First Nat. Bank of Minot v. Bloom, 9407

• Decision Date: 15 March 1978
• Docket Number: No. 9407,9407
• Citation: 264 N.W.2d 208
• Parties: FIRST NATIONAL BANK IN MINOT, as Administrator of the Estate of Gust Bloom, Deceased, Plaintiff and Appellee, v. Edgar BLOOM, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 208

264 N.W.2d 208

FIRST NATIONAL BANK IN MINOT, as Administrator of the Estate

of Gust Bloom, Deceased, Plaintiff and Appellee, v. Edgar BLOOM, Defendant and Appellant.

Civ. No. 9407.

Supreme Court of North Dakota.

March 15, 1978.

Ella Van Berkom, Minot, for defendant and appellant.

Pringle & Herigstad, Minot, for plaintiff and appellee; argued by Herbert L. Meschke, Minot.

ERICKSTAD, Chief Justice.

This is an appeal by Edgar Bloom (hereinafter Edgar), defendant and appellant, from the judgment of the Mountrail County District Court quieting title to 360 acres of land in Mountrail County in the First National Bank in Minot (hereinafter Bank), as administrator of the estate of Gust Bloom. The court held that Edgar's claim to the land was null and void.

The dispute in this case involves the effect of a warranty deed dated October 20, 1958, signed and acknowledged by the decedent, Gust Bloom, naming Edgar (one of his nephews) as the grantee of the 360 acres. This deed was found on or about January 27, 1975, when Gust's safety deposit box in a bank was entered by order of the county court. The deed was found in a sealed envelope on which was typed: "To be delivered to Edgar Bloom upon my death." Edgar recorded this deed on January 28, 1975.

Gust died on January 15, 1975, without a will. The Bank was appointed administrator of the estate on March 3, 1975, and commenced this quiet title action against Edgar in the district court on November 29, 1976. The Bank contends that there was no actual or constructive delivery of the deed to Edgar and that therefore the deed has no effect.

Edgar on the other hand contends that in considering all the circumstances of this case there was constructive delivery of the deed with Gust reserving a life estate in the land. He contends that the intent of Gust that Edgar own the land is shown by the evidence in this case.

Gust purchased the land in question in the spring of 1958. That fall, he moved in to live with Edgar and his wife in their home. He continued to live with them until September 1, 1973, when he moved into a nursing home. Gust paid Edgar for his room and board only during the last nine months of his stay with them.

From 1959 until 1974 Edgar farmed the land with the crop being split on a 50-50 basis with Gust. Gust paid the taxes on the land and helped farm the land for the first few years. Under their farming arrangement Gust was to furnish the seed and pay half of the combining expenses. Instead, in return for Gust's labor during the first few years, Edgar furnished the seed and paid for all the combining.

To show Gust intended to give the land to him, Edgar relies on certain statements made by Gust. Edgar testified to several conversations he had with Gust concerning the ownership of the land. ¹ The first conversation he testified to took place in 1963 just before Gust flew to Sweden. A pertinent part follows: "And so he said, 'Sell the grain, and you keep the money' he said, 'because if something should happen to me, why the land is yours.' "

The second conversation relating to the ownership of the land occurred in 1972 according to Edgar. Edgar had just had three surgeries and had doubts about whether he could continue farming. Edgar testified that the following conversation occurred at this time.

"We couldn't make it to rent the land out because I just had two quarters. If I had three, four quarters, why I would rent out and I think we could get by.

"And he, my uncle, said, 'Don't worry,' he said, 'about that, because when I go the land will be yours.' "

Edgar also testified that a couple times after that he had told Gust that he did not know if he could continue to farm. In response to that, Edgar testified that Gust said:

"(A)fter I am gone, the land will be yours, . . . So try and continue."

Finally, Edgar testified that he had been at the bank box with Gust in July of 1974 and in August of 1974. Edgar testified that at that time in August he had the following conversation with Gust:

"I asked him if he should happen to go while we had if he had anything fixed out. And he said, 'Yes.' He said, 'Everything is fixed out,' he said, 'so there wouldn't be very little estate tax or anything and no trouble,' he said."

From this evidence, Edgar, in his brief, contends that "it was the intention of Gust Bloom that Edgar Bloom own the land." We assume Edgar meant that Gust intended that Edgar own the land during Gust's lifetime.

In Frederick v. Frederick, 178 N.W.2d 834 (N.D.1970), we said:

"Under North Dakota law, conveyance by deed takes effect upon delivery of the deed by the grantor. Sec. 47-09-06, N.D.C.C. Such delivery may not be conditional, but must be absolute. Sec. 47-09-07, N.D.C.C. Whether there has or has not been delivery of a deed may be determined from the intention of the grantor. McGuigan v. Heuer, 66 N.D. 710, 268 N.W. 679. And such delivery may be inferred from some act or declaration of the grantor. Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767. Unless there has been a delivery of the deed, the deed is of no effect. Stark County v. Koch, 107 N.W.2d 701 (N.D.1961)." (Emphasis added.) 178 N.W.2d at 837.

Thus the critical issue in this case is whether or not there was actual or constructive delivery of the deed. The district court found that there was no actual or constructive delivery of the deed. The pertinent findings read:

"VII

"There was no actual delivery of the deed by the decedent during his lifetime, because the decedent retained possession of the deed.

"VIII

"There is no evidence to show constructive delivery of the deed by the decedent during his lifetime."

Whether or not there was actual or constructive delivery of a deed is a question of fact. See Stark County v. Koch, 107 N.W.2d 701, 705 (N.D.1961), and Shuck v. Shuck, 77 N.D. 628, 635, 44 N.W.2d 767, 772 (1950). Thus the findings of fact of the district court that there was no actual or constructive delivery of the deed will be upheld by this court unless we find that these findings are clearly erroneous. Rule 52(a), N.D.R.Civ.P.

This case is very similar to Frederick v. Frederick, supra. In Frederick, the defendants asserted that there had been constructive delivery of the deeds in question. The trial court found that there was constructive delivery and on appeal we overturned that finding. A significant part of that opinion reads:

"Thus it was incumbent upon the defendants to show constructive delivery. The record is devoid of any evidence showing that the grantor had any intention to part with dominion or control over these 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. The grantees did not even know about the deeds at the time they were executed. The defendants claim that he told them, on separate occasions thereafter, that deeds had been prepared and had been placed in his safety-deposit box, and that the keys to the box were in his possession at his home so that if anything should happen to him, the grantor, the grantees would be given the property. But there was no delivery of the deeds. There was no intention on the part of the grantor to constructively deliver them, since title to the property was not to pass immediately. Had the grantees brought an action to recover the deeds at that time, they clearly would have been unsuccessful because the grantor had retained dominion and control over them. In order that the court may find constructive delivery of the deeds,...