Estate of Dittus, Matter of, 920199

• Decision Date: 11 March 1993
• Docket Number: No. 920199,920199
• Citation: 497 N.W.2d 415
• Parties: In the Matter of the ESTATE OF Christ DITTUS, Deceased. Charles A. DITTUS and Elmer R. Dittus, Plaintiffs, Appellants and Cross-Appellees, v. Agnes MOORE and Hildegarde Guise, as Co-Personal Representatives of the Estate of Christ Dittus, and individually, Ellen Peraino, Myrna Jackson, Beverly Harrison and Joyce Gibbs, Defendants, Appellees and Cross-Appellants. Civ.
• Court: North Dakota Supreme Court

Page 415

497 N.W.2d 415

In the Matter of the ESTATE OF Christ DITTUS, Deceased.

Charles A. DITTUS and Elmer R. Dittus, Plaintiffs, Appellants and Cross-Appellees, v. Agnes MOORE and Hildegarde Guise, as Co-Personal

Representatives of the Estate of Christ Dittus, and

individually, Ellen Peraino, Myrna Jackson, Beverly Harrison

and Joyce Gibbs, Defendants, Appellees and

Cross-Appellants.

Civ. No. 920199.

Supreme Court of North Dakota.

March 11, 1993.

Mike Miller of Solberg, Stewart, Boulger, Miller & Johnson, Fargo, for plaintiffs, appellants and cross-appellees.

Richard E. Herr, Wishek, for defendants, appellees and cross-appellants.

LEVINE, Justice.

Charles A. Dittus and Elmer R. Dittus appeal from a judgment quieting title to two parcels of land in Logan County in the estate of Christ Dittus. Agnes Moore and Hildegarde Guise, as personal representatives of the estate, and Ellen Peraino, Myrna Jackson, Beverly Harris and Joyce Gibbs, individually, cross-appeal from the trial court's denial of their request for costs and disbursements. We affirm.

Christ Dittus died intestate in January 1975. He was survived by two sons and six daughters, each of whom is a party to this action. On November 22, 1972, Christ executed two deeds, conveying, respectively, one parcel of land in Logan County to his son Charles and a second parcel, also in Logan County, to his son Elmer. Over the course of the next two days, Christ placed the deeds in a safe-deposit box, traveled to Charles' home in Omaha, Nebraska, told Charles about the deeds, gave Charles a key to the safe-deposit box and purportedly advised Charles that he could retrieve the deeds whenever he pleased. Christ, however, also retained a key to the safe-deposit box. Afterward, Charles, not Christ, informed Elmer of the existence of the deeds.

During the years preceding his death, Christ paid taxes on the Logan County property and kept the income it generated. The deeds remained in the safe-deposit box throughout Christ's lifetime. Several days after Christ's death, Charles, accompanied by Beverly, Joyce and Ellen, opened Christ's safe-deposit box and found, in addition to the deeds to himself and to Elmer, a third deed, conveying Christ's Fargo residence to Beverly, Joyce and Myrna. ¹ None of the deeds was recorded. ²

Charles and Beverly were appointed to co-administer the estate. During their tenure, nearly all of the affairs of the estate were settled in a reasonably timely manner, but an ongoing dispute over ownership of the Logan County property caused a decade-long delay. By 1989, the estate still had not been closed and Agnes and Hildegarde successfully petitioned to replace Charles and Beverly as administrators of the estate. The new administrators, in their continuing effort to finally settle and distribute the intestate estate, moved for an order compelling Charles and Elmer to set forth any claims adverse to the estate. In response, Charles and Elmer commenced an action to determine title to the Logan County property pursuant to NDCC Sec. 30.1-12-05 (UPC 3-105). ³

After a trial on the matter, the county court, in its amended findings of fact, conclusions of law and order for judgment, determined that title to the property belonged to the heirs of the estate. That determination was based on the county court's conclusion of law that, "considering the totality of the circumstances, ... the decedent intended the deeds to operate as testamentary transfers." ⁴ Charles and Elmer appealed and the dispositive issue on appeal is whether Christ intended to transfer title to the property at the time the deeds were executed or at his death.

The interest transferred to a grantee by a deed does not vest until there is a delivery of the deed by the grantor, NDCC Sec. 47-09-06, and acceptance of the deed by the grantee. CUNA Mortgage v. Aafedt, 459 N.W.2d 801 (N.D.1990). Therefore, a deed is of no effect unless it is delivered. E.g., Jorgenson v. Crow, 466 N.W.2d 120 (N.D.1991). But, delivery is of no avail unless the grantor effectuates it with the intent that the deed presently pass title to the grantee. Id. Accordingly, "[i]f the intent is not to transfer the interest until the grantor's death, there is no present delivery and the conveyance is merely an ineffective attempt at a testamentary transfer." 6A Powell on Real Property, p 898 at 81A-77 (Rev.Ed.1993).

A trial court's determination that a grantor did or did not intend a present transfer of title to the land described in a deed is a finding of fact, see n. 2 supra, and will be upheld on appeal unless it is clearly erroneous. NDRCivP 52(a). "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made." Blotske v. Leidholm, 487 N.W.2d 607, 610 (N.D.1992).

We have previously addressed the issue of intent to presently transfer title in cases factually similar to this one. In Frederick v. Frederick, 178 N.W.2d 834 (N.D.1970), the grantor, joined by his wife, executed several deeds and placed them into a safe-deposit box. Sometime later, the grantees asked the grantor whether they could purchase a portion of his land and were told no purchase was necessary because the land had been deeded to them. The deeds, however, remained in the grantor's safe-deposit box until his death. The grantor also retained possession of the keys to the bank box until his death. Nearly a year after the grantor's death, his wife, in the presence of the grantees, removed the deeds and recorded them. Afterward, she returned the deeds to the safe-deposit box. The trial court determined that, under the circumstances, the deeds had been constructively delivered to the grantees. See NDCC Sec. 47-09-09. ⁵

We reversed, holding that there was "absolutely no evidence that the grantor intended to deliver the deeds to the grantees during his lifetime," that is, no evidence of an intent to relinquish

"dominion or control over [the] deeds or to vest title to the property in the grantees. In fact, the record is clear that his intention was exactly the opposite. He retained possession of the deeds in his bank box, retained the keys to the box in his own possession, and paid the taxes on the land for the intervening years until his death." Frederick, 178 N.W.2d at 838.

In First Nat'l Bank in Minot v. Bloom, 264 N.W.2d 208 (N.D.1978), a case which was strikingly similar to Frederick, supra, we upheld a finding of no constructive delivery, stating:

"Just as in Frederick, [the grantor], retained possession of the deed in his bank box, retained the keys to the box in his possession, and paid taxes on the land until he died. The statements of [the grantor] ... are also consistent with ... retaining [ ] fee ownership [of] the land." Bloom, 264 N.W.2d at 211.

Charles and Elmer acknowledge that this case is similar to Bloom and Frederick in that Christ retained possession of the deeds in his safe-deposit box and paid the taxes on the real estate until his death. They assert, however, that Bloom and Frederick are distinguishable because the grantor, Christ, gave Charles a key to the safe-deposit box and told him that the Logan County real estate belonged to him and Elmer and that the deeds to the respective parcels could be retrieved by them any time thereafter. Charles and Elmer argue that these facts show that, although Christ did not relinquish control over his safe-deposit box, he did intend to relinquish control over the deeds within that box.

To buttress their position, Charles and Elmer direct our attention to the trial court's summation, in its findings of fact, of evidence they allege shows Christ intended to immediately transfer title to the property to them:

"8. The Decedent's sons, Elmer and Charles, furnished financial support to their parents and other family members during times of financial difficulty in the 40's and 50's, which included paying certain real estate taxes and a tax lien on the subject premises....

"9. Christ Dittus, in various conversations during his lifetime with Charles and Elmer, referred to the farmland in question as theirs...."

We agree that the record contains some evidence supporting Charles and Elmer's position. However, there is ample evidence supporting the trial court's decision that Christ did not intend to transfer title to the property to Charles and Elmer until he died and that the deeds, therefore, failed for lack of delivery. Christ retained a key to the safe-deposit box, retained the income generated by renting the property, and paid the taxes on the property. This evidence of Christ's exercise of dominion and control over the property strongly supports the inference that Christ did not, upon delivering the safe-deposit box key to Charles, presently intend to relinquish title to the Logan County farmland. Moreover, the delivery of but one of two keys to a safe-deposit box is inconclusive, without other evidence, of intent to presently transfer title.

Here, the best additional evidence of present intent is the statement Christ allegedly made to Charles when handing Charles a key to the bank box. That "evidence," however, is of no significance because the trial court did not find that such a conversation occurred; instead, the trial court merely recited that "Charles testified that his father told him when he gave him the key that he could remove the deeds at anytime." (Emphasis supplied.) The mere recitation of testimony is not equivalent to a finding of fact. Evans v. Backes, 437 N.W.2d 848 (N.D.1989).

The testimony of Roger Gackle, Christ's attorney, also supports the trial court's determination. Gackle described the conversation he had with Christ on the day Christ signed the deeds:

"[Christ] indicated to me that this was essentially a testamentary...