Johnson v. Tomlinson

• Decision Date: 25 April 1968
• Docket Number: No. 8463,8463
• Citation: 160 N.W.2d 49
• Parties: Olga S. JOHNSON, Plaintiff and Respondent, v. Doris M. TOMLINSON, Fern K. Fresonke, Dorothy C. Herberholz, Herman P. Johnson, and Arnold O. Lona, Individually and as Administrator of the Estate of Peter O. Johnson, Deceased, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 49

160 N.W.2d 49

29 A.L.R.3d 155

Olga S. JOHNSON, Plaintiff and Respondent, v.Doris M. TOMLINSON, Fern K. Fresonke, Dorothy C. HerberholzHerman P. Johnson, and Arnold O. Lona, Individually and as Administrator of the Estate of Peter O. Johnson, DeceasedDefendants and Appellants.

Civ. No. 8463.

Supreme Court of North Dakota.

April 25, 1968.

Rehearing Denied July 22, 1968.

Syllabus by the Court

1.Where a trial de novo is demanded, on appeal from the judgment, in an action tried to the court without a jury the appellate court must find the facts for itself independent of the trial court's findings.In such case, however, the findings of the trial court will be given appreciable weight.

2.Where an action is brought to set aside a family settlement agreement on the ground of fraud and undue influence the subject-matter is the contract and the primary relief sought is to set it aside.The action is in personam and properly triable in the county where one of the defendants resides although it may incidentally involve rights in real property.

3.When free from fraud and misrepresentation and creditors are not involved family agreements in settlement of estates are favored and will be enforced by the courts regardless of whether the settlement follows the law of descent and distribution.

4.As a general rule actual fraud cannot be presumed but must be proved affirmatively by the one who relies on it.

5.To constitute actionable fraud the representations must be false and fraudulent and must be relied upon by the party asserting fraud.

6.To establish undue influence, three indispensable factors are involved: a person who can be influenced; the fact that improper influence was exerted; and, submission to the overmastering effect of such unlawful conduct.

7.For reasons stated in the opinion it is held the plaintiff has failed to sustain the burden to establish fraud, undue influence, or duress.

R. J. Bloedau, Mott, for appellants.

Tenneson, Serkland, Lundberg & Erickson, Fargo, for respondent.

TEIGEN, Chief Justice.

The defendants have appealed from a judgment setting aside a family settlement agreement.The action was tried to the court without a jury and a trial de novo is demanded on appeal.

The plaintiff, widow of the deceased Peter O. Johnson, seeks to set aside a family settlement agreement executed between herself and the four children of the deceased by a prior marriage.She alleges that her consent to said agreement was procured through fraud, undue influence, and duress.She also named Arnold O. Lona, administrator of the estate of Peter O. Johnson, as a defendant.The trial court found the family settlement agreement had been procured through fraud and undue influence and set the agreement aside.

The plaintiff, Olga Johnson, and Peter O. Johnson were married September 26, 1958.Both had been previously married and each had children, by a former marriage, all of whom were adults and self-supporting at the time of this marriage.The plaintiff was 65 years of age and Mr. Johnson was 74 years of age at the time of the marriage, and it appeared both were in reasonably good health at the time of said marriage.Peter O. Johnson died intestate on June 18, 1965.After the appointment of the defendant Lona, as administrator, the plaintiff and the four adult children of Peter O. Johnson, entered into a family settlement agreement whereby they agreed that the residue of the estate, including all properties held in joint tenancy, be divided equally one-fifth to each.The value of these properties, according to the inventory, is over $240,000.

The case is before us for trial de novo.Where a trial de novo is demanded on appeal from the judgment in an action tried to the court without a jury, the appellate court must review the evidence and find the facts for itself, independent of the trial court's finding.In so doing, the findings of the trial court will be given appreciable weight.Burwick v. Saetz, (N.D.)154 N.W.2d 679;Spielman v. Weber, (N.D.)118 N.W.2d 727;Gust v. Wilson, 79 N.D. 865, 60 N.W.2d 202, 38 A.L.R.2d 1371.

However, the principle that the appellate court must give appreciable weight to the findings of the trial court will not be used by the appellate court to escape its responsibility in performing its lawful duty of trying anew the facts in the entire case.Thus, although the findings of the trial court are entitled to appreciable weight, it is the duty of the appellate court to review and analyze the evidence and to render a decision based upon the evidence in the case as found by the appellate court.Burwick v. Saetz, supra;Hendricks v. Porter, (N.D.)110 N.W.2d 421.

JURISDICTION

The defendants, in their answer, allege that the trial court has no jurisdiction of the subject-matter for the reason that the action was not brought in Hettinger County where the deceased's real estate is located.It appears the deceased's home was at New England in Hettinger County, and was inventoried in his estate at $8,000.The rest of his estate consists of personal property.The action was commenced in Cass County.In addition to seeking a dismissal of the action by its answer the defendants also moved for a change of venue from the Cass County District Court to the District Court of Hettinger County, but prayed in the alternative that venue be changed to Stark County where one of the defendants resides.All of the other defendants reside outside the State of North Dakota.The trial court of Cass County ordered a change of venue from Cass County to Stark County where the defendants renewed their motion to have venue changed to Hettinger County.This motion was denied and the case was tried in the Stark County District Court.

The defendants cite Section 28-04-01, N.D.C.C., which provides:

'An action for any one of the following causes must be brought in the county in which the subject matter of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial upon agreement of counsel or in other cases provided by statute:

1.For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest;

* * *'

They argue that the action is an attempt to set aside the family settlement agreement and in this respect is very similar to an action to set aside a fraudulent conveyance; that the action attempts to determine whether plaintiff is the owner of one-fifth or one-half interest in certain real estate; that although the family settlement agreement does not describe the real property, nevertheless, the outcome of the action has a direct bearing on the plaintiff's rights or interests therein; and, that the above quoted statute makes it mandatory that the action be brought in the county where the subject matter of the action, 'or some part thereof,' is situated.Therefore, they argue that the action must be brought in Hettinger County, where the real property is situated.

The plaintiff argues that the action acts only against the defendants personally and in no way affects the land; that the deceased's record title to the real property is the same before as it will be after the cancellation of the agreement; that the action is transitory; and, that the judgment to be entered is in personam and not in rem and will only incidentally, and not directly, affect the title to real property.

We find that the sole purpose and object of the action is to cancel and set aside a family settlement agreement due to alleged fraud and undue influence.It is an action in personam, transitory in nature, and therefore properly triable in Stark County, where one of the defendants resides; that the judgment entered in the action will, at most, operate indirectly on the real property situated in Hettinger County.The family settlement agreement constitutes a contract between the parties.It is an instrument by which the parties contract that the residue of the estate shall be divided in a manner other than that provided by the law of succession.Such an agreement is recognized and authorized by statute in this state.Section 30--21--20, N.D.C.C.Since the action is brought to set aside the family settlement agreement, which is a contract, it is one in personam rather than in rem, and is properly triable in the county in which one of the several defendants resides.An action on a contract is, in its nature, transitory and not necessarily local where real property or an estate or interest in real property is only incidentally and not directly affected.12 C.J.S., Cancellation of Instruments§ 50, p. 1022;13 Am.Jur.2d, Cancellation of Instruments, Sec. 53;56 Am.Jur.Venue, Secs. 20 & 21, p. 23;and, 92 C.J.S.Venue, § 30(a).

This court held in Hinsey v. Alcox, 38 N.D. 52, 164 N.W. 296, that an action against the principal and sureties, on an attachment bond for damage to real estate as a result of an alleged wrongful levy upon personal property contained within a building, was an action on the attachment bond and not one for injury to realty and therefore it was proper to grant the change of place of trial to the county where the defendants have their domicile.The court reasoned that the main element of damages was a seizing and levying upon the plaintiff's stock of merchandise, hardware and farm implements and the closing of the plaintiff's business, and, therefore, the statute(before amendment) requiring that all actions, 'for injuries to real property', must be tried in the county in which the subject of the action or some part thereof was situated, was not applicable.

In Adams v. Little Missouri Minerals Association, (N.D.)143 N.W.2d 659--684, we said the statute in question does not apply to an action for specific performance or recission of an agreement to reconvey mineral interests.In Cavalier County v. Gestson, 75 N.D. 657, 31 N.W.2d 787, 2 A.L.R.2d 1254, this court quoted with approval...