Hunt v. Holmes

• Decision Date: 03 February 1934
• Docket Number: No. 6213.,6213.
• Citation: 252 N.W. 376,64 N.D. 389
• Parties: HUNT v. HOLMES et al.
• Court: North Dakota Supreme Court

64 N.D. 389

252 N.W. 376

HUNT

v.HOLMES et al.

No. 6213.

Supreme Court of North Dakota.

Jan. 15, 1934.

Rehearing Denied Feb. 3, 1934.

Syllabus by the Court.

1. In the instant case the question of a material alteration of a deed was not an issue and the court erred in holding that there was a material alteration, but in a case where a plaintiff seeks to annul a deed of conveyance on the ground that it has been materially altered after its execution, the burden to show such alteration rests upon the party assailing the deed and in such case must make out his case by evidence which is clear, strong, and convincing.

2. Where a father intending to make a gift to his daughter of real estate bought and paid for the same and caused the vendor to execute and deliver to him a deed therefor, naming his daughter as grantee, such delivery was sufficient to pass title to the daughter immediately upon the delivery of the deed to the father.

3. Evidence examined and held that it shows that the father intended a present gift at the time of the delivery of the deed.

4. A transaction between relatives, which is challenged for fraud, should be closely scrutinized, but such transaction standing alone is not sufficient to justify a finding of fraud.

5. A fraudulent intent to avoid a transfer under section 7220, Compiled Laws 1913, must be established as a matter of fact under section 7223, Compiled Laws 1913, and the burden is upon the party attacking the transfer to establish such intent.

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

Action by A. J. Hunt against Hazel L. Holmes, a minor, by Ida E. Holmes, guardian ad litem for the minor, and another. From an adverse judgment, defendants appeal.

Judgment reversed and action dismissed.

Hanson & Hanson, of Bowbells, for appellants.

Palda, Brace & Palda, of Minot, for respondent.

BURKE, Judge.

In this action the plaintiff, in substance, alleges in his complaint that prior to the 6th day of November, 1930, one Ralph V. Carter was indebted to Charles T. Holmes and to secure the payment of said indebtedness executed a mortgage on lots 5 and 6, block 22 of the townsite of Portal, Burke county, N. D.; that on or about the 6th day of November, 1930, said Ralph Carter and Mrs. Carter, in payment of said indebtedness, made, executed, and delivered to the said Charles T. Holmes, a warranty deed, conveying said premises; that the name of Hazel L. Holmes was inserted in the deed above described, as grantee at the express request and direction of the said Charles T. Holmes for the purpose of concealing the fact that said property belonged to the said Charles T. Holmes; that at the time of said conveyance Charles T. Holmes was indebted to this plaintiff and an action was then pending in the district court of Burke county which resulted in a judgment of $5,575.79 and costs taxed at $25.55, and it was further adjudged in said action that the defendant H. W. Gill, as executor of Charles T. Holmes, deceased, pay the said judgment with costs out of the estate of said Charles T. Holmes in the regular course of administration thereof; that a transcript of said judgment was filed in the county court of Burke county as a claim against said estate and was allowed and ordered paid; that there are other creditors of said estate having claims allowed and ordered paid, but there is not sufficient assets in the hands of the executor for the payment thereof and the plaintiff brings this suit in his own name for himself and on behalf of the other creditors; that there was no consideration for the deed to Hazel L. Holmes and the deed was never delivered; plaintiff alleges that the said property is, in equity, a part of the estate of Charles T. Holmes and prays that the same be subjected by said executor to the payment of claims against said estate; that the title of said estate be quieted as against the defendant Hazel L. Holmes.

Hazel L. Holmes, appearing by Ida Holmes her guardian ad litem, for her answer alleges, in substance, that since the 6th day of November, 1930, she has been the owner in fee simple of the said premises; that Charles T. Holmes had the said land conveyed to her as a gift and did direct and procure Ralph V. Carter and Mary V. Carter to issue and give said deed to said premises to Hazel L. Holmes as grantee for her use and benefit; that Ida Holmes, for the use and benefit of the said Hazel L. Holmes, paid past due delinquent taxes against said premises for the years 1928, 1929, 1930, 1931, amounting to $393.76, and the further sum of $120 due on a real estate mortgage against said premises and $30 for repairs. Answering, the defendant further alleges that Hazel L. Holmes is the owner in fee of said premises and prays to have the title quieted in her.

There is a stipulation of facts in the case wherein it appears that Charles T. Holmes died on the 10th day of November, 1931. The fifth paragraph of the stipulation states that on the 6th day of November, 1931 (this is evidently a clerical error as the deed is dated November 6, 1930), Ralph V. Carter and Mary V. Carter, for the purpose of making payment of said indebtedness to Charles T. Holmes, made, executed, and delivered to said Charles T. Holmes their certain deed, conveying the property above described and that said Hazel L. Holmes was named as grantee in said deed at the request of said Charles T. Holmes and with the consent of the said Ralph V. Carter and Mary V. Carter; that at the time of said conveyance Charles T. Holmes was indebted to the plaintiff and there was an action then pending which resulted in a judgment in favor of the plaintiff for the sum of $5,575.79, which judgment the executor of Charles T. Holmes was ordered to pay, and, on the filing of the said judgment against the said estate of Charles T. Holmes in the county court, it was allowed and ordered paid by the county judge; that the deed was delivered by the said Charles T. Holmes to William Metzger, who filed the deed for record in the office of the register of deeds April 15, 1932, and the same was duly recorded; that at the time of the execution of the deed to Hazel L. Holmes she was fifteen years of age; and that at said time the said Ralph V. Carter and Mary V. Carter, his wife, for the purpose of paying and satisfying the indebtedness to the said Charles T. Holmes, as set forth in paragraph three of the complaint, agreed to convey said premises to the said Charles T. Holmes and thereupon the said Charles T. Holmes, desiring and intending to convey the said premises as a gift to his daughter, the said Hazel L. Holmes, and in furtherance of said desire and intent, the said Charles T. Holmes did then direct and procure the said Ralph V. Carter and Mary V. Carter, his wife, to issue and give said deed to said premises in the name of said Hazel L. Holmes, as grantee.

There is some oral testimony from which it appears that shortly after the execution of the deed, Charles T. Holmes delivered the deed to William Metzger, who states that at the time of handing him the deed he said he was giving the property to Hazel and that if anything happened to him he would want the girl to have some * * * (witness interrupted); that it was impossible to put the deed on record as the taxes were not paid for the year 1928 and from then on. As soon as the taxes were paid, he had the deed recorded. Mr. Chezik testified that Holmes told him that he was making a deal for the property and was going to give it to his kid. The witness Donovan testified that in October, 1930, Holmes told him that he had taken the property over from Mr. Carter for Hazel, his daughter. The county judge testified that the total amount of all claims against the Holmes estate was $7,362.84; that the exemptions amounted to $3,500; and that the total inventory of the North Dakota property, in said estate, in North Dakota was the sum of $10,586.22. There is further testimony showing that Holmes had real estate in Michigan.

The deed in question was introduced in evidence without objection and no evidence of an alteration therein was offered. The trial judge found as a fact that the parties had stipulated the facts “wherein it was stipulated that the name of the said Hazel L. Holmes was inserted in said deed as grantee at the request of said Charles T. Holmes. That instead of relying upon the said stipulation, the defendants offered in evidence the deed hereinbefore mentioned. * * * This exhibit was offered and received as evidence of title by the defendant, Hazel L. Holmes. This deed bears upon its face unmistakable evidence of an alteration in that the name ‘Hazel L. Holmes' appears to have been written over an erasure, and a careful inspection shows that the name ‘Charles T. Holmes' was erased therefrom, portions of the outlines of the letters in said name appearing on inspection under a lens. The deed also on inspection shows that the words ‘Portal, N. D.’ following the name...