Jester v. Jester

• Decision Date: 02 June 1949
• Docket Number: 7085.
• Citation: 37 N.W.2d 879,76 N.D. 517
• Parties: JESTER et al. v. JESTER.
• Court: North Dakota Supreme Court

37 N.W.2d 879

76 N.D. 517

JESTER et al. v. JESTER.

No. 7085.

Supreme Court of North Dakota

June 2, 1949

Syllabus by the Court.

1. In an action to determine adverse claims where the defendant interposes a counterclaim asserting title in himself adverse and superior to that of the plaintiff such defendant becomes as to his claim of title, in effect, a plaintiff and the court must determine and adjudicate the claims set forth in the counterclaim even though plaintiff's cause of action may fail.

2. In the instant case the evidence is examined and it is held for reasons stated in the opinion that the defendant has failed to establish that he is the owner of the land described in the complaint or has any interest therein by virtue of a contract with the former owner, and that the defendant has no interest therein other than as an heir of his brother, John C. Jester, deceased.

3. It is a general rule of equity pleading that all persons who are materially interested in the event of the suit or of the subject matter should be made parties either as plaintiffs or defendants to the end that the court may grant full relief and adjust in the one suit the rights of all parties interested which really grow out of or are connected with the subject matter of the suit.

4. In the instant case the undisputed proof shows that parties necessary to a determination of the question of ownership of the land involved in this action were not made parties thereto and hence that judgment may not be rendered which will adjust the rights of all parties interested in the subject matter. In view of the character of the interests of the respective owners, the status of the property and of the parties, the action of the plaintiffs will be dismissed without prejudice to the commencement of further action or proceeding to enforce or protect their rights as heirs of John C. Jester, deceased.

Sinness & Duffy, Devils Lake, for plaintiffs and appellants.

J J. Kehoe and C. E. Joseph, Cando, for defendant and respondent.

POLLOCK District Judge.

The plaintiffs in this action are two half-sisters and a half-brother of John C. Jester, deceased. The defendant is a half-brother of said decedent, who, on November 8th, 1944 was appointed by the County Court of Towner County as Administrator of the Estate of John C. Jester, deceased.

The plaintiffs bring this action against the defendant as an individual and not in his capacity as Administrator of the Estate of John C. Jester, deceased. The action is one to quiet title to three-fifths interest in fee in 240 acres of land in Towner County. The complaint is in the usual form in an action to determine adverse claims and alleges that the plaintiffs have an interest, to-wit: an undivided three-fifths title in fee, as heirs of John C. Jester deceased, in the lands described in the complaint, and that the defendant claims certain estates or interests in such lands adverse to the plaintiffs. The prayer for judgment is in the usual form in an action to determine adverse claims. NDRC 1943, Section 32-1704. The defendant in his answer admits that he claims certain estates or interests adverse to the plaintiff. The defendant also admits that John C. Jester, who died August 30th, 1944, was seized in fee of the premises in question; that plaintiffs and defendant together with others are heirs at law of said decedent and that said defendant, Harvey C. Jester, duly qualified as administrator of the estate of said decedent on the 8th day of November, 1944. The defendant as an affirmative defense alleges a verbal agreement under the terms of which said defendant was to aid and assist John C. Jester in looking after said property and in caring for him during his lifetime, including his last illness and to defray the expense of such illness and funeral expenses and in consideration thereof the said defendant was to have all of the property of said John C. Jester as compensation for such services. Defendant further alleges that he performed such services and that in consequence he is the owner of the land described in the complaint and that the plaintiffs have no estate or interest in or lien or encumbrance upon the same. The case was tried to the court without a jury and the trial court made findings in favor of the defendant. The court found that the agreement set forth by the defendant had been made and that the defendant had fully complied with the same and it ordered that judgment be entered ajudging that the plaintiffs do not, nor do any of them, have any estate or interest in or lien or encumbrance upon the land described in the complaint and that the title to said lands be quieted in the defendant.

The plaintiffs have appealed from the judgment and demand a trial anew in this court. The answer of the defendant asserting title in himself and asking for affirmative judgment was a counterclaim. Power v. Bowdle, 3 N.D. 107, 54 N.W. 404, 21 L.R.A. 328, 44 Am.St.Rep. 511; Betts v. Signor, 7 N.D. 399, 75 N.W. 781; Goss v. Herman, 20 N.D. 295, 127 N.W. 78.

NDRC 1943, Section 32-1710 provides:

'A defendant interposing a counterclaim for purposes of trial shall be deemed plaintiff, and the plaintiff and codefendants against whom relief is sought shall be deemed defendants as to him.'

Hence, when a defendant in an action to determine adverse claims interposes a counterclaim asserting title in himself and asking for affirmative judgment the court must determine and adjudicate the claims set forth in defendant's counterclaim even though plaintiffs' cause of action may fail. Reichelt v. Perry, 15 S.D. 601, 91 N.W. 459; Spencer v. Beiseker, 15 N.D. 140, 107 N.W. 189; Goss v. Herman, supra.

The first question, therefore, that presents itself for determination on this appeal is whether the evidence establishes the existence of the contract under which the defendant claims that he is the owner of the lands involved in this action.

In his effort to establish said counterclaim defendant introduced a considerable portion of the testimony contained in the record in support of defendant's exhibit '1', which is one page of a small memorandum book in words and figures as follows:

'When i leave here Harve can have every thing i have when my dets are paid written June 4 1839 by Roy hufford for John C. Jester'

It is conceded that such writing, other than the purported signature, 'John C. Jester', is not that of the decedent. Defendant and other witnesses were unable to explain its origin or the identity of the person who wrote it. It cannot purport to be the last will of John C. Jester. Neither can it be construed to be a contract to make a will inasmuch as defendant did not know of its existence until some months subsequent to the death of his brother.

As proof of the performance on his part of the terms of the alleged verbal contract, defendant offered testimony of himself and three other witnesses. Mrs. Jesse Jester, a sister-in-law testified that defendant was looking after the property of John C. Jester while he was ill and he was at her home. That she knew that John C. Jester and defendant came up to North Dakota to look after the property. And again on direct examination by Mr. Joseph,

'Q. Mrs. Jester, tell what John C. Jester said about what he wanted to do with his estate at the time of his decease, using his language as near as you can remember? A. Well, we talked about it several times and he would always say and he always said to me, 'I am going to stay here with you and when I am gone I intend for Harvey to have what I have left in pay for looking after my affairs and taking care of my debts when I leave here',--it might not be just exactly the words.'

L. E. Calahan, banker at Munich, North Dakota, testified that in 1941 John C. Jester directed him to open a joint account in the bank in the names of J. C. and Harvey Jester. That all checks drawn upon said joint account were to be signed by defendant as follows: 'J. C. and Harvey Jester'. Mr. Calahan also testified that he had visited the farm subsequently and that both John C. Jester and defendant were there living together and that, in his opinion, Harvey Jester was looking after the land.

Jesse Jester, a brother of defendant, testified on direct examination by Mr. Kehoe:

'Q. Jesse, do you know who looked after and helped John C. Jester, the deceased, when he was living down at Arcadia, say after 1914 and '15 up to the time he went to your home? A. It must have been Harvey, there was nobody else.

'Q. Do you know whether he did or not? A. I rather think he did.

'Q. Did you go to visit him? A. Yes, I visited every month or so.

'Q. And Harvey was looking after and caring for him? A. Yes.' Cross examination by Mr. Duffy:

'Q. Who was looking after Harvey? A. John, I suppose.'

In defendant's own testimony upon direct examination by Mr. Kehoe he was asked:

'Q. Who looked after the farming of the land since 1914? A. I looked after the business end of it.'

However, when he was being questioned by the trial judge about the purchase, in 1918, of an 80 acre tract of the land he testified as follows:

'Q. * * * why did you put in in your brother's name? A. I was in the east that-a-way and I was not doing any business up here that-a-way and all the stuff was in my brother's name and father was living and I had to stay there while he lived.'

The plaintiffs, in rebuttal, called as witnesses a father and son who had farmed the whole of the land from 1926 until the time of the death of John C. Jester. They both testified that they rented the land from John C. Jester and that all settlements were made with him. That during the last year or so before his death when John C. Jester was unable to come to North Dakota the checks were made payable to him, but were...