Stianson v. Stianson
| Decision Date | 12 April 1918 |
| Docket Number | 4024 |
| Citation | 167 N.W. 237,40 S.D. 322 |
| Parties | KATHERINE STIANSON et al., Plaintiff and respondents, v. STIAN STIANSON, Defendant and appellant. |
| Court | South Dakota Supreme Court |
STIAN STIANSON, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Day County, SD Hon. Thomas L. Bouck, Judge #4024--Reversed Anderson & Waddell, H. H. Potter Attorneys for Appellant. Lewis W. Bicknell, Campbell & Walton Attorneys for Respondents. Opinion filed April 12, 1918
Action by plaintiffs, claiming as cotenants with defendant, to establish a trust in defendant as to real property, to quiet title in plaintiffs, and for an accounting for rents and profits. Defendant filed a demurrer to the complaint for want of facts, which was overruled, and this ruling is assigned as error. Thereafter defendant answered, and the cause was tried by the court upon the merits, resulting adversely to defendant. It is settled in this jurisdiction that the filling of an answer and a trial on the merits after a demurrer waives the demurrer and the right of appeal from an adverse decision thereon. Pierson v. Minnehaha Co., Ann. Cas. 1913B, 386. This waiver, however, does not extend to an alleged error presenting a like question as to the sufficiency of facts, or want of jurisdiction upon a proper record on appeal from the judgment. Pierson v. Minnehaha Co., 38 LRA (NS) 261.
It is not the theory of our system of appellate procedure to permit the reversal of judgments after a trial upon the merits, for defects in pleadings which might have been remedied, by amendment prior to or at the trial. But the sufficiency or insufficiency of the facts proved at the trial, or want of jurisdiction of the person or subject-matter, apparent from the trial record, may always be reviewed upon proper exceptions and assignments of error. Questions as to the sufficiency or insufficiency of the facts proved are controlled by the rules governing the review of findings of fact by the trial court. Any questions raised by the demurrer as to the sufficiency of the facts pleaded have become immaterial, and are not subject to review upon this appeal. But it is proper, regardless of the insufficiency of the pleadings, to review assignments or error which challenge the sufficiency of the evidence to sustain the findings and judgment. The assignments of error in this case present no question as to the competency or relevancy of evidence. The following facts are undisputed: One John K. Stianson died intestate in Day county, on November 29, 1895. The decedent at the time of his death, was owner of the real property in dispute. The plaintiffs and defendant are heirs at law of the decedent, each entitled to an undivided one-fifth interest in said real property. On January 10, 1896, the defendant, on his own petition, was appointed administrator and qualified and acted until January 19, 1898, when administration proceedings were closed and he was discharged by Order of the county court. When John K. Stianson died, there was a mortgage on the real property in the sum of $350, which became due shortly after defendant was appointed administrator, remained unpaid, and was foreclosed on March 27, 1897. Defendant purchased the land at the foreclosure sale in his own flame for $433, the amount due on the mortgage, and on March 27, 1898, received the sheriff's deed therefor in his own name. The deed was duly recorded the day it was issued. Prior to receiving said deed, defendant was in possession of the premises as administrator. When he took possession of the property as administrator, in January, 1896, the plaintiffs Katherine Stianson and Sam K. Stianson were of adult age, and plaintiffs Laura and Carrie Stianson, twin sisters, were about 10 years of age.
It will be noted that the sheriff's deed was issued to defendant about two months after his discharge as administrator. From that time he remained in the exclusive possession, occupancy, and use of the land, until the beginning of this action, on September 27, 1914. The plaintiffs Laura Stianson and Carrie Stianson became of adult age more than 9 years prior to the commencement of this action. The mortgage and the proceedings on foreclosure were all made matters of public record as they transpired. On February 29, 1916, after the entry of judgment in the action awarding plaintiffs and defendants each a one-fifth interest in the real estate as heirs and cotenants, the plaintiff Sam K. Stianson filed a disclaimer of any right or title thereto, and the judgment was modified to adjudge a dismissal of the action on its merits as to him. The effect of the modified judgment was to award to Katherine, Laura, and Carrie Stianson each a one-fifth interest in the land, the other two-fifths interest remaining in the defendant. Defendant denied plaintiffs' allegations of fraud in suffering foreclosure proceedings, and in his purchase of the land at the foreclosure sale; alleged that both the estate and the plaintiff heirs were without funds or resources to pay the mortgage indebtedness; that plaintiffs Katherine Stianson and Laura and Carrie Stianson consented to his becoming purchaser of their interests at the foreclosure sale; that he had been in open, notorious, and adverse possession since the date of the sheriff' deed, with the full knowledge and acquiescence of all the plaintiffs; pleaded both the 6 and 10 years' statutes of limitation; and that plaintiffs had been guilty of laches which should estop them from maintaining this action.
The trial court found, in substance, that the defendant, while acting as administrator, permitted the mortgage to be foreclosed, and purchased the land with intent to defraud plaintiffs and deprive them of their interest in the estate; that none of the plaintiffs had any knowledge of the wrongful acts of the defendant in thus acquiring title o their interests in the property, and did not know of their rights until shortly before this action was commenced; that they had proceeded with due diligence in seeking to enforce their rights, and that plaintiffs never knew of and never consented to or acquiesced in the purchase by defendant of their 'interests.
Appellant assigns as error the finding of the trial court that he suffered the mortgage to be foreclosed and purchased the land with intent to defraud plaintiffs and deprive them of their interest therein, contending that there is no evidence in the record to sustain such a finding. Appellant also assigns as error the finding of the trial court that plaintiffs had no knowledge of defendant's acts in acquiring title to the property, for the reason that such finding is against the preponderance of the evidence and wholly unsupported thereby. Appellant further assigns as error the finding of the trial court that the plaintiff's never acquiesced in his purchase and possession of the land, alleging that such finding is contrary to the clear preponderance of the evidence. A careful scrutiny of the evidence and of the entire record fails to show any act or any conduct on the part of defendant from which an actual fraudulent intent might be inferred. So far as the record discloses he never attempted to conceal his acts, or by word or deed to deceive or mislead plaintiffs, or any of them, in his dealings with them or with the estate, or with the real property. It stands undisputed that the estate was insolvent, and that the general creditors received only about 75 cents on the dollar from the estate. It is shown by the testimony of the plaintiffs themselves that they were wholly without means to redeem or protect their interests from the foreclosure sale. The undisputed evidence shows that during the period of administration the rents and profits from the land were accounted for and turned into the estate in full. The trial court founds, in substance, that from the date of the sheriff's deed, the defendant excluded plaintiffs from possession of the land continued in uninterrupted possession thereof; received the rents and profits arising therefrom, during all the years from 1898; and paid the taxes on the land each year down to the time of the trial. The purchase of the entire estate at the mortgage sale by the respondent as cotenant was not in itself a fraudulent act. The trust relation as to his cotenants would arise only after he had acquired title at such sale, and fraud in that relation would have its inception only when he intended and attempted wrongfully to appropriate to his own: use the interests of his cotenants. Mandeville v. Solomon, 39 Cal. 125. His relation to the property as cotenant and his relation to the same property as administrator of the estate to which it belonged are distinct. The consequences which flow from his acquisition of the title of his cotenants and those which flow from his purchase of property belonging to the estate of which he was administrator are not controlled by the same presumptions and rules. But the trust which would arise in either case is not an express, but a constructive or implied, trust. The relation of one acting as administrator, to real property which belongs to the estate must be considered separately.
Respondents counsel contend that an administrator, as such, becomes the trustee of an express trust as to the title to real property belonging to the estate. The fallacy of his as- sumption is apparent from the fact that the title descends to and becomes vested in the heirs upon the death of the decedent, subject only to its disposition for payment of creditors, and never becomes vested in the administrator in the course of administration proceedings. Under out statute this is true also of the title to personal property. 'Civil Code, § 1093. The administrator is vested, not with the title, but with certain powers and duties as a trustee, and where, through a wrongful Oct constituting a violation of his duties as such trustee, he acquires the title to property, either real or personal, belonging to the estate, he holds such title as trustee...
To continue reading
Request your trial