Clapp v. Tower
| Decision Date | 09 March 1903 |
| Docket Number | 6731 |
| Citation | 93 N.W. 862,11 N.D. 556 |
| Court | North Dakota Supreme Court |
Appeal from District court, Cass county; Charles A. Pollock, J.
Action by Isaac P. Clapp against Charlemange Tower, Jr., and others. Demurrer to answer sustained, and defendants appeal. Affirmed.
Demurrer sustained, and order affirmed.
Robert M. Pollock, for appellants.
William J. Clapp, for respondent.
YOUNG J. MORGAN, J., concurs. COCHRANE, J., did not hear the argument or participate in the decision.
This is an action to quiet title to a section of land situate in Cass county, which was conveyed to the plaintiff by the executors of the last will and testament of Charlemange Tower deceased. The complaint alleges that the plaintiff is the owner of said real estate, and that the defendants claim an interest therein adverse to the plaintiff, and prays that they be required to set forth their claims, to the end that their validity may be determined, and that title be quieted in the plaintiff. Defendants, in their answer, allege that they are the next of kin and all of the heirs at law of said Charlemange Tower, deceased, and all the surviving legatees under his will; that said Charlemange Tower died in, and a resident of, the city of Philadelphia, Pa., and that his will was probated there; that the land in question was sold by said deceased to one Hadley upon a contract which provided for the execution and delivery of a deed to him upon the making of certain deferred payments specified in said contract; that subsequent to the death of Charlemange Tower the executors of his will foreclosed said contract by reason of the default of said Hadley in making payments according to its terms, and that said land became a part of the estate of said deceased; that thereafter the executors, acting upon the theory that said land was subject to the principle and rule of equitable conversion, and was for the purposes of administration to be treated as personal property, sold and conveyed the same to the plaintiff, who has ever since been in possession of the same, claiming the ownership and possession thereof by virtue of said deed from said executors; that the defendants are the owners of said real estate by virtue of their heirship, and ask that the title be quieted in them. The plaintiff demurred to the answer upon the ground that it does not state facts sufficient to constitute a defense or counterclaim. The trial court sustained the demurrer, and the defendants appeal from the order sustaining the same.
The will of Charlemange Tower was before this court in the case of Penfield v. Tower, 1 N.D. 216, 46 N.W 413. This court held that, so far as its provisions related to real estate situated in this state, it was inoperative and void, and that the real estate of said deceased in this state must be distributed according to the law of succession of this state, and that the personal property should be distributed according to the terms of the will. The only question involved upon the issue raised by the demurrer is whether the land in question should, under the facts pleaded in the answer, be treated as real estate or as personal property. If, for the purposes of administration, it retains the character of real estate, the will not being operative, it descended directly to the heirs, the defendants in this action. This is conceded. If, on the other hand, it is to be considered as personal property, it then went to the executors for the purposes of distribution, and they had full right and authority to sell and convey the same in the manner and form pursued, and to account for the proceeds to the orphans' court of the state of Pennsylvania, from which they received their appointment. It is very properly conceded by both parties that under the rule...
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