Jones v. State

• Decision Date: 02 October 1962
• Docket Number: No. 9053,9053
• Citation: 85 Idaho 135,3 A.L.R.3d 1158,376 P.2d 361
• Parties: , 3 A.L.R.3d 1158 Marietta JONES, Kenneth Jones, and Stanley John Jones, minor children, by and through Philip E. Dolan, court appointed quardian of the Estates of Marietta Jones, Kenneth Jones, and Stanley John Jones, minors, Plaintiffs-Appellants, v. STATE of Idaho, Dan DeShon and Teresa DeShon, husband and wife, W. A. Nieman and Maybelle Nieman, husband and wife, Glenn Bandelin and Dora Bandelin, husband and wife, Fred Schedler and Iris Schedler, husband and wife, Malcom P. McKinnon and Margaret McKinnon, husband and wife, Fred Kennedy and Lotta Kennedy, husband and wife, Marjorie Payne, Kenneth Carey, Vernon Carey, James W. Carey, G. F. McClelland and Irene McClelland, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 361

376 P.2d 361

85 Idaho 135, 3 A.L.R.3d 1158

Marietta JONES, Kenneth Jones, and Stanley John Jones, minor children, by and through Philip E. Dolan, court appointed quardian of the Estates of Marietta Jones, Kenneth Jones, and Stanley John Jones, minors, Plaintiffs-Appellants, v.STATE of Idaho, Dan DeShon and Teresa DeShon, husband and wife, W. A. Nieman and Maybelle Nieman, husband and wife, Glenn Bandelin and Dora Bandelin, husband and wife, Fred Schedler and Iris Schedler, husband and wife, Malcom P. McKinnon and Margaret McKinnon, husband and wife, Fred Kennedy and Lotta Kennedy, husband and wife, Marjorie Payne, Kenneth Carey, Vernon Carey, James W. Carey, G. F. McClelland and Irene McClelland, husband and wife, Defendants-Respondents.

No. 9053.

Supreme Court of Idaho.

Oct. 2, 1962.

Rehearing Denied Dec. 4, 1962.

Stephen Bistline, Sandpoint, for appellants.

Frank L. Benson, Atty. Gen., Andrew Harrington, Chief Legal Counsel, Dept. of Highways, Boise, for the State.

Glen Bandelin, Bandelin & Cogswell, Sandpoint, Richards, Haga & Eberle, Boise, for other respondents.

TAYLOR, Justice.

Plaintiffs(appellants)Marietta Jones, Kenneth Jones, and Stanley John Jones, are the children of Jack Jones and Veneta Jones.Philip E. Dolan is the duly appointed guardian of the estates of said children.At the times involved, all the children were minors.This action was commenced September 18, 1959, for the purpose of quieting title in the minors to two parcels of real property in Bonner county.The defendants(respondents) are the present owners, or claimants, of the property.

In January, 1947, an action for divorce was commenced by Jack Jones against Veneta Jones, in which Veneta Jones filed a cross-complaint seeking a divorce from the plaintiff.Each sought a divorce on the ground of cruelty; each asked custody of the children, and an award of the community property, consisting of the two parcels of real estate here involved.Pursuant to stipulation of the parties, the plaintiff, Jack Jones, later defaulted and his complaint was dismissed.The cause was tried on the cross-complaint of Veneta Jones and decree of divorce was entered May 19, 1947.

The interest of the parties in one of the parcels of land consisted of an equity acquired by them pursuant to a contract of purchase executed in May, 1946, upon which the Jones made a down payment of $2,000 and undertook to pay the balance by means of monthly payments of $40 each.Payments were to be made to the bank, where the contract and deed were placed in escrow.This parcel is hereinafter referred to as the Gregory tract.

The other parcel was a residence lot in Sandpoint owned by the Jones in fee, and is hereinafter referred to as the McGhee tract.

By the divorce decree both of these properties were 'awarded to defendant and cross-complainant, Veneta Jones, to be held in trust for the benefit of the three minor children of said marriage, to-wit: Marietta Jones, Kenneth Edwin Jones, and Stanley John Jones.'With respect to each of the properties the decree also contained the following provision:

'That in the event of an offer for purchase for said property, before a sale is made, the Court is to be advised concerning same and the Court shall determine the terms and conditions upon which said property is to be sold, and before the same shall be final shall approve the sale of said property, and the defendant and cross-complainantVeneta Jones, shall comply with all orders that the Court may make in reference to the sale or contract of sale of said real estate, also as to the disposition of the proceeds of said sale.'

During the pendency of the divorce action the plaintiff, Jack Jones, then 58 or 59 years of age, was suffering heart ailments, for which he was hospitalized on three or four occasions.The defendant, Veneta Jones, suffered an emotional upset and hearing was had February 26, 1947, before the probate court as to her mental condition.Pursuant to the testimony of the doctors present, the court found that Veneta Jones'was not an insane person, but was emotionally unstable and it was therefore dangerous for the said children, whereupon the said Veneta Jones, mother of the said minor children, and Jack Jones, father of said children signed a temporary surrender and release for said children to be sent to the Lewiston Home Finding and Aid Society at Lewiston, Idaho.'On the same day the children were committed to the Childrens Home Finding and Aid Society at Lewiston for a period of six months.In early November, 1947, the children were transferred by order of the probate court from the Lewiston home to the care of Mr. and Mrs. J. R. Boardman in Wasco, California.Their present custody and whereabouts do not appear from the record.

The divorce decree also contained a provision requiring the father to pay to the defendant $60 per month 'until said children attain their majority, and that said sums of money be paid to the Clerk of this Court.'Presumably these payments were intended to be for the support of the children.Under date of October 15, 1947, the district judge made and entered the following order in the divorce case:

'It appearing to the Court that some of the property described in the decree in the above entitled case is about to be sold and it further appearing to the Court that the interest of the minor children, to-wit: Marietta Jones, Kenneth Edwin Jones and Stanley John Jones, should be protected and that any monies due or to become due under any contract of sale or for the sale of any property should be deposited in trust for the use and benefit of said children; and it appearing further to the Court that Veneta Jones, at the present time, is not the proper person to act as trustee for said children, now therefore, it is,

'Ordered, that Tom Jones, brother of the defendant, in said action be and is hereby appointed trustee of all funds in trust for the use and benefit of said children and that all monies deposited with the escrow holder shall be deposited to the credit of Tom Jones, trustee, for the use and benefit of Marietta Jones, Kenneth Edwin Jones and Stanley John Jones, and it is,

'Further Ordered, that any disbursements from said fund by said trustee shall be subject to the approval of the Court.'

The residence on the Gregory tract was occupied by one Louie Adams and his family from the fall of 1946 to the fall of 1947, except for a time in the spring of 1947 when they were excluded therefrom by high water.Adams said he was paying a rental of $60 or $65 per month; that, as directed by Mrs. Jones, he made his payments at the bank where the escrow was held; and that he moved out when informed that the property had been sold.He also stated he had offered Mrs. Jones $7000 for the property, thinking he'might go a little higher, perhaps up to $8000; and that Mrs. Jones informed him the property would have to bring $9000,' and 'that it had become the property of her children in trust.'

Under date of November 20, 1947, a contract was entered into for the sale of the Gregory tract by Gregory and wife to George Rickard and wife for the purchase price of $6250.The contract contains the following:

'It is further understood and agreed that a contract of sale of the above described real estate was entered into on May 8, 1946 between George Gregory and Genevieve Gregory, his wife, and Jack Jones and Veneta Jones, his wife, under certain terms and conditions.

'It is further understood that the District Court of the Eighth Judicial District of the State of Idaho, in and for the County of Bonner, State of Idaho, on May 19, 1947 issued to Veneta Jones an absolute decree of divorce from Jack Jones, and further ordered, adjudged and decreed that the equity in contract on above real estate was awarded to Veneta Jones, and said property to be held in trust for the minor children of said Jack Jones and Veneta Jones.

'It is further understood that the above District Court on October 15, 1947 appointed Tom Jones as Trustee of all funds of the above children.

'It is further understood that the said Veneta Jones did not pay either principal or interest or taxes on the above contract after January 1, 1947.That on October 1, 1947, the parties of the first part, George Gregory and Genevieve Gregory, his wife, declared the contract void and repossessed the property according to the terms of the contract.

'It is further agreed by George Gregory and Genevieve Gregory, his wife, to pay to Tom Jones as guardian of the minor children of Jack and Veneta Jones the net balance left out of the proceeds of this sale after all claims and liens against the above property are paid.

'It is further understood that this sale is subject to the approval of Judge E. V. Boughton of the District Court of the Eighth Judicial District of the State of Idaho, in and for the County of Bonner.

'Approved by: /s/ E. V. Boughton,

District Judge.'

The real estate agency rendered the following statement covering disbursal of the purchase price.

"Expenses--
                 "Taxes                       $  81.53
                 "Abstracting                    38.00
                 "Tom Jones, note               313.00
                 "Bonner County National
                   Bank                         183.15
                 "Findlay Real Estate
                   Commission                   300.00
                 "Additional abstracting and
                   filing                        24.32
                 "George Gregory, Bal
                   and interest                4810.00
                                              --------
                 "Total expenses              $5750.00
                 "Balance left for minor
                   children                     500.00
                                              --------
                                              $6250.00  "
                

By warranty deed dated January 22, 1948, the Gregory tract was conveyed by Gregory and wife to Rickard and wife.On the same date, January 22, 1948, it was conveyed by Rickard and wife to Robert Niemann and wife.Other deeds and instruments of record show conveyances of various portions of the tract to other defendants.

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