Dahlhammer v. Schneider

• Decision Date: 21 January 1953
• Citation: 252 P.2d 807,197 Or. 478
• Parties: DAHLHAMMER et al. v. SCHNEIDER et al.
• Court: Oregon Supreme Court

Page 807

252 P.2d 807

197 Or. 478

DAHLHAMMER et al. v. SCHNEIDER et al.

Supreme Court of Oregon.

Argued and Submitted Dec. 18, 1952.

Decided Jan. 21, 1953.

B. G. Skulason, of Portland, argued the cause for appellants. With him on the brief was C. G. Schneider, of Portland.

Sidney J. Graham, of Portland, argued the cause for respondents and cross-appellants. With him on the brief was Ben F. Forbes, of Portland.

Before BRAND ^*, C. J., and LUSK, LATOURETTE ^**, WARNER and TOOZE, JJ.

TOOZE, Justice.

This is a suit to cancel certain instruments of conveyance and to impress a trust upon the lands therein described, and for other relief, brought by George F. Dahlhammer and Edith R. Roelfs, as plaintiffs, against Bert E. Boice and Jane Doe Boice, husband and wife, and Comte & Kohlman Co., a corporation, as defendants. Two parcels of land are involved, both located in Multnomah county, Oregon, one designated as tract No. 1 and containing 15.54 acres, and the other designated as tract No. 2 and containing 8.9308 acres. The two tracts are contiguous. A decree was entered in favor of plaintiffs as to tract No. 1, and in favor of defendants as to tract No. 2. Defendants appeal, and plaintiffs cross-appeal.

On November 13, 1952, after this appeal had been perfected, defendant Bert E. Boice died testate in Multnomah county, and C. G. Schneider, as the duly appointed executor of the last will and testament of said decedent, has been substituted as a party. Also, on October 31, 1952, defendant Jane Doe [Lulu M.] Boice, wife of Bert E. Boice, died testate in Multnomah county, and Otto N. Bolen, as the duly appointed executor of the last will and testament of said decedent, has been substituted as a party.

Plaintiff George F. Dahlhammer, hereinafter referred to as George, and plaintiff Edit R. Roelfs, hereinafter referred to as Edith, are brother and sister, the son and daughter respectively of Benjamin F. Dahlhammer and Pearlettie A. Dahlhammer, his wife, both now deceased. Defendant Comte & Kohlman Co., a real estate firm, is an Oregon corporation.

On April 4, 1926, Benjamin F. Dahlhammer was the owner and in possession of tract No. 1, and on said date Benjamin F Dahlhammer and Pearlettie A. Dahlhammer, his wife, were owners as tenants by the entirety and in possession of tract No. 2.

Benjamin F. Dahlhammer died intestate in Multnomah county, Oregon, on April 4, 1926, leaving surviving him as his sole and only heirs at law his widow, Pearlettie A. Dahlhammer, his son George, then 18 years of age, and his daughter Edith, then 7 years of age.

Pearlettie A. Dahlhammer, widow, married defendant Bert R. Boice at Gresham, Oregon, on June 15, 1927.

On February 11, 1929, Pearlettie A. Boice filed her petition in the circuit court for Multnomah county, probate department, for letters of administration upon the estate of Benjamin F. Dahlhammer, deceased. On the same day, said estate was admitted to probate, and the petitioner Pearlettie A. Boice was duly appointed administratrix thereof. Her bond as such administratrix was fixed at $500, and her husband Bert E. Boice became surety thereon. An inventory and appraisement of the property in said estate was made on February 23, 1929, and filed April 29, 1929. The only property of the estate consisted of tract No. 1, appraised at the value of $7,740. Of course, upon the death of Benjamin F. Dahlhammer, title to tract No. 2 immediately vested in Pearlettie A. Dahlhammer, widow, by right of survivorship as a tenant by the entirety.

On January 10, 1930, the plaintiff George, then over 21 years of age, duly executed a quitclaim deed which conveyed to his mother, Pearlettie A. Boice, all his right, title, and interest in and to tract No. 1. Plaintiffs seek to have this conveyance cancelled and set aside.

As the basis of their claim for cancellation of the quitclaim deed, plaintiffs allege in their complaint that the execution thereof by George was induced and procured by reason of certain alleged false representations made to said plaintiff by his mother and the defendant Bert E. Boice. The evidence wholly fails to establish any fraud or misrepresentation on the part of either the mother or the defendant Boice. To the contrary, the record affirmatively shows by George's own testimony that he knew precisely what he was doing, and that the execution of the deed was his own free and voluntary act.

We have given careful consideration to all the testimony in the record respecting the claim of the plaintiff George to an interest in tract No. 1, and conclude that his contention is wholly without merit either in fact or in law. His undivided one-half interest in and to tract No. 1, as an heir at law of Benjamin F. Dahlhammer, deceased, passed to his mother by virtue of the quitclaim deed, subject only to the dower right of the widow and the expenses of administration of the estate. No ground whatever exists for setting that deed aside.

On May 9, 1929, Pearlettie A. Boice filed a petition in the estate of Benjamin F. Dahlhammer, deceased, for authority to sell tract No. 1 at private sale, setting forth in the petition that this land constituted the sole asset of the estate, and that funds were required to pay the expenses of the last illness and funeral of the decedent and the costs and expenses of administration. On May 9, 1929, one C. J. Lundquist was duly appointed guardian ad litem of Edith, then 10 years of age, in conjunction with the proceeding for the sale of the property.

No order was made by the court at the time the petition was filed. On February 6, 1930, a supplemental petition for the sale of the property was filed. In that petition it was pointed out that George had no further interest in the land, and that the petition and Edith were the sole tenants in common thereof.

On March 5, 1930, the court entered an order for the sale of the property at private sale and requiring a surety bond in the sum of $7,500. By supplemental order dated July 24, 1930, the court authorized the filing of a bond on such sale with one or more personal sureties, in the sum of $15,000, in lieu of a surety bond. This latter bond was executed and filed, with defendant Bert E. Boice as surety thereon. The terms of sale were provided in the order of March 5 as follows:

'And it is further ordered that said sale be made in the following terms to-wit: two thirds cash and the balance of one-third by giving a note payable five years from date bearing interest at five per cent per annum, and secured by a first mortgage on said real property (Tract #1).'

On August 7, 1930, Pearlettie A. Boice, as administratrix, filed her written report of the property sale. The report set forth that notices of sale had been posted and published as required by law, proofs of such posting and publishing being attached. The report then stated as follows:

'That on the 6th day of August, 1930 the said real estate was sold at private sale to Bert E. Boice for the sum of $7740.00, the appraised valuation thereof, the said Bert E. Boice being the highest, best and only bidder therefor, and the said sum being the highest and best sum bid therefor.

'That the said sale was made upon the following terms, to-wit: $5740.00 in cash, and $2000.00 by giving a mortgage on the premises so sold, payable on or before five years from date of sale, and bearing interest at the rate of five per cent per annum payable annually.'

On August 30, 1930, the court entered an order confirming said sale.

The administratrix filed her final account in said estate on September 22, 1930. In this report she showed total receipts as follows: Cash received from the sale of real property: $5,740; note secured by first mortgage on said real property: $2,000,--total: $7,740. Total disbursements in the sum of $2,015.46 were itemized, leaving a net balance in the estate of $5,724.54 for distribution.

Also in this final account the administratrix asked to have her dower right in the proceeds of the sale of said real property admeasured and assigned to her, and alleged that her dower right was of a reasonable value equivalent to one-third of the net thereof.

On December 4, 1930, the court entered an order approving the final account, and in said order it found and declared that one-third of the net proceeds in said estate was a reasonable and proper amount to be allowed the administratrix as her dower interest therein. The order then provided:

'That the dower interest of Pearlettie A. Boice, the surviving widow, of the deceased be admeasured and assigned to her in the sum of one-third of the net proceeds of the sale of the real property of the estate, to-wit, one-third of $5724.54, or the sum of $1908.18.

'3. That the remaining portion thereof, $3816.36, be divided equally between the said Pearlettie A. Boice and Edith R. Dahlhammer, share and share alike.'

A final order closing the estate was entered on September 23, 1932. Prior to the entry of this final order, the administratrix filed in said estate two receipts as follows: (1) Receipt dated May 6, 1932, signed by Pearlettie A. Boice and acknowledging receipt from Pearlettie A. Boice, as administratrix, of the sum of $3,816.36, 'as full settlement of my distributive share in the said Estate of B. F. Dahlhammer, Deceased'; and (2) receipt dated May 6, 1932, signed by Pearlettie A. Boice, as guardian of Edith R. Dahlhammer, a minor, and acknowledging receipt from Pearlettie A. Boice, as administratrix, of the sum of $1,908.18, 'In full settlement of the distributive share of Edith R. Dahlhammer, in the estate of B. F. Dahlhammer, deceased.'

On July 2, 1932, by order of the circuit court for Multnomah county, probate department, Pearlettie A. Boice was appointed guardian of the person and estate of Edith R. Dahlhammer, then 13 years of age.

On May 6, 1932, Bert E. Boice and Pearlettie A. Boice, his wife, executed a promissory note in the sum of $1,908.18, payable July 15, 1937, in favor of ...