Barrett v. Zenisek

• Decision Date: 11 September 1957
• Docket Number: No. 9367,9367
• Citation: 315 P.2d 1001,132 Mont. 229
• Parties: Emma Rosypal BARRETT, Plaintiff and Appellant, v. Frank ZENISEK et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 1001

315 P.2d 1001

132 Mont. 229

Emma Rosypal BARRETT, Plaintiff and Appellant, v. Frank ZENISEK et al., Defendants and Respondents.

No. 9367.

Supreme Court of Montana.

Sept. 11, 1957.

Rehearing Denied Oct. 17, 1957.

Ralph J. Anderson and Stanley P. Sorenson, Helena, for appellant.

Ralph J. Anderson, Helena, argued orally for appellant.

H. O. Vralsted, Helena, for respondents.

H. O. Vralsted, Helena, argued orally for respondents.

HARRISON, Chief Justice.

This action was initiated by Emma Rosypal Barrett to have defendants, Frank Zenisek, Carrie A. Peterson, and Barbie Zenisek, declared constructive trustees of certain land situated in Fergus County, and that the defendants be required to account to plaintiff for the income from said lands, less any amounts paid for taxes thereon.

More than forty-five years ago, in the homestead days of Fergus County, Montana, Vencel Zenisek with his wife, Barbara, resided on a farm near the town of Coffee Creek. Their children resided with them, with the exception of their married daughter, Mary Rosypal, plaintiff's mother.

Mary Rosypal had made homestead entry on a nearby 160 acre tract of land, the property in dispute, in the year 1909. The plaintiff was born February 13, 1907. Apparently plaintiff's father, Mr. Rosypal, died shortly after Mary filed on the homestead and her mother then married Clarence Moore. In 1912 Mary Rosypal Moore was issued a patent to the land. Apparently Mr. Moore died in the interim and she married one Frank Graves who deserted his family in 1917. The farming of the 160 acre tract was carried on for the most part by the brothers and father of plaintiff's mother.

From six to eight years before her death in December of 1919, plaintiff's mother was very ill, suffering from pulmonary tuberculosis, and because her income was insufficient to care for herself and plaintiff her father provided for them.

On December 17, 1917, Mary Rosypal Graves, or Mary Moore Graves, plaintiff's mother, conveyed the land by general warranty deed to her father, subject to a mortgage of $1,000 as recited therein, and the conveyance in addition covered a house and lot in Coffee Creek. She deeded him the property to get money to pay the expenses of a trip to California for her health and she received the sum of $700. She and her child remained in California about six months, and were destitute when they returned.

As of 1917 plaintiff's witness established the value of the land at $5 to $7 per acre which was approximately the amount of the mortgage. The defendants estimated the value at $3 to $4 per acre. Plaintiff did not establish the value of the house and lot in Coffee Creek, but by inference it was perhaps $700. In 1924 the assessed value of the 160 acres and the town property was $1,655.

On December 19, 1913, Vencel Zenisek made a will, leaving all his property to his wife, Barbara, and made no mention of any of his children. He died January 14, 1919, survived by his wife and six children, including plaintiff's mother. His will was admitted to probate April 12, 1919, without contest.

When plaintiff's mother died in December 1919, she left no estate, and her funeral expenses were paid by her relatives. The plaintiff continued to be supported and cared for by her grandmother, aunts and uncles.

In settling the estate of Vencel Zenisek, the attorney for the estate, by means of a warranty deed, obtained releases from all the children in favor of the widow, including the plaintiff, than a minor thirteen years old. Thereafter final account was settled and allowed and distribution made to the widow. The estate was heavily encumbered.

The defendant, Frank Zenisek, worked for wages to keep the plaintiff in high school in Lewiston for two years. In 1924 she married at the age of seventeen and continued to live in Lewistown, Montana, until 1926 when she moved to Wisconsin.

The widow, Barbara Zenisek, on June 20, 1921, mortgaged the farm property in question here for $1,000. On July 18, 1922, she conveyed this land and other tracts to her unmarried daughter, Barbie Zenisek.

On May 1, 1929, Barbie Zenisek conveyed an undivided one-third interest in the property to her sister, Carrie Peterson, and by a separate instrument made the same day, conveyed a one-third interest in the property to her brother, Frank Zenisek, retaining one-third for herself.

In 1931 the taxes became delinquent and were not paid, and Fergus County sold the property at tax sale; it was struck off to the county for $63.36. No redemption having been made, plaintiff's husband, on August 26, 1940, purchased the assignment from Fergus County for $209.07, and commenced action for a tax deed; on September 11, 1940, the defendant, Frank Zenisek, redeemed the property. Thereafter on August 22, 1941, the plaintiff filed her complaint herein. The plaintiff was never in possession of the property, paid no taxes thereon, and did not pay off any mortgage thereon.

Plaintiff's second amended complaint is based upon the theory that the deed from her mother, Mary Moore Graves, to Vencel Zenisek in 1917 was delivered conditionally to him to be held in trust for the plaintiff; that plaintiff's mother never intended to pass beneficial interest in any property except the house and lot in Coffee Creek, and that the money she received for the conveyance ($700) was in consideration of the house and lot in town and was never meant to be consideration for the homestead property. She also alleges that the deed executed by herself during the probate of Vencel's will was without consideration, and was executed upon the fraudulent representations of the defendants that she would eventually get her land back; that ever since, in fact up until the time this suit was filed, the defendants have made representations to her promising to hold the land for her and convey it to her on her request; and that such representations were to induce her to refrain from bringing this action although in fact they had no intention of deeding her the property.

Defendants in their answer and cross-complaint put in issue all of the affirmative allegations of the complaint which tend to set up a constructive trust in the property, and deny the allegations that plaintiff claimed the property as her own, or that the defendants had ever made any fraudulent representations to her. Defendants also set up the affirmative defense of laches and estoppel and in their cross-complaint asked the court to quiet title in themselves, and to declare them legal and equitable owners of the land because they had been in open, notorious, actual, adverse and hostile possession and occupancy of the property under color of title and claim of right for more than ten years last past, and that they and their predecessors in title had paid all taxes on the land.

The reply of the plaintiff was filed in 1944 and put in issue the affirmative defenses in the answer and the possessory claims raised in the cross-complaint of the defendants.

On December 6, 1951, the defendants filed motion for judgment on the pleadings. Trial was finally had and judgment rendered in 1953.

At the trial the plaintiff was asked what her mother had said to her after she deeded the property to Vencel Zenisek, and she replied: 'She told me she signed the place over to her father so in case anything happened to her while we were in California he would handle it and take care of it for me so that Frank Graves would not get any.' The plaintiff, her sister-in-law, Leota Barrett, and one Anton Tesarek, testified to the effect that certain of the defendants and Barbara, plaintiff's grandmother, had made statements indicating that the land was held for the plaintiff and would be conveyed to her at some future time. Both Barbara and Barbie Zenisek, to whom certain of the representations were attributed, were dead at the time this case came to trial. Frank Zenisek, one of the defendants, had supposedly said that they (the defendants in this action) would settle up with the plaintiff when conditions were a little better. Plaintiff testified that the first time she learned the defendants did not intend to convey the land to her was just prior to the commencement of this action.

No reason for delaying the trial until 1953 was given by the plaintiff.

The defendants in their testimony controverted the above testimony with reference to their holding the land for the benefit of the plaintiff, and also denied plaintiff had made any claim thereto. It was contended at the trial by the defendants that the deed to Vencel Zenisek of the land in 1917 was an absolute sale of the property upon a good and sufficient consideration; that at no time thereafter had plaintiff's mother made any claim to the property or made any objection to including the land in the estate of Vencel Zenisek, although she was alive at the commencement of those proceedings. Frank Zenisek testified plaintiff's mother had told him she sold the property to her father. The evidence showed that defendants had paid all taxes on the property since the death of Vencel Zenisek, and that at no time since then had plaintiff been on or in possession thereof.

At the conclusion of the trial the court made the following findings of fact: (1) That plaintiff had failed to establish by a preponderance of the evidence the material allegations of her complaint; (2) That defendants had been in adverse possession of the property for more than ten years, and had paid the taxes on the property; (3) That plaintiff was guilty of laches in asserting her claim to the premises; and (4) That defendants' cross-complaint had been sustained by the proof in the action.

Based thereon the court made and entered its conclusions of law, which in effect were that plaintiff's complaint be dismissed; the title to the property be quieted in the defendants; and that defendants have their costs and disbursements in the action. Judgment was thereafter entered in...