Nelson v. Thompson

• Decision Date: 12 June 1907
• Court: North Dakota Supreme Court

112 N.W. 1058

16 N.D. 295

TORBER NELSON, GAYVE THOMPSON, TORRA SOLUM, CHARLES KITTLESON AND THONE SALEMONSON v. JULIA THOMPSON AND F. R. FULTON

Supreme Court of North Dakota

June 12, 1907

Appeal from District Court, Grand Forks county; Fisk, J.

Action by Torber Nelson and others against Julia Thompson. From a judgment for plaintiffs, defendant appeals.

Reversed and judgment ordered for defendant.

Decision of the lower court reversed, and judgment entered in favor of the defendant, Julia Thompson, quieting title in her as to an undivided one-half of the land in suit.

Skulason & Skulason and Frank B. Feetham, for appellant.

One who knowingly, though passively, suffers another to purchase and expend money on land, without disclosing his claim, cannot exercise his legal right against such person. Kirk v Hamilton, 102 U.S. 68, 26 L.Ed. 79; Town v Needham, 25 Am. Dec. 246; Starrs v. Barker, 10 Am. Dec. 316; Brown v. Bowen, 30 N.Y. 519; Brown v. Bowen, 86 Am. Dec. 406; Anderson v. Hubbell, 47 A. R. 394; Fletcher v. Holmes, 25 Ind. 458; Blair v. Wail, 69 N.Y. 113.

Plaintiff's action is barred by statute of limitations. Rev. Codes 1899, sections 5207, 5211, 5212; Houts v. Hoyne, 84 N.W. 773; Pollock et al. v. Wright et al., 87 N.W. 584; Wood on Limitations, chapter 6; White v. Sheldon, 4 Nev. 280; Pilcher v. Flinn, 30 Ind. 202.

Where statute of limitations bars the ancestor, it bars the heirs. Wood on Limitation, 9; Uptegrove v. Blum, 10 A. 787.

Statute of limitations run against insane persons, unless it specifically exempts them. Wood on Limitations, 571; 19 Enc. of Law, 212, 237, 240; Northrop v. Marquam, 18 P. 449; Dunham v. Sage, 52 N.Y. 229; Acker v. Acker, 81 N.Y. 145; McNeil v. Sigler, 64 N.W. 604.

R. M. Carothers and Guy C. H. Corliss, for respondent.

A person without mental capacity cannot contract. Jackson v. King, 4 Cow. 207; Dennett v. Dennett, 44 N.H. 531; Concord v. Rumney, 45 N.H. 423; Hovey v. Chase, 52 Me. 304, 83 Am. Dec. 514; Sawyer v. White, 122 F. 223; Edwards v. Davenport, 20 F. 756; Ring v. Lawless, 60 N.E. 881; 16 Am. & Eng. Enc. Law, 1624, 1725.

If the mind does not know what it is doing, it is immaterial what caused the condition or what mentality there is for other purposes. German S. & L. Soc. v. De Lashmut, 67 F. 399; Delafield v. Parish, 25 N.Y. 9; Rogers v. Blackwell, 49 Mich. 912, 13 N.W. 512; Van Deusen v. Sweet, 51 N.Y. 378; Griswold v. Butler, 3 Conn. 227; Elder v. Schumacher, 33 P. 175; Corbit v. Smith, 7 Iowa 60; Dexter v. Hall, 15 Wall. 9, 21 L.Ed. 73; Johnson v. Harmon, 94 U.S. 371, 24 L.Ed. 271; Plaster v. Rigney, 97 F. 12; Dougherty v. Powe, 30 So. 524; 13 Cyc. 573.

Where the transaction is not a business one, and no real value is received by the lunatic, the deed is absolutely void. Elliott v. Ince, 7 De. G. M. G. 475, 44 Eng. R. Rep. 186; Wooley v. Gaines, 39 S.E. 892; Riley v. Carter, 25 A. 667; Evans v. Horan, 52 Md. 610; Baldwin v. Smyth, 1 Ch. 588; Brigham v. Fayerweather, 144 Mass. 48; 2 Pom. Eq. Jur. 946; Fay v. Burdett, 81 Ind. 433; Lincoln v. Buckmaster, 32 Vt. 652; Halley v. Troester, 72 Mo. 73; Eaton v. Eaton, 8 Am. Rep. 716; Crawford v. Scovell, 94 Pa. 48, 39 Am. Rep. 766; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Hanley v. Nat. L. & I. Co., 29 S.E. 1002.

Where there is a consideration and the grantee is innocent, grantor need not restore. Seaver v. Phelps, 11 Pick. 305; Gibson v. Soper, 6 Gray, 279; Hovey v. Hobson, 89 Am. Dec. 708; Crawford v. Scoville, 94 Pa. 48; Chew v. Bank, 14 Md. 318.

Grantor has until recovery of his reason to disaffirm. Boynton v. Reese, 37 S.E. 437; Spicer v. Holbrook, 66 S.W. 180; Downham v. Halloway, 64 N.E. 82; Hull v. Louth, 10 N.E. 270; Boynton v. Reese, 37 S.E. 437.

After grantor's death right is in the heirs. Robers v. Blackwell, 49 Mich. 192; French Lumbering Co. v. Theriault, 83 N.W. 927; Hunt v. Rabitoay, 84 N.W. 59; Burm v. Postell, 33 S.E. 707; 9 Enc. Law, 119, 120.

Nothing being paid, heirs could evince disaffirmance by bringing suit. Gibson v. Soper, 6 Gray, 279, 280; Hull v. Louth, supra; Valpey v. Rea, 130 Mass. 384; Brigham v. Fayerweather, 144 Mass. 48; Elder v. Schumacher, 33 P. 175; Burnham v. Mittchell, 34 Wis. 117; Crawford v. Scoville, 94 Pa. 48; Phillips v. Gorham, 17 N.Y. 270; Eaton v. Eaton, 37 N.J.L. 108; Brown v. Freed, 43 Ind. 253; Folsom v. Garner, 15 Mo. 494; Bensell v. Chancellor, 5 Whart. 371; Dexter v. Hall, supra.

Heirs cannot rescind before ancestor's death. Kilbie v. Myrick, 12 Fla. 419; McMillan v. Deering Co., 38 N.E. 398; Baldwin v. Golde, 34 N.Y.S. 587; Brigham v. Fayerweather, supra; Riley v. Carter, 25 A. 667, 669.

Where grantor cannot disaffirm, the law will for him. Spicer v. Holbrook, 66 S.W. 180; Brigham v. Fayerweather, supra; Rogers v Blackwell, 49 Mich. 192.

A cloud on title is a continuing wrong and never outlaws: Cameron v. Lewis, 59 Miss. 134; Mut. Life Ins. Co. v. Corely, 7 N.Y.S. 939; Quinn v. Kellogg, 35 P. 49; Minor v. Beekman, 50 N.Y. 337; Rockwell v. Servant, 54 Ill. 251.

Deed of an insane person is void even against a bona fide purchaser. German S. & L. Soc. v. De Lashmer, 67 F. 399; Rogers v. Blackwell, 49 Mich. 192, 194; Somers v. Pumphrey, 24 Ind. 238; More v. Abernethy, 7 Blackf. 442; Gates v. Carpenter, 43 Iowa 152; Hovey v. Hobson, 89 Am. Dec. 705; Dewey v. Allgire, 40 Am. St. Rep. 468; Valentine v. Richardt, 3 N.Y.S. 906; Hull v. South, 10 N.E. 270, 15 N.Y.S. 275; Mustard v. Wohlford, 15 Grat. 329, 340 (S. C.); 76 Am. Dec. 209, 213; Harrod v. Meyers, 21 Ark. 592, 76 Am. Dec. 409; Brantley v. Wolff, 60 Miss. 420; McMorris v. Webb. 17 S.C. 558, 43 Am. Rep. 629; Jenkins v. Jenkins, 12 Iowa 195, 200; Miles v. Lingerman, 24 Ind. 385; Sims v. Smith, 86 Ind. 577; Buchanan v. Hubbard, 96 Ind. 1; Howard v. Simpkins, 70 Ga. 322; Hill v. Anderson, 5 Sm. & M. 216.

No tender being required, cancellation can be done by suit. Ludington v. Patton, 86 N.W. 571; Vial v. Reynolds, 23 N.E. 301; Berry v. A. C. Ins. Co., 30 N.E. 254; Allerton v. Allerton, 50 N.Y. 670; Gould v. Bank, 86 N.Y. 75; Taylor v. Nat. Bank, 62 N.W. 99; Knappen v. Freeman, 50 N.W. 533; Thrackrah v. Haas, 119 U.S. 499, 30 L.Ed. 486; O'Dell v. Burnham, 21 N.W. 635; Maloy v. Berkin, 27 P. 442; Thomas v. Beales, 27 N.E. 1004; Kley v. Healy, 28 N.E. 593.

One defeated in ejectment suit, cannot afterward sue on a different title held at its commencement. Fayerweather v. Ritch, 195 U.S. 276; United States v. Cal. & O. Land Co., 192 U.S. 355; Hoseason v. Keegen, 59 N.E. 627; Wildman v. Wildman, 41 A. 1; Breeze v. Haley, 18 P. 551; Wolverton v. Baker, 33 P. 131; Donnell v. Wright, 49 S.W. 874; Bassett v. Conn. R. Co., 22 N.E. 890; Foster v. Hinson, 39 N.W. 682; Werlin v. New Orleans, 177 U.S. 390; Lamb v. McConkey, 40 N.W. 77; Springer v. Darlington, 64 N.E. 709; Kurtz v. Carr, 5 N.E. 692; Patterson v. Wold, 33 F. 793.

A judgment does not bar a title acquired after the action in which it was rendered was begun. 24 Am. & Eng. Enc. Law, 776, 777; People v. Holladay, 27 Am. St. 186; Valentine v. Mahoney, 37 Cal. 389; Bedford, etc., Co. v. Oman, 134 F. 64; Teigen v. Drake, 101 N.W. 893; McLane v. Bovee, 35 Wis. 2734; Murray v. Green, 28 P. 61; Mitchell v. French, 100 Ind. 334; Morrison v. Beckey, 6 Watts, 349; 1 Van Fleet Former Adjudication, p. 374; State v. McEldowney, 47 S.E. 650; Headley v. Leavitt, 55 A. 731; Mershon v. Williams, 44 A. 211; Union Term. Co. v. Wilmar & S. F. Ry. Co., 90 N.W. 92; People's Bank v. Hodgdon, 27 P. 938.

POLLOCK, District Judge. SPALDING, J., concurs. FISK, J., took no part in this decision; HON. CHAS. A. POLLOCK, Judge of the Third judicial district, sitting in his stead. MORGAN, J. (dissenting).

OPINION

POLLOCK, District Judge.

This action was instituted under the statute to quiet title of the plaintiffs to the N.W. 1/4 of section 17, tp. 149 N., range 49 W., of the Fifth P. M. The action was tried by the court, and an appeal taken under section 7229, Rev. Codes 1905, and is before this court for a trial de novo.

Certain facts are undisputed. It is conceded that one Kittel Olson was, prior to the 19th day of December 1887, the owner in fee of the land in question, and that he died on or about the 2d day of August, 1903, leaving surviving him as his sole heirs at law the five plaintiffs, all of whom, except Thone Salemonson, being children, and Thone Salemonson being at the time of Kittel Olson's death, the sole surviving child of Ole Kittelson, a deceased child of Kittel Olson. The title of the plaintiffs to the land is good as against Julia Thompson, unless an alleged deed claimed to have been executed by Kittle Olson in his lifetime to the son Ole Kittelson in his lifetime, is sustained. The defendant, Julia Thompson, in her answer, by way of counterclaim, sets up and relies on this deed, which is dated December 19, 1887, and claims that the grantee therein, Ole Kittelson, died in December, 1888, leaving him surviving as his sole heirs at law the plaintiff Thone Salemonson and Charles O. Myron, his two children, and that by succession each inherited from their father an undivided half interest in the real estate in question, and that the defendant, Julia Thompson, succeeded to the one-half interest of Charles O. Myron by virtue of an attachment of his interest in the land by Julia Thompson in a suit brought against the said Myron for damages for breach of promise of marriage, and through the sale of said interest by her under execution upon the judgment rendered in such action, upon which sale she herself purchased said interest, and through the final judgment of the Supreme Court judging void as against said Julia Thompson the transfer by Charles O. Myron of his undivided half interest in said land to his sister, the plaintiff Thone Salemonson, previous to the...