214 N.W. 42 | N.D. | 1927
This action is brought by the plaintiff Grant Smith, administrator of the Estate of Herbert Winifield Borst, deceased, to quiet title to certain lots in the city of Stanley.
It appears that in September, 1920, Borst bought the real estate in question, a residence property in the city of Stanley, from Lillian G. Warren. The purchase was made on contract. The price agreed to be paid was $600. A portion of the purchase price was paid at the time and the remainder was to be paid in installments of $25 per month. Borst went into possession and the payments as required were made until May, 1921. In August, 1921, Borst died. He left a widow and several children. At the time of his death there remained unpaid on the contract $110. Mrs. Warren lived in California. At the time she executed the contract of sale to the real property in question she also executed a deed to the property naming Borst as grantee therein. A.J. Ross of Stanley, the president of the Citizens State Bank at that place, was her agent. She sent the papers to him and directed that the payments be made at the bank, which was done so far as they were made. Ross retained the deed. After Borst's death Mrs. Borst was appointed administratrix of his estate. She was in straightened financial circumstances and was unable to complete the payments on the contract. She *435 had some correspondence with Mrs. Warren, either directly or through Ross, and it was agreed that the rents from the property should be applied on the contract as they were collected. Mrs. Borst rented the property and in this way $30 was paid to the bank to be applied on the contract. In the meantime Ross was pressing for the payment of the balance. He finally wrote and said that unless the contract was satisfied he was directed to foreclose it. The defendant Fladeland is Mrs. Borst's father. Some negotiations were had between Mrs. Borst and the defendant regarding his taking over the property. Finally, Mrs. Borst wrote him saying, among other things, "But if you don't care to trade I will give you what we have put into it if you care for the place or move back there, but it sure takes more for living there, or did rather." There were no further dealings between them but Fladeland took the matter up with Ross. Ross told him that there remained due and unpaid on the contract $250.00. This Fladeland paid and Ross erased Borst's name as grantee in the deed, inserted Fladeland's and delivered the instrument to him. Neither Mrs. Warren nor Mrs. Borst knew of this erasure and insertion and neither consented thereto. Fladeland did not know of it either. Fladeland then went into possession. The taxes were then in arrears and Fladeland paid $98.87 back taxes. Subsequently he paid other taxes as they fell due. Thereafter he either occupied the premises himself or leased them. Mrs. Warren testifies that after Borst's death she had some correspondence with Mrs. Borst, as well as with Ross, regarding the matter; that she agreed to compromise the payments and to accept $60 in full satisfaction of the contract. This amount and no more Ross paid to her. She had no knowledge that Ross had dealt with Fladeland or had given him a deed. Subsequently Mrs. Borst remarried and the plaintiff Smith was appointed administrator of Borst's estate. He brings this action to quiet title claiming that at the time of Borst's death the equitable title was in Borst; that his heirs at law are still the owners of such title, and that anything that may have been done by Ross or Fladeland with respect to the satisfaction of the contract and the taking of a deed in Fladeland's name was ineffective to divest them of their interest in the property.
The cause was tried to the court. The court made findings of fact and conclusions of law favorable to the defendant. Judgment was entered *436 accordingly. The appellant now brings the case to this court on appeal from the judgment and asks for a trial de novo.
"We have carefully considered the brief record presented to us and are of the opinion that the judgment as entered cannot be sustained. It does not appear that Mrs. Borst had any authority to dispose of the equity in this property. In any event, what was said and done between her and Fladeland was of the most informal character and cannot amount to a transfer of any interest in the property. It further appears that Ross had no authority to erase Borst's name as grantee in the deed and insert Fladeland's. So title to the premises should be quieted in the heirs at law of the deceased and in the administrator for purposes of administration. See Magoffin v. Watros,
It is therefore ordered that the case be remanded for a re-trial upon these questions, and they having been determined, that judgment be entered quieting title to the premises involved in the heirs at law of the deceased Borst, and in the administrator of his estate for purposes of administration, conditioned, however, upon the administrator paying *437 to defendant Fladeland such sum, if any, as may be found due to him after a re-trial has been had as hereinbefore directed. The appellant will have his costs on this appeal.
BIRDZELL, Ch. J., and CHRISTIANSON, BURKE, BURR, JJ., concur.