Benson v. Benson

• Decision Date: 03 December 1934
• Docket Number: 7675.
• Citation: 257 N.W. 460,63 S.D. 241
• Parties: BENSON v. BENSON et al.
• Court: South Dakota Supreme Court

257 N.W. 460

63 S.D. 241

BENSON v. BENSON et al.

No. 7675.

Supreme Court of South Dakota

December 3, 1934

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Suit by Anna Benson against Sverdrup M. Benson and others. From an adverse decree and an order denying their motion for a new trial, defendants appeal.

Affirmed.

C. O Trygstad and Hall & Schlosser, all of Brookings, for appellants.

James O. Berdahl, of Sioux Falls, for respondent.

WARREN Judge.

The plaintiff, a widow, brought suit in equity against three of her children, the defendants herein, to quiet title to a two-thirds interest in a quarter section of land in Minnehaha county and a third interest in a certain quarter section of land in Moody county, S.D. The court found that she was 89 years of age; that she did not read the English language and except for language common in daily use had some difficulty in understanding the English language. On the 22d day of August, 1930, at the solicitation of defendants Sverdrup M Benson and Matilda L. Thompson, a son and a daughter plaintiff signed two instruments in the form of warranty deeds, wherein and whereby she purported to convey her interests in said lands subject to certain restrictions. Findings and conclusions were made and a judgment thereupon entered quieting title in the plaintiff. A motion for new trial was made, which motion was considered by the trial court and subsequently denied. Sverdrup M. Benson, Matilda L Thompson, and Chris H. Olson have appealed to this court from the order and judgment entered therein.

At the time respondent signed the two warranty deeds, two of her sons, Chris and Emil, were absent from the state. The deeds were left with the scrivener who held them from the 22d of August, 1930, until the 10th of September, 1930, when he had the deeds recorded. It is respondent's contention that there was no complete delivery of the deeds, for the reason that it was agreed at the time the deeds were left with the scrivener that they should be retained by him until such time as Chris and Emil returned, at which time respondent was to consult with them and then either approve or disapprove the transaction. The trial court sustained respondent in this contention. We are satisfied that the evidence is sufficient to sustain respondent's contention and the finding of the court in support thereof. It is essential to the validity of a deed that there be a...