of this child. Sec 14-0916 NDRC 1943, 46 CJ 1315, Sec 138, 39 Am Jur 628, Sec 33. That attempted deed was void.
Nick Shuck -had been granted old age assistance on April 10, 1941 under Chapter 211 SL 1937, Sec 50-0707 NDRC 1943. Thereafter a homestead statement under See 22 of said chapter *638 was duly executed by the Executive Director of the Public Welfare Board of North Dakota and recorded in the Office of the Register of Deeds of Dunn County, North Dakota, on May 12, 1941, in Book 20; on page 413. The Public Welfare Board is entitled to all the rights against this property granted to it by said chapter for the old age assistance furnished by it to Nick Shuck and Rose Shuck, his wife..
That leaves for consideration the claim of Mathilda Kukla, otherwise known as Mathilda Kukla Shuck. She kept house for Nick Shuck the last month of his life. They had obtained a license tо marry but he died before the ceremony was-performed. Pie, however, gave her a quit claim deed.to the premises here involved, dated April 14, 1948, recorded, after Nick Shuck’s death, in Book 38, page 64 of Quit Claim Deeds in the Office of the Register of Deeds of Dunn County, North Dakota.
Sec 22 of Chapter 211, SL 1937, Sec 50-0707 NDRC 1943, provides that “after the recording of the homestead statement, any instrument or encumbrance executed by such applicant for old age assistance without the approval of the state agency shall be null and void.” The homestead statement had been filed long-before the issuance of that deed. The Public Welfare Board did not consent to its exеcution. Mathilda Kukla was well aware that Nick Shuck was receiving old age assistance. That deed is null and void under the statute.
It follows that the title to Nick Shuck’s interest in the property involved is in his legal heirs subject to the claim of the Public Welfare Board of North Dakota, for old age assistance furnished Nick Shuck and Rose. Shuck according to law.
The case is reversed and remanded to the District Court with directions to render judgment in accordance herewith.