Gajewski v. Bratcher

• Decision Date: 27 June 1974
• Docket Number: No. 8886,8886
• Citation: 221 N.W.2d 614
• Parties: Loren GAJEWSKI and Mervin A. Gajewski, Plaintiffs/Appellants, v. Lyle D. BRATCHER et al., Defendants/Appellees. Civ.
• Court: North Dakota Supreme Court

Page 614

221 N.W.2d 614

81 A.L.R.3d 211

Loren GAJEWSKI and Mervin A. Gajewski, Plaintiffs/Appellants, v. Lyle D. BRATCHER et al., Defendants/Appellees.

Civ. No. 8886.

Supreme Court of North Dakota.

June 27, 1974.

Rehearing Denied Aug. 26, 1974.

Syllabus by the Court

1. Where the appeal was taken after the effective date of Rule 52(a), N.D.R.Civ.P., the rule governing the right of the parties with respect to the purpose and extent of the review authorized thereby applies.

2. The provisions of Section 28--18--09, N.D.C.C., are remedial in nature, and failure to serve and file specifications of error and insufficiency of the evidence with notice of appeal, as required thereby, is not fatal to the jurisdiction of the Supreme Court on appeal, and such defect may be permitted to be cured in a proper case.

3. For reasons stated in the opinion, the oral testimony received was incompetent and inadmissible to prove that the quitclaim deed was delivered only for the purpose of security.

4. The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument. Section 9--06--07, N.D.C.C.

5. Section 9--06--07, N.D.C.C., is a legislative enactment, in part, of the parol evidence rule.

6. The so-called parol evidence rule is neither a rule of evidence nor of interpretation, but rather one of substantive law.

7. Where a written contract is complete, clear and unambiguous and contains mutual and contractual covenants, or the consideration consists of a specific, direct promise to do or not to do certain things, its provisions cannot be changed by parol in the absence of fraud, misconduct or accident.

8. If the grantor makes a manual delivery to the grantee of a deed absolute in form, intending to part with all authority and dominion over the instrument, he makes an absolute delivery and title passes immediately in accordance with the terms of the deed notwithstanding any intention or understanding that its operation be delayed until the happening of a contingency.

9. Every grant of an estate in real property is conclusive against the grantor and every one subsequently claiming under him, except a purchaser or encumbrancer who in good faith and for a valuable consideration acquiries a title or lien by an instrument that first is duly recorded. Section 47--10--08, N.D.C.C.

10. Statements of a grantor made after the delivery of a deed are admissible in a suit to enforce title thereunder when such statements support the deed but not when they are against it.

11. The mere failure by the plaintiffs to object to the admission of intrinsic evidence that is incompetent under the parol evidence rule does not constitute the relinquishment of a known right or privilege by them.

12. The trial court erred in considering the evidence that was received in violation of the parol evidence rule.

13. The mere failure of the plaintiffs to object to the admission of intrinsic evidence cannot render competent or admissible, or impart any probative value, to evidence which was incompetent and inadmissible in the first instance under the parol evidence rule embodied in and expressly prohibited by our statute.

14. We find and determine that we not only have the legal right, but the explicit duty, to disregard and to exclude from our consideration in the rendition of our decision all of the oral or intrinsic evidence admitted without objection, in violation of the parol evidence rule, in the absence of a claim of fraud, accident or mistake.

15. Actual knowledge of the open, notorious and peaceful possession of real property by one other than the grantor is sufficient to charge the purchaser thereof with knowledge of the rights of the occupant.

16. Every person who buys or in any manner procures, or makes or takes any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof or the person making such promise or covenant has been in possession, or he and those by whom he claims have been in possession of the same or have taken the rents and profits thereof, for the space of one year before such grant, conveyance, sale, promise, or covenant is made, is guilty of a misdemeanor.

17. Deeds executed in violation of the provisions of Section 12--17--14, N.D.C.C., prohibiting the conveyance of land held adversely to the grantors, are void as to persons in adverse possession.

18. The statute prohibiting conveyances of land held adversely to the grantor renders void, as against persons in adverse possession under a claim of title, conveyances by grantors who have not been in possession or taken rents and profits therefrom for the space of one year prior thereto.

19. Applying the provisions of Section 12--17--14, N.D.C.C., as we have construed it, we find and determine that the warranty deed which the defendants obtained is champertous and void.

20. It is the general rule that where the names of the grantees are left in blank, at their request, in such case the law reasonably and necessarily implies consent to insert the names of the grantees, where, as here, the grantors knew that the names of the grantees were to be written in by them and did not object thereto.

Loren Gajewski and Mervin A. Gajewski, pro se.

Bjella & Jestrab, Williston, for defendants and appellees.

C. F. KELSCH, District Judge.

This is an appeal by the plaintiffs from two judgments dismissing their action to determine adverse claims against all of the defendants and quieting the title of the defendants Lyle D. Bratcher and Sharon Bratcher to the premises involved therein. The plaintiffs' amended complaint contains five separate and distinct causes of action. The first cause, and the only one which was tried upon the merits in the district court, was brought to determine adverse claims to the Southwest Quarter of Section 12, Township 151 North, Range 102, situated in McKenzie County of this State.

The defendants Lyle Bratcher and Sharon Bratcher for their answer, in addition to a general denial, have set forth four affirmative defenses and a cross-claim wherein they allege, in effect:

(1) That the quitclaim deed upon which the plaintiffs base their claim of ownership is null and void because the names of the grantees were left in blank at the time it was delivered;

(2) That said deed was given as security only for the repayment of a loan in the sum of $4,000.00, plus the sum of $200.00 a year for the payment of taxes and repair of buildings, payable at the end of a five-year period, or a total of $5,000.00;

(3) That they tendered a draft to the plaintiffs in the sum of $5,000.00 in full payment of said debt and the discharge of the lien created thereby; and

(4) That they were the owners in fee simple of said premises under warranty deed dated November 25, 1966, which was filed for record and duly recorded in the office of the register of deeds of McKenzie County, wherein the land is situated.

The plaintiffs' first cause of action was tried to the court without a jury. The trial began on June 19, 1968, and after a short continuance was completed on August 20, thereafter, whereupon the court took the case under advisement, and that on the 18th day of April, 1972, or more than three years and seven months thereafter, the trial judge, without the benefit of a transcript, signed two separate sets of findings of fact, conclusions of law and orders for judgment, apparently prepared by the attorneys for the defendants. In the first order he dismissed the plaintiffs' first cause of action against Edward Bratcher upon the merits with prejudice and without costs; and in the second, he dismissed the plaintiffs' action against the defendants Lyle and Sharon Bratcher upon the merits with prejudice, and further found and held, in effect: that the defendants Lyle and Sharon Bratcher were the owners in fee simple of the lands in issue as evidenced by warranty deed given to them by Glenna Gajewski which had been duly recorded, and ordered that their fee simple title to said premises be quieted against all of the adverse rights, interests and estates of the plaintiffs thereto.

Judgments were entered accordingly on the 4th day of August, 1972, and notice of entry thereof was served by certified mail upon the plaintiffs on the 9th day of August thereafter, from which said judgments the plaintiffs have perfected an appeal to this court within the time and manner provided by law.

At the outset we are confronted with defendants' motion to dismiss these appeals, or in the alternative to limit our review only to errors of law appearing on the face of the judgment roll, on the grounds:

(1) That no specifications of error of law or of the insufficiency of the evidence were served with the notice of appeal, as required by § 28--18--09, N.D.C.C.; and

(2) That no demand for a review of all of the evidence was made in the notice of appeal.

We find, from an examination of the record:

(1) That the notice of appeal was served and filed on the 26th day of September, 1972;

(2) That no specifications of errors of law complained of or insufficiency of the evidence were served with the notice of appeal, as required by Section 28--18--09, N.D.C.C.; and

(3) That the appellants did serve and file specifications of error and insufficiency of the evidence, which were incorporated by the district court in the settled statement of the case and certified to us upon appeal.

Upon this record we observe:

(1) That the Legislative Assembly repealed Section 28--27--32, N.D.C.C., which abolished the right to trial de novo in the supreme court in an action triable to the court without a jury. Chapter 311, S.L.1971; and

(2) That after the repeal of said statute we amended Rule 52(a) of the Rules of Civil Procedure, which became effective August 1, 1971, so as to provide, insofar as it is here...