Ingwaldson v. Skrivseth
| Decision Date | 27 April 1898 |
| Docket Number | 6731 |
| Citation | 75 N.W. 772,7 N.D. 388 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Traill County; Fisk, J.
Action by B. E. Ingwaldson, as trustee for Paul Olson and Ovedia Olson, against J. L. Skrivseth and Bertha Skrivseth, to set aside a deed. Defendants had judgment, and plaintiff appeals.
Affirmed.
M. A Hildreth and B. E. Ingwaldson, for appellant.
Carmody & Leslie, for respondents.
The plaintiff, Ingwaldson, as trustee for Paul and Ovedia Olson brings this action to set aside a deed executed by the defendant J. L. Skrivseth to the defendant Bertha Skrivseth covering certain property in the City of Hillsboro, in Traill County. The defendants are husband and wife. Paul Olson is the father of Ovedia Olson. The very voluminous pleadings in this case may be thus summarized: The complaint alleges that on September 30, 1896, a cause of action had accrued in favor of Paul Olson against J. L. Skrivseth, and on the same date a cause of action had accrued and was accruing in favor of Ovedia Olson against the same party. That plaintiff, Ingwaldson, was the attorney for both Paul and Ovedia Olson. That the action in favor of Paul Olson was actually commenced on that day by service of summons upon said J. L. Skrivseth. Both of said causes of action were based upon the fact that said Ovedia Olson had been seduced by said J. L. Skrivseth and was then pregnant by said party. On said September 30th, said Ingwaldson, as attorney for said parties, entered into an agreement with said J. L. Skrivseth for the settlement of all claims growing out of such seduction, on the part of both father and daughter. That the total amount of damages accruing to said parties, was fixed at the sum of $ 2,500, and that said J. L. Skrivseth executed to said Ingwaldson, as trustee for said Olsons, a conveyance, in form a warranty deed, of the property in controversy, which deed was to be held by said trustee as security for the payment of said amount; and said complaint continued: "In case of nonpayment thereof, or attempt by the said defendant, J. L. Skriveth, or any one for him, to avoid such payment thereof, such warranty deed was to be placed of record, and should then and was to guaranty the payment of such sum or sums as the said Paul Olson and Ovedia Olson might be found entitled to in said several causes of action against defendant, J. L. Skrivseth." The ownership of said property by J. L. Skrivseth was alleged, and it was declared that it was expressly agreed and understood that, in case said Skrivseth attempted to avoid such settlement or hinder or delay such payment, then such deed should become an absolute conveyance for the benefit of said Paul and Ovedia, "and be applied in payment of any recovery they might be found entitled to therein." It is further alleged that five days thereafter said J. L. Skrivseth executed a deed of said premises to the defendant Bertha Skrivseth, but that said deed was without consideration, and was taken with full knowledge of the prior deed to Ingwaldson as trustee, and that it was given and received for the sole purpose of defeating the claims of the said Paul and Ovedia Olson. It may be here stated that the deed to Bertha was filed for record prior to the filing of the deed to Ingwaldson. It also appears from the complaint and the evidence that the action brought by Paul Olson was speedily pressed to judgment. No appearance was made by the defendant. The evidence was submitted on November 4, 1896, and judgment for plaintiff rendered November 20, 1896, for the sum of $ 700, and costs, and that judgment had been fully paid before this action was tried. Bertha Skrivseth alone answers. She denies the existence of any claims on the part of Paul or Ovedia Olson against J. L. Skrivseth, but admits the making of the deed to Ingwaldson as trustee, and claims that such deed was obtained by fraud and duress, and was void. She admits the execution of the deed to her, and alleges that it was given for valuable consideration, and was received by her without any knowledge of the prior deed to Ingwaldson, and without any knowledge that Paul Olson had brought an action against J. L. Skrivseth, and without any intent to hinder, delay, or defraud any creditor. Further, she alleges that on the 15th day of October, 1896, while not admitting the existence of any valid claim, yet, to avoid all scandal and litigation, she settled with Ovedia Olson for all claims of every name and nature, growing out of said alleged seduction, for the sum of $ 650, then paid by her to said Ovedia Olson, and as evidence of said settlement and payment the said Ovedia then and there executed and delivered to her a receipt and release in the following language: That at the time such payment was made said Ovedia executed and delivered to said defendant a quit-claim deed for said premises, and promised that the plaintiff, Ingwaldson, should also execute to said defendant a quit-claim deed. That at the time said payment was made said defendant did not know of the pendency of the action in favor of Paul Olson against J. L. Skrivseth, but supposed that such payment covered all claims arising from the alleged seduction. The answer also sets forth the recovery of the judgment by Paul Olson and its payment. There was a reply to this answer, admitting the payment of the Paul Olson judgment, and admitting the execution by Ovedia Olson of the receipt and release set forth in the answer, but claiming that the same was procured by fraud and undue influence exercised over her by Rev. J. Lonne and one H. J. Nyhus, both of whom were at the time, but unknown to said Ovedia, acting as the agents of Bertha Skrivseth; that the same was procured without the knowledge of the plaintiff, Ingwaldson, the attorney for said Ovedia Olson; and that as soon as he obtained knowledge of the same, and on December 22, 1896, the said Ovedia Olson gave notice of a rescission of said agreement, pursuant to section 3932, Revised Codes, and offered to return everything of value that she had received under such settlement. It was also alleged that Ovedia had never received any of the money so left with Nyhus as her trustee.
In the view that we take of this case, there are some questions raised on the record that it will not be necessary to discuss. The legality of the transfer from J. L. Skrivseth to Bertha Skrivseth becomes material only after the plaintiffs have shown that there exists some claim in their favor, or in favor of one of them, that ought to be enforced against the property as the property of J. L. Skrivseth. Concerning the conveyance of September 30, 1896, made by J. L. Skrivseth to Ingwaldson as trustee, we have to say that we regard it as security only, although in form a deed absolute. The trial court expressly so found, and, taking the complaint and testimony together, we think the finding correct, except upon a single contingency, and that was this: In case the grantee should sell the property to a third party, and pay the grantor Skrivseth $ 1,500 (Ingwaldson says $ 1,200,) then the conveyance should be placed upon record and become absolute. The property was valued by the witnesses from $ 2,500 to $ 4,000. But no such sale was ever made. Treating the conveyance, then, as security only, we must ascertain for what it stood as security. No note was given or other evidence of indebtedness. If all damages arising from the seduction were liquidated at $ 2,500, and Skrivseth promised absolutely to pay that sum, we do not understand why the attorney did not take some evidence of indebtedness, because the original claim arising from the seduction was merged in the settlement, and thereafter the only cause of action left was the express promise to pay, and it was a violation of the terms of the settlement for Paul Olson to press to judgment his action based upon the original seduction, wherein he claimed damages to the extent of $ 10,000. These considerations force us to believe that the conveyance stood as security for such amounts as Paul Olson and Ovedia Olson might recover against said Skrivseth by reason of any matters growing out of such seduction. Of course, in case of a sale of the property, as already indicated, it would not have been necessary to establish...
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