Heuer v. Kruse

• Decision Date: 09 September 1937
• Docket Number: No. 6483.,6483.
• Citation: 67 N.D. 552,274 N.W. 863
• Parties: HEUER v. KRUSE et al.
• Court: North Dakota Supreme Court

67 N.D. 552

274 N.W. 863

HEUER

v.KRUSE et al.

No. 6483.

Supreme Court of North Dakota.

Sept. 9, 1937.

Syllabus by the Court.

Where a father agrees with his son, that, if the latter will move upon a tract of land, establish his home thereon, and farm the same, the father will sell the land to him at a stated price payable within ten years, but that such purchase price need not be paid if it is not reasonably convenient for the son to pay and on the death of the father whatever of the agreed price remains unpaid shall be deducted from the son's share of the father's estate, and where pursuant to and in reliance on said agreement the son moves upon the land, establishes his home thereon, farms the same, and erects relatively valuable, substantial, and permanent improvements but makes no payments, at the death of the father such agreement will be held valid and enforceable as against the executrix of the father's estate and the devisees under his will, though no provision is contained therein for the carrying out of such agreement.

Appeal from District Court, Mountrail County; John C. Lowe, Judge.

Action to quiet title by Fritz H. Heuer against Anna Heuer Kruse, executrix of the estate of Fritz Heuer, deceased, and others. From a judgment for the plaintiff, defendants appeal.

Affirmed.

R. E. Swendseid, of Stanley, for appellants.

C. N. Cottingham, of Fairview, Mont., and F. F. Wyckoff, of Stanley, for respondent.

NUESSLE, Judge.

This action was brought to quiet title to certain land in Mountrail county. Plaintiff had judgment. The defendants appeal.

The facts material to the matter here in controversy may be stated briefly as follows: Fritz Heuer was a resident of Iowa. He had a family consisting of one daughter and six sons. The plaintiff, Fritz F. Heuer, was one of these sons. He also lived in Iowa. Fritz Heuer owned a quarter section of land in Mountrail county, N. D. This land is the tract over which the present controversy arose. The land is farming land. It was not profitable. He had nothing from it but trouble and taxes. He thought that the plaintiff could go out on the land and make a living on it and pay the taxes. So, in 1922 he proposed to the plaintiff that, if the latter would go to North Dakota and make his home upon the land, he would sell it to him for $3,000 upon ten years' time, with interest at 5 per cent. per annum, the plaintiff to pay the taxes as the same fell due, but that no payment need be paid on account of the principal and that the interest need not be paid by the plaintiff if he could not reasonably make such payments; that plaintiff's share in his father's estate would amount to more than the purchase price of the land; and that upon Fritz Heuer's death whatever remained unpaid on such contract should be deducted from the plaintiff's share in such estate. The plaintiff was doubtful as to whether he should enter into this arrangement. His father told him to go home and think it over. So the plaintiff went home, where he and his wife talked the matter over. And, though his wife objected to his doing so, the plaintiff accepted his father's proposal. Fritz Heuer and the plaintiff then went to their local banker and asked him to write up a contract. The banker did so. He used one of the bank's printed forms and made no copy. He included in the instrument thus drawn only such parts of the understanding and agreement as touched the price, the term, and the payment of the taxes. So far as appears, nothing was said therein as to the interest nor as to the time of payment other than that the term should be ten years. The banker testified that this instrument was only incidental to and a part of the understanding and agreement between Fritz Heuer and the plaintiff. Both of them signed it. The banker, however, kept it and put it in a pigeonhole in the bank's vault. He left the employ of the bank in 1926 and never again saw the paper which he had written for the Heuers. It appears, however, that some years after the instrument was executed Fritz Heuer procured and destroyed it.

Pursuant to the arrangement thus made between the plaintiff and his father, the plaintiff took over the land. He collected the rental for the year 1922 and rented it to a tenant for the years 1923 and 1924. In the spring of 1925 he and his wife moved to North Dakota and took up their residence upon the land. Plaintiff built thereon a house, a barn, various other small buildings, fences, dug a well and erected a windmill, planted trees and farmed the land. He paid the taxes thereon beginning with those for the year 1923 and thereafter up to and including those for the year 1929. He made no payment on the principal of the purchase price. But in 1928 he opened a gravel pit on the land and sold gravel therefrom and out of the proceeds paid his father $150. In 1933 he sent his father one-fourth of the first wheat allotment payment, which amounted to $17.50. His explanation as to the latter payment is that he was informed that since the title stood in his father's name it was necessary that a portion of the wheat allotment money be paid to him. During all of these years, and until 1933, plaintiff exercised undisputed dominion over the property. In 1929 he insured the buildings for a five-year period. Crops were poor and times hard. So in 1933 he obtained work as a highway maintainer and on account of this employment moved to another farm. He failed to pay taxes for the year 1930 and thereafter because of lack of money. In 1926 or 1927 Fritz Heuer made a will. In that will he devised the land in question to the plaintiff, conditioned on his paying the interest and taxes thereon. Thereafter he made a second will, giving all of his property to plaintiff's mother and making no mention of this North Dakota land. Plaintiff's mother died in 1933. Fritz Heuer then made a third will which was probated and under which his daughter Anna Heuer Kruse qualified as executrix. Under the terms of this will he gave the plaintiff $5. and made no mention of the North Dakota land. He died in 1935 and left an estate valued at several thousand dollars, which, under the terms of his will, except for the $5 given to the plaintiff, was divided equally among the six other children. It appears that each of these others has received or will receive about $1,200. The North Dakota land, at the time the arrangement between Fritz Heuer and the plaintiff was entered into, was worth about $3,000. The testimony is that at the time of the trial it was worth not to exceed $1,000 without the improvements which had been placed thereon by the plaintiff. These improvements were worth reasonably from $1,200 to $2,000.

It appears that some years after the plaintiff came to North Dakota and took up his residence upon the land in question ill feeling developed between himself and his father. Fritz Heuer thereafter said that the land was his and denied that the plaintiff had any right or interest in it. He told plaintiff's sister, the defendant Anna Heuer Kruse, that the plaintiff was not entitled to anything out of his estate unless she saw fit to give it to him; that it was for her to...