Krager v. Waage, 9586
| Decision Date | 09 November 1956 |
| Docket Number | No. 9586,9586 |
| Citation | 76 S.D. 395,79 N.W.2d 286 |
| Parties | Harvey KRAGER, Administrator of the Joint Estates of Peter Krager and Mabel Krager, Deceased, Plaintiff and Respondent, v. Mabel WAAGE, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Dana, Golden, Moore & Rasmussen, Sioux Falls, for plaintiff and respondent.
Everett A. Bogue, Vermillion, for defendant and appellant.
John Carl Mundt, Sioux Falls, for Kenneth Krager, son of Robert Krager, deceased.
Plaintiff, the administrator of the estate of Peter Krager, deceased, brought this action wherein it is sought to have a trust declared in certain property, the record title to which is in the name of the defendant, Mabel Waage. The court held the trust was established and by its judgment ordered defendant to convey the property to the plaintiff. Defendant has appealed.
The deceased, Peter Krager, was an old-time resident of Turner County. He lived with his wife on the farm, title to which is here in dispute, for many years. He had a family of six living children including the defendant, all of whom were raised on this farm. The farm was encumbered with the mortgage to the Federal Land Bank and during the difficult times of the 1930's, Mr. Krager was unable to meet the payments due under the terms of this mortgage. The mortgage was not foreclosed but about the year 1941 Peter Krager executed a deed to the Land Bank. However, Mr. Krager continued to reside on the farm. All of the children with the possible exception of the youngest girl were grown and had left the farm but lived either within the same vicinity or near-by counties. Peter Krager was anxious to retain this farm as his home even after deeding it to the Land Bank but discovered that he could not repurchase the farm either because of some rule of the Land Bank or because of his age and financial condition. It was permissible and possible, however, for one of his children to buy this farm from the Land Bank if the bank's conditions could be met. Mabel Waage is a daughter of Peter Krager. After some negotiations Mabel Waage signed a contract of purchase with the Federal Land Bank whereby she agreed to purchase this farm for $6,000 under installment payments. Mabel's husband, Tom Waage, signed the contract guaranteeing its performance. The Land Bank also required that the farm be rented to some one other than Peter Krager and a son Harvey Krager, this plaintiff, signed a rental agreement for a period of one year. These transactions all transpired in January and February of 1942. It appears that Peter Krager had sold his automobile and $500 of this money was used for the original payment under the contract which the Waages had signed. There was another $200 payment due under this contract in the fall which the Waages paid but which shortly thereafter Peter Krager repaid to the Waages. Peter Krager and his wife continued to live in this farm home as they had for many years past. Apparently farming conditions got better in Turner County following the execution of this contract and Peter Krager paid from the proceeds of the farm all of the payments due the Land Bank under the Waage contract, he paid the taxes and insurance and all other expense in connection with the farm. In addition to paying the payments required by the contract Peter Krager made two additional payments of $500 each. In 1948 payments made on the contract were in an amount sufficient so that the Federal Land Bank deeded the permises to Mabel Waage and in turn the Waages gave a mortgage on the land to the bank in the sum of $4,600 payable in installments. Peter Krager died in 1952 and up until that time he had made all of the payments of the installments due on the mortgage. Following the death of Peter Krager the Waages took over the operation of the farm and established a separate account in the bank for the proceeds therefrom which was carried during the lifetime of Peter Krager's widow. After the death of the widow and after this action was commenced the special account was no longer continued by the Waages and the monies therein were transferred to their personal account.
The trial court found the facts to be as follows: We quote Finding II which appears to us to be the pivotal facts as found by the trial court, and the finding upon which the trial court's decision must find its support. This finding is, 'That on or about the 5th day of March, 1942, Peter Krager entered into an agreement with the Federal Land Bank of Omaha, Nebraska, to purchase (the land here in dispute), and that under said contract, legal title to the above described premises was to be taken in the name of Mabel Waage, a daughter of Peter Krager, with the understanding that Peter Krager was the owner of said premises.'
The court then found that the $500 original payment on the contract was made by Peter Krager, that the land was deeded to Mabel Waage in 1948, but that this deed did not later the intention of the parties concerning the ownership of the land. Other findings are to the effect that Peter Krager occupied the land until his death, made all the payments due under the contract and mortgage, and that Mabel Waage never asserted ownership prior to the death of her parents.
We revert to Finding II for the purpose of determining whether it finds support in the record.
There is no attempt here to change the relationship between the Federal Land Bank and Mabel Waage as expressed by the written contract, the only purpose in this action is to determine as between Mabel Waage and the administrator of the Peter Krager estate whether the beneficial interest in this land vested in Peter Krager. If it did, it would be by virtue of a trust by operation of law which is specifically excepted from the provisions of SDC 59.0303, relating to a writing being essential to the creation of a trust in real property.
The evidence discloses that when negotiations were in process between Peter Krager and the...
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