Brett v. The St. Paul Trust Co.

• Decision Date: 03 April 1923
• Docket Number: 358
• Citation: 193 N.W. 317,49 N.D. 653
• Court: North Dakota Supreme Court

193 N.W. 317

49 N.D. 653

MARGARET STRONG BRETT and Warren B. Strong, Respondents, v. The ST. PAUL TRUST COMPANY, a Corporation, Robert J. Strong, Mrs. Robert J. Strong, Maggie Strong, and All Other Persons Unknown Claiming Any Estate or Interest in, or Lien or Encumbrance upon, the Property Described in the Complaint, Defendants.

MRS. ROBERT J. STRONG, Appellant

No. 358

Supreme Court of North Dakota

April 3, 1923

In District Court, Pembina County, Burr, J.

Action to determine adverse claims.

Defendant Ella C. Strong (Mrs. Robert J. Strong), has appealed from a judgment quieting title in plaintiffs.

Judgment reversed and cause remanded for further proceedings.

Reversed and remanded. Appellant recovered costs.

Brickner & Knox, for appellant.

In a statutory action to determine adverse claims to real property it is incumbent upon the plaintiff to prove a title sufficient to authorize him to maintain the action, and until he furnished such proof, the defendant is not required to prove his adverse claim, and that where a tax deed is void upon its face it is not sufficient to sustain plaintiff's action. Youker v. Hobart, 115 N.W. 839.

"A life estate in land may be created by a will providing that the devisee may enjoy the income for life."

"A gift of the income of personal property or of the rents and profits of land, perpetual or without limit as to time carries the personal property absolutely or the lands in fee simple."

"If the enjoyment of the income be restricted to the life of the legatee or devisee, a life estate in the property passes." 30 Enc. Law, 743; Lewis v. Harrower, 197 Ill. 315; Andrews v. Boyd, 5 Me. 199; Butterfield v. Haskins, 33 Me. 392; Stone v. North, 41 Me. 265; Sampson v. Randall, 72 Me. 109; Fuller v. Fuller, 84 Me. 475; Parine v. Forsaith, 86 Me. 357; Wilson v. Curtis, 90 Me. 463; Fogler v. Titcomb, 92 Me. 184; Diament v. Lore, 31 N.J.L. 220.

"The rule is well settled that the possession of land by a tenant for life is not adverse to the remainderman or reversioner." 1 Cyc. 1056 and cases cited.

"Until the death of the life tenant the statute does not begin to run in favor of the life tenant or his grantee against the remainderman whether the estate in remainder be vested or contingent, legal or equitable." Lamar v. Pearre, 82 Ga. 354, 9 S.E. 1043; Augusta v. Radcliffe, 66 Ga. 469.

"Thus a tenant for life cannot debar the rights of a remainderman by a surrender or a release, or by any other voluntary acts for merging the lesser estate into the greater." Moore v. Luce, 29 Pa. 260, 72 Am. Dec. 629.

"The life tenant may not, by failure to pay taxes, acquire a certain adverse claim founded upon a tax title issued by reason of such default." Watkins v. Greene, 101 Mich. 493.

A tax deed is void on its face when it shows a sale of land in a manner not authorized by statute. Murphy v. Wilson, 37 N.D. 300, 163 N.W. 820; Youker v. Hobart, 17 N.D. 296, 115 N.W. 839; Cain v. Ehrler, 36 S.D. 127, 153 N.W. 941; State Finance Co. v. Trimble, 16 N.D. 199, 112 N.W. 984; State Finance Co. v. Beck, 15 N.D. 374, 109 N.W. 357.

"The purpose which underlies this legislation has been pushed further in some states, and under the provisions of the revised statutes of New York, enacted in 1828, and adopted to a greater or less extent in a number of states, not only are passive trusts of realty to be construed as direct conveyances to the beneficiary, but express active trusts in real property are valid as trusts for certain enumerated purposes only. But if the performance of any act lawful under a power is authorized, the trust is effective as a power in trust." 28 Enc. Law, p. 867.

"A trust may be defined as an obligation arising out of a confidence reposed in one who has the legal title to property conveyed to him." 28 Enc. Law, p. 858.

Powers are not estates but rather operate upon estates.

"A general power is one which enables the donee to appoint whomever he pleases. "

"A special power is one whereby the donee is restricted to an appointment to, or among, particular objects only." 22 Enc. Law, p. 1092.

Feetham & Fraine, for respondent.

It has been held that a quitclaim deed may be merely a release. Wightman v. Spafford, 8 N.W. 680.

And this may be inferred not only from the recitals of the deed but from the adequacy of the price given and other circumstances showing the purpose of the instrument. Taylor v. Harrison, 26 Am. Rep. 304.

Under the circumstances in this case, what better inference can be drawn than that Freeman was obtaining a mere release and engaged in a laudable endeavor to purchase peace in his possession. Kuh v. Flynn, 189 N.W. 280.

BRONSON, Ch. J. JOHNSON, CHRISTIANSON, BIRDZELL, and NUESSLE, JJ., concur.

OPINION

Statement.

BRONSON Ch. J.

This is an action to determine adverse claims brought against the St. Paul Trust Company, Robt. J. Strong, Mrs. Robt. J. Strong, Maggie Strong, and all other persons unknown claiming an estate or interest. The property concerned is a half section of land in Pembina County, North Dakota. Service was secured against the defendants by publication. The defendants, Robt. J. Strong and his wife, Ella C. Strong, interposed an answer. None of the other defendants appeared. The answering defendants alleged a right, interest, and title in themselves through a devise to defendant Robert J. Strong contained in the will of his father, Charles D. Strong, deceased. This particular devise reads as follows:

"Twelfth. I give, devise, and bequeath unto the St. Paul Trust Company, as trustee, two certain farms and parcels of land situated in Pembina County, Dakota Territory, being the same tracts and farms of land heretofore sold and conveyed to me by my son, Robert J. Strong, and his wife. To have and to hold the same as such trustee, upon the trusts following, viz.:to demise, lease and let the said farms, upon such time and terms as to the said trustee may seem best, to collect the rentals and income therefrom, to pay the taxes and other expenses necessary to the execution of said trust, for and during the natural life of my said son, Robert J. Strong, to pay over the said net rentals and income, either to my said son, or to his wife, or to his children, or to the guardian of such children, as may be best for his family, in the judgment and discretion of the officers of said trustee; and upon and after his death, to sell the said real estate or any part thereof, upon such terms and times as to said trustee shall seem best, and to pay over the net proceeds of such sales either to the widow of my said son, if any, or to his surviving children, or to the lawful guardian of his minor children, as to said trustee shall seem for the best interests of the widow or children of my said son. Provided always, that, if my said son shall choose to reside upon and occupy either of said farms and cultivate the same, he may do so, without rental, and during his lifetime, so long as he shall pay the taxes and other lawful assessments against the same. But my said son shall have no control over the income or rentals of any of said real estate, during his lifetime."

They further alleged that the will was duly admitted to probate in the probate court of Ramsey county, Minnesota; that the nominative trustee, the defendant St. Paul Trust Company, entered upon the execution of its trust but defaulted therein; that Freeman P. Strong, the brother of Robert and the father of the plaintiffs, was substituted as trustee to execute the continuing trusts imposed by the will; that the plaintiffs are fully acquainted with the terms and conditions of this trust and the right and title of the answering defendants as cestuis que trust in the land. They request that the court protect and confirm their interests; that Freeman P. Strong be made a party defendant; that plaintiffs be required to make full proof as to the origin and validity of their alleged title and be required to account to the answering defendants for the rentals and income from said property. In a reply, plaintiffs admit the making of the will and its admission to probate, both in Ramsey county, Minnesota, and in Pembina county, North Dakota. Plaintiffs further allege that defendants Robert J. Strong and Maggie Strong, his wife, on February 11th, 1891, made a quitclaim deed of the land to Freeman P. Strong, who later conveyed to plaintiffs. Further, that prior to August 21, 1896, the lands were forfeited to the state for nonpayment of taxes and on that day the state, by two certain tax deeds, conveyed the land to Freeman P. Strong. Further, that in an action in the district court of Ramsey county, Minnesota, in which the St. Paul Trust Company, as trustee, and Robert J. Strong, Maggie Strong, and Freeman P. Strong were named as parties, the same issue involved herein became there directly involved and a final judgment was rendered on May 19th, 1902, whereby Freeman P. Strong was adjudged to be the owner of this land. That Freeman P. Strong, as trustee under the will, did not accept any trusteeship concerning this land; that such Freeman P. Strong made full accounting of his trust and was discharged from all of his duties as trustee with approval by Robert J. Strong and Maggie Strong. That neither of the answering defendants has been seized of the premises within twenty years before the commencement of this action; that plaintiffs have been in the open, adverse, continuous and exclusive possession of the lands through themselves and their immediate grantor ever since January 27th, 1896, and, for a period of more than ten years, have paid all taxes and assessments legally levied thereupon.

On September 23d, 1921, the trial court made findings of fact conforming substantially to the facts alleged in the reply...