Bernauer v. McCaull-Webster Elevator Co.

• Decision Date: 24 February 1919
• Citation: 171 N.W. 282,41 N.D. 561
• Parties: BERNAUER v. McCAULL-WEBSTER ELEVATOR CO.
• Court: North Dakota Supreme Court

41 N.D. 561

171 N.W. 282

BERNAUER

v.McCAULL-WEBSTER ELEVATOR CO.

Supreme Court of North Dakota.

Feb. 6, 1919.

Rehearing Denied Feb. 24, 1919.

Syllabus by the Court.

(1) In an action to determine adverse claims, where the plaintiff asserts a title as vendee under a contract for a deed, and where the appellant under a general denial seeks to defeat the title of the plaintiff by reason of a resulting trust and a conveyance made to defraud creditors, it is incumbent upon the appellant to establish such resulting trust or conveyance made to defraud creditors by clear, substantial, and satisfactory proof.

(2) Held, under the evidence, that the trial court properly quieted title in the plaintiff as vendee in a contract for a deed as against the claims of the appellant herein, asserting liens upon the premises involved, made by a third party, to whom the appellant asserted that the title in such contract for a deed inured by reason of a resulting trust, or by reason of the conveyance having been made to defraud creditors.

Appeal from District Court, Hettinger County; Crawford, Judge.

Action to determine adverse claims by Anna Bernauer against the McCaull-Webster Elevator Company, a corporation, consolidated with an action by Moreau Lumber Company against Anna Bernauer and others. Separate judgment in first action quieting title in plaintiff, and defendant appeals. Affirmed.Thomas H. Pugh and Otto Thress, both of Dickinson, for appellant.

Jacobsen & Murray, of Mott, for respondent.

BRONSON, J.

This is an action brought to determine adverse claims under the statute (section 8144, C. L. 1913).

On October 11, 1915, the Moreau Lumber Company, the owner in fee of the farm lands involved, gave a contract for a deed to the plaintiff and respondent herein. Thereafter, on April 27, 1916, Nick Hoffman and wife made a mortgage on the lands involved herein to the appellant, the McCaull-Webster Elevator Company.

In this action the appellant in its answer sets forth only a general denial. Upon the trial another action, with said Moreau Lumber Company as plaintiff, and Anna Bernauer, the respondent and appellant herein, and others as defendants, was consolidated with this action and tried together. The district court pursuant to findings made, rendered a separate judgment in this action quieting title in the plaintiff as the equitable owner of the premises herein, and adjudging the mortgage as well as other liens in favor of such appellant by said Nick Hoffman to be invalid as against the title of the plaintiff.

At the trial it was stipulated that the Moreau Lumber Company was the owner of the premises involved, and that the lien of the appellant, if any, was subordinate to the rights of such Moreau Lumber Company. The appellant herein prosecutes this appeal, and demands a trial de novo in this court, challenging the judgment of the trial court, upon grounds that the plaintiff has failed to establish in the record her title to the premises; that the contract for such deed was made to said plaintiff in trust for Nick Hoffman; and that, further, such contract is void, because made to defraud creditors. In this action appellant has not demanded that its rights and claims be determined.

[1][2] The sole issue presented, as involved herein, is the question whether or not the plaintiff in this action has established her title as found by the trial court. The evidence in the record well establishes, by the contract itself, the right and interest of the plaintiff thereunder, unless, the record shows, in accordance with the contentions of the appellant that a resulting trust arose, by reason of the fact that the consideration for the contract in question was paid by one Nick Hoffman, and the title taken in the name of the plaintiff (section 5365, C. L. 1913), or that such contract was so made to defraud creditors (section 7220, C. L. 1913).

The evidence in the record is insufficient to establish clearly or by substantial proof that the consideration was so paid by Nick Hoffman. On the contrary, there is some evidence in the record that part of the consideration at least was paid by the plaintiff. Likewise with respect to the contention of the appellant that the contract so made to the plaintiff was void, because made to defraud creditors, under section 7220, C. L. 1913, the evidence again is insufficient, outside of the question of the appellant's pleading any issue in that regard to establish any fraudulent intent.

We deem it unnecessary to discuss at length in this opinion the evidence in that regard.We deem it sufficient to state that the...