Dalrymple v. Security Loan & Trust Co. of Casselton
| Decision Date | 10 January 1902 |
| Citation | 88 N.W. 1033,11 N.D. 65 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Lauder, J.
Action by Franklin S. Dalrymple and others, by Oliver C. Dalrymple their guardian, against the Security Loan & Trust Company of Casselton and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
Affirmed.
Pollock & Scott and Morrill & Engerud, for appellants.
Newman Spalding & Stambaugh, for respondents.
Action to quiet title and to determine adverse claims to real estate, and for other relief. The property in controversy consists of a house and two lots situated in the city of Casselton, and formerly occupied by O. C. Dalrymple and Isabella C. Dalrymple, his wife, as the family homestead. The fee title to the real estate in question was in Isabella C Dalrymple from March 7, 1883, until May 3, 1891, during all of which time it constituted the family residence of herself and husband and their children. On the last-named date Isabella C. Dalrymple died intestate, leaving as her only heirs her husband, O. C. Dalrymple, and four minor children, one of whom has since died. The plaintiff's herein are the three surviving children. Seven of the defendants are judgment creditors of O. C. Dalrymple, and claim that their judgments constitute liens upon the property involved in this litigation. The Security Loan & Trust Company has an unsatisfied mortgage upon the premises, which, however, concededly, has been paid. Sales were made under executions issued on two of the aforementioned judgments, and sheriff's certificates were issued to the judgment creditors, who were purchasers at the sales. H. G. Scott, the remaining defendant, is in possession of the premises under a lease made by O. C. Dalrymple as guardian of the minor children. The trial court found that the entire legal and equitable title to the premises in controversy was vested in the plaintiffs, and entered judgment quieting title in them as against all claims, estates, liens or interests of the defendants, and decreeing a cancellation of the mortgage standing unsatisfied in the name of the Security Loan & Trust Company, and the two sheriff's certificates issued on the sales made under the judgments, and adjudging that the defendant H. G. Scott holds the premises as a tenant of these plaintiffs. The defendants have appealed from the judgment, and in a settled statement of the case, containing all of the evidence offered at the trial have demanded a review and retrial of the entire case in this court.
The real question in controversy is whether the judgments against Oliver C. Dalrymple constitute liens upon the property in question. It is agreed that under § 3742, Rev. Codes 1899, relating to the order of succession to the estates of interstates, the title to the property in question, upon the death of Isabella C. Dalrymple, on May 3, 1891, descended one-third to her surviving husband, Oliver C. Dalrymple, and the remainder to her four minor children, three of whom are plaintiffs in this action. The defendants concede that the plaintiffs are the owners on an undivided three-sixths of the property in question, unincumbered by the liens on the judgments, but contend that such judgments are liens upon the one-third which O. C. Dalrymple inherited, and also the one-sixth interest which descended to the fourth child, now deceased; the father being the sole heir of such deceased child. Section 3742, supra. In other words, defendants contend that the plaintiffs and their father, Oliver C. Dalrymple were tenants in common, and that their judgments become liens upon the interest of Oliver C. Dalrymple. The plaintiffs, on the other hand, deny that the judgments are or ever were liens upon the property in question, and contend that, by virtue of certain conveyances to which we will hereafter refer, they are vested with the entire title, both legal and equitable, to said premises.
The facts essential to a determination of the questions presented by this appeal may be stated as follows: Isabella C. Dalrymple was the owner not only of the property here in controversy, but also of other real estate, consisting of farm lands. Her husband was indebted to the Cass County Bank in a considerable sum. On October 3, 1889, she joined her husband in a conveyance of the property here involved to said bank, and at the same time conveyed to said bank farm lands to the amount 1,440 acres. The several conveyances were in form quitclaim deeds, but were given for the purpose of security only, and were, in legal effect, mere mortgages. After the death of Isabella C. Dalrymple, as before stated, her surviving husband continued to occupy the premises here in question, with the minor children, as their homestead, until about November, 1894. On April 24, 1893, which was subsequent to his wife's death, and prior to the abandonment of the homestead, Oliver C. Dalrymple had a settlement and accounting with the Cass County Bank, at which the amount of his indebtedness secured by the conveyances before mentioned was fixed at the sum of $ 21,248.64. It is agreed that the property covered by the bank's mortgages did not exceed the value of $ 16.500, and it is further conceded that O. C. Dalrymple was then, and has since been, insolvent. On said last-named date a written contract was entered into between O. C. Dalrymple and said bank which provided for a transfer to said bank of both the possession and title to all of the property covered by the bank's mortgages, including not only the interest of Oliver C. Dalrymple, but also that of the four minor heirs. This contract, after describing the several conveyances executed by the deceased, Isabella C. Dalrymple, to the bank, and the amount of the then existing indebtedness, among other things, recites that: "Whereas, Isabella C. Dalrymple * * * has died, leaving as her heirs and next of kin Oliver C. Dalrymple * * * and four children [naming them], and a foreclosure of the deeds becomes necessary in order to give said Cass County Bank an absolute title in fee to said premises, and it being by all the parties deemed advisable for said bank to take such title in fee: Now, therefore, in consideration of these premises, and the sum of one dollar in hand paid to said Oliver C. Dlrymple, it is now mutually agreed as follows: Said Oliver C. Dalrymple shall at once secure from the county court of Cass county letters of guardianship over the persons and property of the minor heirs of Isabella C. Dalrymple, deceased, to the end that the bank can make proper and legal service of the foreclosure proceedings upon him as such guardian. * * *" The contract, in substance, further provides that (2) Said Cass County Bank will at once bring an action or actions to foreclose the deeds above described, claiming to be due on this date the amount heretofore agreed to be due, to-wit, $ 21,248.64. Said Oliver C. Dalrymple agrees to answer at once, admitting the claim of the said bank, and consenting that judgment be entered forthwith against him. (3) Dalrymple, on his part, further agrees to give a bill of sale of all personal property on which the bank has a chattel mortgage, and to permit said bank to take immediate possession thereof, and sell and dispose of the same. Further, that said bank should have full and complete possession of all the real estate covered by the mortgages, with power to sell the same as it sees fit, without any liability to account for rents or profits arising from such sale, excepting therefrom lots 3 and 4 in block 20 in the city of Casselton, which is the property here in controversy. (4) The bank, on its part, agreed to permit said Dalrymple to take possession and control of the homestead, and to have and use the same as his own, free from all rent charges. Said bank further agreed that, at the time "of getting its title perfected by foreclosure proceedings to the other land above described, to convey by special warranty deed, free and clear of all incumbrances, said lots 3 and 4, block 20, to said Oliver C. Dalrymple, or such other person as he shall designate." (5) The bank further agreed that it would keep the buildings on the homestead insured in the sum of not less than $ 1,500, and, in case of loss by fire prior to the conveyance of said lots to the said Oliver C. Dalrymple, moneys received therefor should be paid to said Oliver C. Dalrymple, in addition to conveying him said lots. (6) The bank further agreed that after said Dalrymple had been appointed guardian of said children, and had served his answer as agreed, admitting the amount of the bank's indebtedness, to pay to him the sum of $ 4,000 in full payment of all matters between them, and to cancel and surrender all obligations, including notes, mortgages, and judgments, held by it against him, and to give a receipt in full for all claims and demands of every kind and nature. The contract contains this further recital: "To this end said Oliver C. Dalrymple agrees to treat this transaction made this day as a full and final settlement between them, and guarantees that, as far as he and his heirs are concerned, they will neither ask nor demand of said bank any of said land or personal property above described, except the homestead lots described as lots 3 and 4, block 20, First addition to Casselton, hereinbefore provided to be conveyed by said bank to Oliver C. Dalrymple, and the following articles of personal property." Here follows the description of certain personal property which was released to said Dalrymple, free and clear of all liens or mortgages held by the bank.
It is conceded that the stipulations contained in the foregoing contract were fully performed, both on the part...
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