Dalrymple v. Sec. Loan & Trust Co. of Casselton

• Decision Date: 22 May 1900
• Citation: 83 N.W. 245,9 N.D. 306
• Court: North Dakota Supreme Court
• Parties: DALRYMPLE et al. v. SECURITY LOAN & TRUST CO. OF CASSELTON et al.

9 N.D. 306

83 N.W. 245

DALRYMPLE et al.

v.SECURITY LOAN & TRUST CO. OF CASSELTON et al.

Supreme Court of North Dakota.

May 22, 1900.

Syllabus by the Court.

1. The rule prevailing in courts of chancery which required the plaintiff, in suits brought to quiet title, to show both possession and legal title in himself, is abrogated in this state by statute. Such action may be maintained by a plaintiff who has “an estate or interest in real property,” whether legal or equitable. Rev. Codes, § 5904.

2. Where, under the direction of a purchaser paying the consideration, real estate is conveyed by the vendor to a stranger, who is named as grantee in a deed absolute on its face, which grantee nevertheless receives the deed in trust for the sole use and benefit of parties not named in the deed, such parties are the beneficiaries under the deed, and as such are seised of the entire title. Such parties are in a position to maintain an action to quiet the title to such real estate. Rev. Codes, §§ 3381, 3383, 3386.

3. Under the facts set out in the complaint and considered in the opinion, held, that it does not appear from the complaint that certain judgments referred to in the complaint are liens upon the title to the real estate in controversy.

4. Held, further, where the complaint in an action against several defendants states a cause of action as against either of the defendants, that a joint demurrer to the complaint for insufficiency is properly overruled.

5. Held, further, that a joint demurrer to a complaint upon the ground of a defect of parties defendant will be overruled if the action can be maintained, without prejudice as to the rights of any one defendant, without bringing in new parties.

6. Held, further, that the demurrer of the defendants made jointly to the complaint for a defect of parties defendant was properly overruled for the reason that upon the facts pleaded the interests of the defendants did not require the bringing in of additional parties to the action.

7. Held, further, that where an action is brought in behalf of minors by their guardian it is incumbent upon the guardian to set out facts in an issuable form, in his complaint, which show his representative capacity and the character in which he sues; and a complaint in such a case which does not do so is demurrable. But such demurrer must be special, and upon the ground of want of capacity to sue, and, unless so made, such objection is waived.

8. Where it appears from the complaint that the father of the plaintiffs, upon a consideration paid by him, caused a deed conveying real estate to be made to D. in trust for the sole use and benefit of his children, and that the father was in debt at the time, and that certain creditors had obtained and docketed judgments against him, held, that such facts alone, in the absence of allegations of the father's insolvency, or of a fraudulent intent upon the part of the father, do not show that such transfer of real estate was necessarily fraudulent. Hence the same cannot be held to be constructively fraudulent. A fraudulent intent in the transfer of real estate must be made to appear in order to justify a court in setting the conveyance aside as fraudulent as to creditors. Rev. Codes 1895, § 5055.

Appeal from district court, Cass county; W. S. Lauder, Judge, presiding by request.

Action by Franklin S. Dalrymple and others against the Security Loan & Trust Company of Casselton and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

Pollock & Scott, for appellants. Newman, Spalding & Stambaugh, for respondents.

WALLIN, J.

The complaint in this action, after stating that said defendants the Security Loan & Trust Company and the Cass County Bank are corporations, alleges the following facts in substance: That in the month of March, 1883, one Isabella C. Dalrymple and said Oliver C. Dalrymple were husband and wife. That at said date said Isabella C. Dalrymple became and was the owner of lots numbered, respectively, 3 and 4 of block 20 in the town (now city) of Casselton, in Cass county, N. D. That said premises at that time, and continuously thereafter and until the death of said Isabella C. Dalrymple, were occupied by the deceased and her family as their homestead. That said Isabella C. Dalrymple died in the month of May, 1891, leaving surviving her said husband and certain minor heirs, whose names appear in the title of this action; also one other minor heir, since deceased, named Howard C. Dalrymple, and all of whom were the children of said Isabella C. and Oliver C. Dalrymple. That in October, 1885, said husband and wife executed and delivered a certain mortgage upon said premises to secure the sum of $2,689.46, which mortgage was recorded. This mortgage was made to the Security Loan & Trust Company. That on October 2, 1889, said Isabella C. Dalrymple was the owner of a certain half section of land described in the complaint, and situate in said county of Cass, and on said day said husband and wife joined in a conveyance by quitclaim deed of said half section of land and said homestead premises to said defendant the Cass County Bank, which deed was made to secure the payment of a then existing indebtedness of said Oliver C. Dalrymple to said bank in the sum of $13,444, and further to secure any advances which should thereafter be made by said Cass County Bank to said Oliver C. Dalrymple; and to further secure such indebtedness and advances said Oliver C. Dalrymple and his said wife executed and delivered to said bank their certain other quitclaim deed covering a large amount of real estate situated in said county of Cass, and more particularly described in the complaint. It is further stated in the complaint that on April 24, 1893, an accounting was had between said bank and said Oliver C. Dalrymple, whereby it was ascertained that said Dalrymple was indebted to said bank in the sum of $21,248.64, for which said bank held said quitclaim deeds as security. Paragraphs 10, 12, 13, and 14 of the complaint are as follows:

“(10) That thereafter, and on or about the 24th day of April, 1893, for the purpose of paying the said indebtedness of the said Oliver C. Dalrymple to the said defendant Cass County Bank, to wit, the sum of twenty-one thousand two hundred and forty-eight dollars and sixty-four cents ($21,248.64), and for the further purpose of assuring and securing to the said Franklin S. Dalrymple, Howard C. Dalrymple, John C. Dalrymple, and Gertrude C. Dalrymple, minor heirs of the said Isabella C. Dalrymple, the full value of all their right, title, interest, and estate of, in, and to all said real property, the said Oliver C. Dalrymple made and entered into a contract with the said defendant Cass County Bank in his own name, but in behalf and for the benefit of himself and said minor heirs of said Isabella C. Dalrymple, a copy of which is hereto annexed, marked ‘Exhibit A,’ and made a part of this complaint. That in and by the terms of said contract it was agreed that for the purpose of carrying out said contract the said Oliver C. Dalrymple should at once secure from the county court of said Cass county letters of guardianship for said minor heirs of said Isabella C. Dalrymple, and that thereupon said Cass County Bank should bring an action or actions to foreclose its lien under said quitclaim deeds upon all said real property, which said real property was, under and by the terms of said agreement, to be sold upon judgments obtained in said actions for the foreclosure of said liens as aforesaid to satisfy the said indebtedness of the said Oliver C. Dalrymple to the said Cass County Bank. That as a part of the consideration for said agreement said defendant Cass County Bank agreed to pay the said Oliver C. Dalrymple the sum of one thousand dollars; and that upon the sale of said property as aforesaid under said judgment the entire indebtedness of the said Oliver C. Dalrymple to the said Cass County Bank should be satisfied and canceled; and that thereupon the said bank, whenever its title under said foreclosure proceeding to said lots three and four in said block twenty should be perfected and made complete, would convey said lots by special warranty deed free and clear from all incumbrances to the said Oliver C. Dalrymple, or such other person as he should designate to take the title thereto (in trust for said minor heirs of said Isabella C. Dalrymple). That thereafter, pursuant to said agreement, the said Oliver C. Dalrymple made application to the said county court of the said Cass county for appointment as guardian of the said minor heirs of the said Isabella C. Dalrymple, and such proceedings were thereafter had in said court that on the 21st day of June, 1893, the said Oliver C. Dalrymple was appointed guardian of the persons and estates of the said minor heirs of the said Isabella C. Dalrymple, to wit, Franklin S. Dalrymple, Howard C. Dalrymple, John C. Dalrymple, and Gertrude C. Dalrymple. That thereafter, pursuant to said agreement, said Cass County Bank commenced an action in said court for the foreclosure of its said liens upon said real estate, wherein the said Cass County Bank was plaintiff and the said Oliver C. Dalrymple and the minor heirs of the said Isabella C. Dalrymple were defendants, and such proceedings were therein had that thereafter, and on or about the 15th day of December, 1898, a judgment and decree were given and rendered in said action, and duly entered and docketed therein in the office of the clerk of this court in and for the said county of Cass, which, among other things, directed the sale of all said real property hereinbefore described to satisfy said indebtedness of the said Oliver C. Dalrymple to the said Cass County Bank for the payment of which the said land was held by the said bank as security, and thereafter, and after the entering and docketing of the said judgment as aforesaid, an execution was issued thereon to the sheriff of said...