Gilfillan v. Schaller
| Decision Date | 05 December 1913 |
| Citation | 144 N.W. 133,32 S.D. 638 |
| Parties | GILFILLAN v. SCHALLER. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.
Action by Caroline Gilfillan against Ralph A. Schaller. Judgment for defendant, and plaintiff appeals. Affirmed.
Harry Kunkle, of Yankton, and Earnest D. Ede, of Huron, for appellant.
W. A Lynch and Lyman T. Hinckley, both of Huron, for respondent.
Plaintiff brought this action in October, 1910, and sought a decree of the circuit court vacating and setting aside a foreclosure of one certain real estate mortgage, under which foreclosure defendant claimed to have become the owner of a certain quarter section of land situate in Beadle county, S. D adjudging defendant to be a trustee holding the title in and to a two-fifteenths undivided interest in such real estate for and on behalf of plaintiff; and granting a recovery of damages for the use and occupation of said property.
The cause was tried to the court without a jury, and the court made findings of fact which, so far as material to this decision, were in substance as follows: One John C. Schaller was the United States patentee of the quarter section in question. He resided thereon until the year 1900, when he leased this quarter, together with an adjacent quarter, to his son, the defendant. Schaller then moved to Iowa, where he died testate in February, 1902. He exercised acts of ownership over said premises constantly and paid taxes thereon and treated the same in all respects as his own land until his death. John C. Schaller owned the other quarter section of land above mentioned, which he used in connection with the first quarter as one farm. By his will John C Schaller devised both of said quarter sections of land to the defendant, subject to the payment by defendant out of his own property, of certain sums, to the other children of deceased, one of whom is the plaintiff and appellant herein. In said will defendant was appointed one of the executors. In December, 1887, John C. Schaller and his wife executed a mortgage upon the quarter section of land involved in this action; the same securing the payment of $500. In 1888 John C. Schaller conveyed the said quarter section by warranty deed to his said wife, which deed was filed for record and recorded in the office of the register of deeds of Beadle county. In 1896, the mortgagee named in the mortgage assigned the mortgage and the note secured thereby to John C. Schaller, which assignment was placed of record. The wife of John C. Schaller died in 1893, never having exercised any acts of ownership over the land in question, and none of the children had any actual knowledge that the title to the said quarter section had been conveyed to their mother, until they received notice thereof after the death of their father. After the father's death, an attorney having been employed to probate his estate, it was discovered that the title to the said quarter now in controversy stood in the name of the mother. Probate proceedings were commenced upon both estates. Soon thereafter, being some time in the year 1902, upon the advice of the attorney, all of the adult children of John C. Schaller assembled at the home of defendant-which was upon the quarter now in controversy-for the purpose of considering the situation of said estates. Defendant advised the other heirs that he was not willing to accept the provisions of the will unless he could acquire title to both tracts of land, for the reason that the sum he would have to pay in bequests exceeded by several hundred dollars the value of the one quarter section of land standing in their father's name. It was then agreed by and between the several heirs-one being the plaintiff herein-that the will should stand and its provisions be carried out the same as if John C. Schaller had been invested with the title to both said tracts of land as assumed in said will; that defendant should pay all the expenses of probate and pay the legacies to each heir, as provided by the terms of said will; and that he might utilize the mortgage held by said John C. Schaller with which to invest himself with the title to the quarter described therein.
From the time of such agreement no further proceedings were had in the probate of the mother's estate, but the will of John C. Schaller was established and administered in accordance with its terms and in accordance with the aforementioned agreement entered into by the said heirs. Final account in his estate was presented and approved and a decree of distribution was entered in April, 1904, which decree purported to set over both of the quarter sections to defendant, which decree recited that the devise of this land had been made subject to the payment of these several bequests and that such bequests had been paid and vouchers filed therefor. Due notice of the proceedings in the administration of the estate of John C. Schaller was had by the several heirs. One of the said quarters was appraised, in the probate proceedings, at $750; the other-the quarter now in controversy-was worth, at that time, not to exceed $1,050. The plaintiff accepted from defendant the payment of the amount she was to receive from him under the terms of the will, receiving the same prior to the entry of said decree of final distribution, and she has never returned nor offered to return the same, nor did she offer, in her complaint, to allow it to be applied upon the claim for money damages she made therein. Defendant, as executor of his father's estate, proceeded to and did, in March, 1903, foreclose, by advertisement, the said mortgage hereinbefore mentioned, and at the foreclosure sale, bid in the said land, in his private capacity and not as executor, and afterwards took out a sheriff's deed; such foreclosure being made and the title to said land taken by defendant in pursuance of the understanding and agreement between him, the plaintiff, and the other heirs of said estate and for the express purpose of investing a complete title to said premises in defendant. From the time of entering into the agreement and receiving payment of the amount of her bequest, plaintiff was, up to the time of bringing this action, a frequent visitor at the home of defendant upon the land in question, and was thus fully aware of the improvements made upon said land by defendant. She never intimated to defendant any dissatisfaction, but at all times acquiesced in the execution of the will and the way the matter had been arranged. Between the time of the entry of the said decree of distribution above...
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