Frederick v. Frederick, s. 8599

• Citation: 178 N.W.2d 834
• Decision Date: 22 April 1970
• Docket Number: Nos. 8599,8600,s. 8599
• Parties: Tracy FREDERICK, also known as Tracy Frederich and Tracy Fredrich, and Victor Frederick, Plaintiffs, Appellants, and Cross-Respondents, v. Joseph FREDERICK, also known as Joseph or Joe Friedrich, Defendant, Respondent, and Cross-Appellant. Tracy FREDERICK, also known as Tracy Friederich and Tracy Fredrich, and Victor Frederick, Plaintiffs, Appellants, and Cross-Respondents, v. John FREDERICK, also known as John Fredrich, Defendant, Respondent, and Cross-Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 834

178 N.W.2d 834

Tracy FREDERICK, also known as Tracy Frederich and Tracy

Fredrich, and Victor Frederick, Plaintiffs, Appellants, and Cross-Respondents, v. Joseph FREDERICK, also known as Joseph or Joe Friedrich,

Defendant, Respondent, and Cross-Appellant.

Tracy FREDERICK, also known as Tracy Friederich and Tracy

Fredrich, and Victor Frederick, Plaintiffs, Appellants, and Cross-Respondents, v. John FREDERICK, also known as John Fredrich, Defendant,

Respondent, and Cross-Appellant.

Civ. Nos. 8599, 8600.

Supreme Court of North Dakota.

April 22, 1970.

Rehearing Denied June 12, 1970.

Syllabus by the Court

1. Under North Dakota law, a conveyance by deed takes effect only upon its delivery by the grantor. Such delivery may not be conditional, but must be absolute.

2. Whether there has been a valid delivery of a deed may be determined from the intention of the parties.

3. Although the deed is not actually delivered into the possession of the grantee, there may be a constructive delivery when, by agreement of the parties, the deed is understood to be delivered at the time of its execution and the circumstances are such that the grantee is entitled to immediate delivery, or when the deed is delivered to a stranger for the benefit of the grantee.

4. It is incumbent upon the party asserting constructive delivery of a deed to show that the grantor intended to part with dominion and control over it.

5. In order that the court may find constructive delivery of a deed, the evidence must show that the grantor intended that title to the property should pass to the grantee at the time of execution of the deed. Such delivery cannot be based upon mere conjecture.

6. To establish an implied trust, the evidence must be clear and convincing.

7. Estoppel is based upon misleading words or conduct of the one who is to be estopped, and relied upon by the party claiming the benefit of the estoppel, which induced the one claiming estoppel to act or to refrain from acting, to his prejudice.

8. For reasons set forth in the opinion, the judgment of the district court is reversed and the case is remanded for further proceedings as herein directed.

Mackoff, Kellogg, Kirby & Kloster, and Greenwood, Swanson, Murtha & Moench, Dickinson, for plaintiffs, appellants, and cross-respondents.

Harvey J. Miller, Dickinson, and Floyd B. Sperry, Bismarck, for defendant, respondent, and cross-appellant.

STRUTZ, Judge.

The plaintiff, Tracy Frederick, with her son Victor as her attorney in fact, brought separate actions against Joseph Frederick and John Frederick to quiet title to certain Dunn County real estate described in the complaints. The two cases were combined for purposes of trial. Each defendant denied the plaintiff's claim and asserted ownership of the property described in the complaint in the action to which he was a party, demanding that title to such property be quieted in him.

The plaintiff is the widow of Alois Frederick, who passed away on January 31, 1953. During his lifetime, the said Alois was the owner of the land described in the complaints in the two actions and also of other property, both real and personal. On May 12, 1950, Alois and his wife, the plaintiff, joined in warranty deeds conveying the Northeast Quarter (NE 1/4) of Section 31--142--92 to Joseph Frederick and the Northeast Quarter (NE 1/4) of Section 29--142--92 to the defendant John Frederick. At the same time, warranty deeds were made and executed conveying certain property to children other than the named defendants, and a bill of sale covering all of the personal property of the grantors was prepared and executed.

On December 6, 1951, Alois Frederick and the plaintiff joined in the execution of other warranty deeds, one of which conveyed the West Half of the West Half (W 1/2 W 1/2) of Section 32--142--92 to the defendant Joseph, and another deed conveyed the East Half of the West Half (E 1/2 W 1/2) of Section 32--142--92 to the defendant John Frederick.

All of the warranty deeds contained the following reservation:

'Parties of the first part reserve a life estate in the above real estate; after the death of both parties of the first part, the above real estate shall belong to the party of the second part, without reservation or any lien or encumbrance whatsoever.'

After the execution of the first deeds on May 12, 1950, at which time Alois was blind, the deeds were kept in a box in the home of the grantor in Richardton. Subsequently, on February 14, 1951, Alois rented a safety-deposit box in the Farmers State Bank of Richardton, in his name individually. The deeds which had been executed on May 12, 1950, then were placed in this safety-deposit box and, when the deeds of December 6, 1951, were executed, they also were deposited in this box.

Because of his blindness, Alois always had his wife, the plaintiff, accompany him when he opened the safety-deposit box. She had possession of the keys during such vists to the bank, and at other times the keys were kept at their home.

All of the deeds remained in the safety-deposit box until December 22, 1953, approximately eleven months after the death of Alois. At that time, the deeds were removed by the plaintiff and she, in the company of the defendants, took them to Manning, North Dakota, where they were recorded in the office of the Register of Deeds. After the deeds had been placed on record, they were returned to the plaintiff who again placed them in the safety-deposit box in the bank. The record discloses that the deeds were recorded at that time in order to clear up the title so that an oil and gas lease could be given on the property.

The defendants contend that although there was no actual, physical delivery of the deeds of them during the life of the grantor, there was constructive delivery of these deeds. To support this contention, they assert that after the deeds had been executed they, on separate occasions, asked their father if they could buy portions of the land, but he told them that it would not be necessary for them to buy because he had prepared deeds to them, although nothing was said as to what particular land had been deeded. The defendants also claim that they were informed that the deeds to the land belonging to the grantor were in the bank and that the keys to the safety-deposit box were at the grantor's home. The defendants further claim to have made valuable improvements on the property, and they assert that they did this relying upon the assurance of the grantor that the land had been deeded to them.

The trial court held for the defendants on the question of delivery, finding that there was a constructive delivery of the deeds to the named grantees. On the matter of the attempted reservation of a life estate in the plaintiff, the court held that such attempted reservation was void because the plaintiff was a stranger to the title to the land deeded. The court did find, however, that the defendants would not receive absolute and complete title to the lands described in the deeds until the death of both of the named grantors, and that the interest in such lands, which the deceased Alois had attempted to give to his wife by the reservation, would not pass to the defendant grantees but would revert to the grantor's estate, creating in the grantor's estate an estate pur autre vie, for the life of the grantor's wife.

The first issue to be determined on this appeal is whether there was a valid delivery of the deeds to the defendant grantees. 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).

Applying these principles to the facts before us in these cases, was there a delivery of the deeds to the grantees named? There clearly was no actual delivery, because the grantor retained possession of the deeds. The deeds were not seen by the defendants before the grantor's death, and they were kept in the grantor's safety-deposit box at the bank. This box and the keys to it were under the grantor's control during his life-time, so there definitely was no actual delivery of the deeds.

The trial court found, however, that there had been a constructive delivery of the instruments. The court cited 23 Am.Jur.2d Deeds, Section 111, at 160, to support its finding that there is a strong presumption in favor of delivery if the deed is a voluntary settlement, where the grantee is a member of the family or is a near relative of the grantor, and that the mere fact that the grantor retains possession of the deed Is not conclusive if there is no circumstance other than the retention of the deed to show that the deed was not intended to be absolute; and that the intention of the parties is the controlling factor in determining the question of delivery (citing 23 Am.Jur.2d Deeds, Section 81, at 133).

Our law recognizes that there any be a constructive delivery of a deed, under certain circumstances. Section 47--09--09, North Dakota Century Code, provides:

'Though a grant is not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases:

'1. When, by the agreement of the parties, the instrument is understood to be delivered at the time of execution and the circumstances are such that the grantee is entitled to immediate delivery; or

'2. When it is delivered to a stranger for the benefit of a grantee and his assent is shown or may be presumed.'

It is obvious that Subsection 2 of this...