Hagerott v. Davis

• Decision Date: 28 December 1944
• Docket Number: 6945.
• Citation: 17 N.W.2d 15,73 N.D. 532
• Parties: HAGEROTT v. DAVIS et al.
• Court: North Dakota Supreme Court

17 N.W.2d 15

73 N.D. 532

HAGEROTT v. DAVIS et al.

No. 6945.

Supreme Court of North Dakota

December 28, 1944

Syllabus by the Court.

In this action, where the defendant and respondent in her counterclaim alleged she was the owner of the real estate involved in the action by virtue of a gift there made to her by her father, the then owner of the land, who agreed to convey the title to her by proper conveyance or by will to be effective at his death, the evidence is examined and it is held:

First that the said defendant and respondent has failed to show her father made any gift to her of said land;

Second, that the defendant and respondent has failed to show any equitable trust involving said land, of which she was to be the beneficiary, was created by her father.

C. F. Kelsch, of Mandan, for plaintiff and appellant.

Cox, Cox, & Pearce, of Bismarck, for defendants and respondents.

BURR, Judge.

For some time prior to 1923, Ernst Hagerott was the owner of a large number of quarter sections of land in this state, including the east half of section 31, township 140, range 82, in Morton County, North Dakota--the property in issue here. His family consisted of his wife the plaintiff, three sons, and six daughters including Ida Davis, the defendant herein. At that time, three of the daughters--Rose, Emma, and Alma--were married.

January 9, 1923, Ernst Hagerott, hereafter called the father, made a will, the important provisions being:

'Second: I give, bequeath and devise to my beloved wife, Dorette Hagerott, all my real and personal property of every name, nature, kind and description.

'Third: For the reason that I have heretofore given and transferred to my sons, Walter Hagerott of Mandan, North Dakota, and Henry H. Hagerott of Center, North Dakota, and to my daughter, Rosy, now Mrs. Rosy Corders, of Center, North Dakota, certain valuable properties, I give and bequeath to them no part of the real or personal property belonging to me at my demise. To my sons, Walter and Henry, and to my daughter, Rosy, I leave the remembrance of my deepest love and affection.

'Fourth: To my son, George Hagerott of Mandan, North Dakota, and to my daughter, Emma Hagerott, now Mrs. Emma Bartrum, of Center, North Dakota, and to my daughter, Alma, now Mrs. Alma Pelkey of Bismarck, North Dakota, and to my daughters Ida, Alice and Annie of Mandan, North Dakota, I give and bequeath no part of the real or personal property belonging to me at my demise, as I have every trust and confidence that my good wife, Dorette, will care and provide for them properly out of the property she may have at her demise. To my son George, and to my daughters Emma, Alma, Ida, Alice and Annie I leave the remembrance of my fondest love and affection.'

The father died in August, 1938. The mother as executrix and heir began probate proceeding and the will was admitted to probate, the defendant Ida Davis being made a party to the proceedings. The inventory set forth this land involved as part of real property of the estate. The county court, in the final decree of distribution, entered and recorded April 15, 1943, described this land as being part of the estate of the decedent together with other real estate, and 'assigned to and vested in the said Dorette Hagerott as the sole devisee and legatee of the Last Will and Testament of Ernst Hagerott, deceased, forever, in the following proportions, to-wit:

'(1) All the right, title, interest, and estate of Ernst Hagerott, deceased, in and to all of the above described real property in fee simple forever.

'(2) All the right, title, interest and estate of Ernst Hagerott, deceased, in and to all of the above described personal property as her sole personal property forever.

'To have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining to the said above person and her heirs and assigns, forever.'

In 1930 Ida Hagerott and Elwood Davis intermarried and ever since some time in 1935 they resided on this land in dispute.

Shortly after the entry of the decree of distribution the mother, claiming to be the owner of said land under the provisions of the will and the final decree, served notice upon the Davises to vacate said premises and to deliver them up to her. They refused so to do under the claim that the l had been given to Ida by her father.

The mother then commenced this action to quiet title to the land in herself and to determine adverse claims. The complaint is in the statutory form, requires the defendants to set forth all their claims to said property, and asks that the same be adjudged null and void and that title in the land be quieted in plaintiff.

Elwood Davis filed a separate answer wherein he 'disclaims any right, title or interest in or to the premises described in plaintiff's Complaint.'

Ida Davis filed and served an answer wherein she alleges that in 1926----

'This answering defendant alleges that in the year 1926 one Ernest Hagerott, the father of this defendant and husband of the plaintiff, was the owner in fee simple of the premises described in plaintiff's Complaint. That in the year 1926 the said Ernest Hagerott told this defendant that said land was hers and that she sould regard and treat it as belonging to her, and then and there promised and agreed that it would be formally conveyed to her either during the lifetime of Ernest Hagerott by proper conveyance, or by will effective at his death. At the instance of said Ernest Hagerott, and in reliance upon the promise and agreement to convey said land, this defendant thereafter placed valuable improvements on said lands at her own expense.

'That this defendant was married in the year 1930 to Elwood Davis, and has ever since been and now is the wife of said Elwood Davis.

'That in or about the year 1935, the said Ernest Hagerott, the father of this defendant, urged this defendant to make use of the land which he had agreed and promised would be hers and to make her home upon it and place improvements thereon. That in consideration of the promise and contract to so convey said land, this defendant agreed to deliver to said Ernest Hagerott, during his lifetime, one-half of the crop raised upon said land, and said Ernest Hagerott further agreed to assist in financing the farming of said land during his lifetime, and requested that one-fourth of the crops from said land be delivered to the plaintiff herein, the mother of this defendant, during the remainder of her natural life-time, if he, the said Ernest Hagerott, should die before the said plaintiff, to which this defendant agreed.

'That thereafter, in reliance upon said promise and contract, this defendant, with the assistance of her husband, did place further valuable improvements on said premises, to the total value of $1735.00, and paid substantial amounts for taxes levied on said lands. That this defendant, together with her husband, has made her home upon said lands since the year 1935.

'That this defendant has duly performed all of the conditions contained in said oral agreement and contract with Ernest Hagerott, her father, who died in the year 1938, and is the owner of said premises, subject only to the right of the plaintiff to receive one-fourth of the crops raised on said lands during her natural life-time.

'This defendant further alleges that the plaintiff, Dorette Hagerott, was aware and had knowledge of said contract and agreement as aforesaid, and has at no time objected to the dominion of this defendant over said lands or the placing of improvements thereon, or otherwise disputed this defendant's ownership, until the commencement of this action, and that the said plaintiff is estopped from denying the title of the defendant to said lands.'

The defendant Ida Davis further filed and served a cross-complaint, wherein she alleges:

'That in the year 1926 one Ernest Hagerott, the father of this defendant and the husband of the plaintiff, was the owner in fee simple of the premises described as follows, to-wit: The East Half (E 1/2) of Section Thirty One (31) in Township One Hundred Forty (140) North, of Range Eighty two (82) West, in Morton County, North Dakota. That in the year 1926 the said Ernest Hagerott told this defendant that said land was hers and that she should regard and treat it as belonging to her, and then and there promised and agreed that it would be formally conveyed to her either during the life-time of Ernest Hagerott by proper conveyance, or by will effective at his death. At the instance of said Ernest Hagerott, and in reliance upon the promise and agreement to convey said land, this defendant thereafter placed valuable improvements on said lands at her own expense.

'That in or about the year 1935, the said Ernest Hagerott, the father of this defendant, urged this defendant to make use of the land which he had agreed and promised would be hers and to make her home upon it and place improvements thereon. That in consideration the promise and contract to so convey said land, this defendant agreed to deliver to said Ernest Hagerott, during his life-time, one-half the crop raised upon said land, and said Ernest Hagerott further agreed to assist in financing the farming said land during his life-time, and requested that one-fourth the crops from said land be delivered to the plaintiff herein, the mother this defendant, during the remainder her natural life-time if he, the said Ernest Hagerott, should die before the said plaintiff, to which this defendant agreed.

'That thereafter, in reliance upon said promise and contract, this defendant, with the assistance of her husband, did place further valuable improvements on said premises, to the total value of $1735.00, and...