Lenker v. Musilek, 9334

• Decision Date: 25 June 1953
• Docket Number: No. 9334,9334
• Citation: 59 N.W.2d 417,75 S.D. 60
• Parties: LENKER v. MUSILEK et al.
• Court: South Dakota Supreme Court

Page 417

59 N.W.2d 417

75 S.D. 60

LENKER v. MUSILEK et al.

No. 9334.

Supreme Court of South Dakota.

June 25, 1953.

J. F. Frame, Burke, Harold Lund, Brookings, and Claude Maule, Winner, for plaintiff and respondent.

G. F. Johnson, Gregory, for defendants and appellants.

LEEDOM, Judge.

Plaintiff brought action to quiet title to a half interest in land against the defendant administrator and heirs whose decedent held full legal title at the time of his death. Plaintiff alleged, and tried his case on the theory, that he and decedent for several years prior to the latter's death had bought and sold land as partners sometimes taking in their joint names title to property acquired and sometimes taking title in the name of either singly; that the title to the land here involved had been acquired in decedent's name only and was in his name at the time of his death, but that plaintiff and decedent were equal owners both having paid their full shares of the purchase price at the time of decedent's death. The defendants admitted various joint purchases of real estate as alleged by plaintiff but claimed that during the period of such transactions decedent also dealt in lands solely for his own benefit and that the lands involved in the action had been purchased by decedent individually and that plaintiff had no interest whatever therein. Defendants filed a cross-complaint for an accounting. The parties stipulated that the land involved should be sold and the proceeds held in lieu of the land for the prevailing party. The trial court found that decedent had acquired the land for himself and plaintiff jointly, that plaintiff had settled in full with decedent for the half interest, and entered judgment that plaintiff have and recover one-half the money received from the sale. Defendants have appealed assigning as error insufficiency of the evidence to support the judgment. For the reasons hereinafter appearing we reverse the judgment.

Since respondent alleged payment of his full share of the purchase price and based his case on payment it was incumbent on respondent to prove payment. The judgment rests on a finding of such payment by respondent. If the evidence does not support such finding under the rules of evidence applicable then the judgment in favor of respondent is not warranted under this record. Whether or not the fiduciary relationship between plaintiff and the decedent as partners or coadventurers in the real estate business created a situation in which plaintiff might in a proper case be adjudicated owner of a half interest in the land without proving payment of his share of the purchase price, is a question not presented under this record, since as previously stated, the judgment entered is based on a finding of payment.

In such an action as this where the objective of the litigant is to establish an interest in land that is inconsistent with the record title, his proof must be stronger, more intense or of a higher degree than is required in ordinary litigation. In Sing You v. Wong Free Lee, 16 S.D. 383, 388, 92 N.W. 1073, 1075, this court said such proof must be clear, satisfactory and convincing. The rule is quite universal and has been reaffirmed by this court in numerous cases including the comparatively recent case of Scott v. Liechti, 70 S.D. 89, 94, 15 N.W.2d 1, 3.

Respondent's proof was directed toward (1) the establishment of an agreement between the parties that the land should be jointly acquired, and (2) to show payment of respondent's share of the price. It is not denied that decedent in the first instance paid the full price. The dispute as to payment relates to respondent's reimbursement of decedent for half the price. The proof as to the agreement and intention of the parties to buy and deal with the land as partnership property is much stronger than the proof as to payment. As to payment, respondent relies chiefly on a settlement made between the parties after the acquisition of this land and shortly before decedent's death; and the circuit court's findings as to payment might fairly be said to rest almost entirely on such settlement. The other proof consisted of testimony of witnesses who stated in varying and general language that they had heard decedent say that he and respondent had fully settled their affairs and that respondent owed decedent nothing. The court's finding of fact numbered (11) is the finding dealing most fully with the question of payment. In it the court definitely finds that the settlement mentioned covered the land involved in the action and therein finds payment by respondent to be evidenced in such settlement. As a conclusion of law designated (1) the court finds...