Bolyea v. First Presbyterian Church of Wilton, 8786

• Decision Date: 29 March 1972
• Docket Number: No. 8786,8786
• Citation: 196 N.W.2d 149,55 A.L.R.3d 1304
• Parties: Sandra S. BOLYEA, a/k/a Sandra C. Schliter, Plaintiff and Respondent, v. The FIRST PRESBYTERIAN CHURCH OF WILTON, N.D., et al., Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 149

196 N.W.2d 149

55 A.L.R.3d 1304

Sandra S. BOLYEA, a/k/a Sandra C. Schliter, Plaintiff and Respondent, v. The FIRST PRESBYTERIAN CHURCH OF WILTON, N.D., et al.,

Defendants and Appellants.

Civ. No. 8786.

Supreme Court of North Dakota.

March 29, 1972.

Syllabus by the Court

1. Where a client openly converses with his attorney in the presence and hearing of third persons, the conversation is not of a confidential character and is removed from the protection of the attorney-client privilege rule.

2. An attorney, who acted as a mere scrivener in preparing a deed in accordance with instructions given to him by his client, may testify as to the transaction.

3. The appealing party has the burden not only of establishing error by the trial court but must further show that the error was prejudicial.

4. Where the grantor parts with all control over a deed by delivering it to the grantee, intending to part with all authority and dominion over the deed, such delivery passes title.

5. Where a deed has been delivered to the grantee in a manner to divest the grantor of title, subsequent declarations of the grantor tending to impeach the deed are inadmissible.

6. In an equity case, tried with an advisory jury, errors in the giving or refusal to give certain instructions are not subject to review on appeal as the jury's answers to the special interrogatories are only advisory.

7. Mere irregularity in framing the findings of fact and conclusions of law, where no harm or prejudice is shown as a result, will not constitute grounds for the reversal of a judgment.

8. The findings of fact and conclusions of law here been reviewed and it is held, for reasons stated in the opinion, that the findings of fact support the conclusion of law that grantor intended to transfer title to the real estate.

Conmy, Conmy, Rosenberg, Lucas & Olson, Bismarck, for Max D. Rosenberg, Executor of Estate of Norman Hall, deceased, defendant and appellant.

Williams & Lindell, Washburn, for The First Presbyterian Church of Wilton, N.D., The First Lutheran Church of Washburn, N.D., and The Washborn Methodist Church, Washburn, N.D., defendants and appellants.

Zuger, Bucklin & Zuger, Bismarck, for plaintiff and respondent.

TEIGEN, Judge.

The defendants (hereinafter Hall Estate) have appealed from a judgment quieting the title to approximately fourteen quarter sections of farm land in the plaintiff, Sandra S. Bolyea, a/k/a Sandra C. Schliter (hereinafter Sandra), and against these defendants.

The land in issue had been owned by Norman Hall, who died testate on November 23, 1970.

Sandra's assertion to ownership of the land is based on her claim that Norman Hall deeded the land to her on or about October 24, 1963, but that the deeds were not recorded and were lost.

The Hall Estate answered and, in addition to a general denial, alleged lack of consideration incompetence of Norman Hall, and execution under undue influence. They also claim that the three churches named in this title are the owners, as devisees under the Last Will and Testament of Norman Hall, dated April 22, 1969.

The action was tried to the court with an advisory jury. The jury answered all special interrogatories submitted to it in Sandra's favor. The answers of the jury were accepted by the trial court in making its findings of fact. Judgment was entered in favor of the plaintiff, quieting the title to the land in Sandra. The issues in this appeal, formed by the specifications of error served with the notice of appeal, present only questions of law. In order to understand the issues presented on this appeal, a brief statement of the facts follows.

Sandra was the stepdaughter of Norman Hall. Sandra's mother, Valena Schliter, and Norman Hall were married on November 2, 1960, when Sandra was sixteen years of age. Sandra had known Norman Hall since she was eight or nine years old. She does not remember her biological father, whom her mother had divorced many years earlier. Sandra's mother Valena (Norman Hall's wife) died on October 16, 1963. The evidence establishes, and the jury and the trial court found, that, eight days later, to wit, on October 24, 1963, Norman Hall executed two quitclaim deeds conveying the land in issue in this action to Sandra, and delivered both deeds to her; that, subsequently, for the purpose of safekeeping, he reobtained possession of the deeds. The deeds were not recorded. Norman Hall died on November 23, 1970. Following his death a search was made for the deeds in question but they were not found and are deemed lost. The Last Will and Testament of Norman Hall, dated April 22, 1969, duly certified by the county court where it had been admitted to probate, was received in evidence. This will makes a number of bequests to various beneficiaries and purports to devise 'all of my real estate, wheresoever situated or located in equal shares' to the three churches named in the title of this action. The will does not describe the testator's real estate and the record does not establish whether or not Norman Hall owned real estate in addition to the real estate described in this action. The evidence establishes that, subsequent to October 24, 1963, and until Norman Hall's death on November 23, 1970, he continued to occupy the real estate in issue in this action, to operate it, to take the profits, and to pay the taxes.

The Hall Estate has specified a number of claimed errors. They have been consolidated into six issues, which are relied upon for a reversal and new trial. Three of these issues assert error in ruling on objections to evidence; one asserts error in refusing to give a requested instruction; and two involve the court's findings of fact and conclusions of law, asserting that certain findings were improper findings and that the findings of fact do not support the conclusions of law.

No claim is made that the evidence admitted does not support the judgment.

We will first consider the three assignments of error which pertain to the admission and exclusion of certain evidence, as follows:

First: The contention that it was error for the trial court to permit the attorney and his secretary, who drew the lost deeds, to testify concerning communications made by Norman Hall, now deceased, and advice given and work done by the attorney for his client.

Second: The contention that the trial court erred in denying a motion to strike the testimony of Sandra on the grounds that it was irrelevant and in violation of the dead man's statute. Section 31--01--03, N.D.C.C.

Third: The claim that it was error for the trial court to exclude testimony of three potential witnesses concerning acts and declarations of Norman Hall, the grantor subsequent to the execution and delivery of the lost deeds.

With respect to the assignment that it was error to admit the testimony of the attorney and his secretary who drew the deeds, the Hall Estate cites Section 31--01--06(1), N.D.C.C., which provides:

'An attorney, without the consent of his client, cannot be examined as to any communication made by the client to him, nor as to his advice given thereon in the course of professional employment.'

When this objection was raised in the trial court, it found the evidence at that point established that Norman Hall did not intend that the matters about which he consulted the attorney were to be confidential or were to be withheld from Sandra. Evidence of record when the attorney was called established that Norman Hall had chosen to consult with his attorney in the presence of others who accompanied him to the attorney's office.

Before the attorney was called to the witness stand, two witnesses had testified relative to the visit to the attorney's office. These witnesses were Halley Nelson and his wife Grace. It appears from their testimony that, on October 24, 1963, Norman Hall invited Sandra and the Nelsons to accompany him from the Wilton area to Bismarck, North Dakota, where he was going for the purpose of transacting some business. With Mr. Hall driving his automobile, these four people proceeded to Bismarck. Upon arrival, Mr. Hall first went into the Dakota National Bank but returned shortly to his automobile and he then drove to Mandan, North Dakota. They had lunch in Mandan and, following lunch, they walked together down the street looking for an attorney's office. They passed by the office of the first attorney they found because Mr. Hall had some objection to him. They then went on and entered the second attorney's office, which was the office of Clarence J. Schauss, the attorney whose testimony was admitted, over objection, in this trial.

According to these witnesses they entered Attorney Schauss's office, where Norman Hall stated to Attorney Schauss, in their presence, that the purpose of his call was to ask Attorney Schauss to prepare deeds whereby he, Norman Hall, would convey his land to Sandra. After having stated the purpose of the visit, in the presence of these witnesses, Attorney Schauss advised Mr. Hall relative to the law pertaining to transfers--the requirements and the effects thereof--and recommended that instead of deeds he should draw a will. An argument resulted, during which Halley Nelson told Attorney Schauss that Hall wanted deeds, not a will, for tax reasons. During the argument Norman Hall made his intent and desires clear to Attorney Schauss, who agreed to draw the deeds as requested. Following a settlement of the argument and the agreement to draw the deeds, the Nelsons seated themselves in the waiting room of the office and Attorney Schauss, Norman Hall and Sandra went into an adjoining room, which apparently was Mr. Schauss's private office. However, they left the door open and some of the conversation could be overheard by the Nelsons.

The trial court's decision to overrule the objection was not in error. The evidence establishes that there was no attempt on the part of Mr. Hall to keep the transaction confidential, and that...