Nichols v. Schutte

• Decision Date: 09 April 1947
• Docket Number: No. 6930.,6930.
• Citation: 75 N.D. 207,26 N.W.2d 515
• Parties: NICHOLS v. SCHUTTE et al.
• Court: North Dakota Supreme Court

75 N.D. 207

26 N.W.2d 515

NICHOLS

v.SCHUTTE et al.

No. 6930.

Supreme Court of North Dakota.

Jan. 18, 1947.

On Rehearing April 9, 1947.

Appeal from District Court, Billings County; Miller, Judge.

Action to quiet title by N. D. Nichols against Mary F. Schutte and others and Billings County, a municipal corporation of the state of North Dakota. From an adverse judgment, the plaintiff appeals.

Judgment reversed and case remanded for further proceedings.

Syllabus by the Court.

1. Where on an appeal from the judgment entered in a case tried to the court without a jury, a trial de novo is demanded, the Supreme Court must ascertain the facts from the record before it, but, in making its determination, the findings of the trial court are entitled to appreciable weight.

2. A conveyance of the homestead of a married person or of any portion thereof must be executed and acknowledged by both husband and wife, otherwise it is void. Section 47-1805, N.D.R.C.1943.

3. A deed, the execution of which is procured through the fraud of the grantee is voidable and may be disaffirmed and voided by the grantor upon discovery of the fraud. One who takes from the fraudulent grantee with knowledge of the facts, stands in no better position than the latter.

4. In the instant case, a statutory action to quiet title, the record is examined and it is held, for reasons stated in the opinion, that the plaintiff is entitled to the relief demanded in his complaint on condition that he compensate the defendant in the amount that the value of the property involved had been enhanced by reason of the improvements placed upon it by the plaintiff's grantee, less the value of the use and occupation thereof from the time the fraudulent deed was disaffirmed and voided.

Sullivans, Fleck & Higgins, of Mandan, for appellant.

William W. Eichhorst, of Medora, State's Atty., of Billings County, and H. A. Mackoff, of Dickinson, for respondent.

NUESSLE, Judge.

This is a statutory action to quiet title to an unplatted tract of land comprising about 1.38 acres, part of the SE 1/4 NW 1/4 of Section 26, Township 140, Range 102, Billings County, North Dakota.

The defendant Billings County answered, denying any interest in or ownership on the part of the plaintiff of the property in question, alleging title thereto in itself and prayed judgment in its favor and for affirmative relief. The case was tried to the court and the defendant had judgment. Whereupon the plaintiff perfected this appeal, demanding a trial de novo in this court.

The record discloses the following facts: In 1911, plaintiff perfected title to the E 1/2 NW 1/4 of Section 26, Township 140, Range 82, as part of his government homestead. The tract here in question lies in the southwest corner of the above described eighty, adjacent to the title town of Medora. In 1924, and for some years prior thereto, there was a small old log cabin thereon. This cabin was then and for some time had been unoccupied but had been rented now and again theretofore. The last tenant paid a rental of $15 per month. The defendant Mary Schutte from her early girlhood had been and was an intimate friend of the plaintiff and his family. In fact, until she moved into the cabin she was virtually a member of the plaintiff's household. In 1924 she and another girl, plaintiff's niece, took up their residence in this cabin. In 1928 she married and thereafter until 1939 she and her husband continued to occupy the cabin as their home. From time to time she made improvements. She sided, painted, fixed the roof and otherwise repaired the cabin. She put a cement foundation under it and dug a cellar. She made substantial additions to it-porches, a kitchen, a bathroom, and erected a garage. She caused an artesian well to be drilled, piped water into the cabin, and installed plumbing fixtures therein. She exercised all the rights of ownership and made these improvements without consulting the plaintiff or in any way advising him what she was doing or intended to do with respect to the premises and he and his family were aware of what she was doing and said nothing.

In 1924 when Mrs. Schutte began to live in the cabin she was employed in a bank at Medora. During all of this time she kept books for the plaintiff, looked after his income tax matters, and performed other clerical services for him. She made no charge for these services and, on the other hand, at no time during this period did he ever ask for any rent for the use of the cabin or question her right to occupy it and use it as she saw fit. On May 25, 1936, she filed a warranty deed for record in the office of the register of deeds of Billings County. This instrument was signed by the plaintiff and his wife as grantors and conveyed the premises here in question to her. It was dated May 4, 1936, and was acknowledged as of that date before Paul Lebo, the brother of plaintiff's wife. Lebo, a notary public, was also at that time the register of deeds of Billings County. Two persons signed as witnesses to the signatures of the plaintiff and his wife. The typewritten description of the property conveyed was as follows: ‘ Starting at the Southeast Corner of the West half of the Northwest Quarter (W 1/2 NW 1/4) of Section Twenty-six, in Township One Hundred forty (140), North of Range One Hundred two (102), and running in a line north to the southwest corner of the W. J. Ray lot, and thence starting at the Southeast Corner of the West half of the Northwest Quarter (W 1/2 NW 1/4) of above named section, and running east 200 feet, thence north until it intersects the South line of the W. J. Ray lot, which said tract of land is particularly described by metes and bounds as follows, towit: Beginning at a point on the quarter section line thirteen hundred twenty (1320) feet due east of the southwest corner of the southwest Quarter of the Northwest quarter (SW 1/4 NW 1/4) of section Twenty-six (26) Township One hundred forty (140) North, Range One hundred two (102) West, Fifth Principal Meridian, thence running due north three hundred (300) feet, thence due east two hundred (200) feet, thence due south three hundred (300) feet, thence due west two hundred (200) feet, to the point of beginning, containing one and thirty eight hundredths (1.38) acres.’

That portion italicized was written with a different machine, or at least with a different ribbon from that used in writing the remainder of the description. The property thus described was a rectangular tract, bounded for 300 feet by the west line of the SE 1/4 NW 1/4 of section 26, and for 200 feet by the south line of the SE 1/4 NW 1/4 of said section, and contained a little less than 1.38 acres. Plaintiff theretofore had conveyed to his son-in-law, Ray, another tract which bounded the property here involved on the north. Plaintiff himself lived on a tract directly north of that conveyed to Ray and about 600 feet north of the cabin in which Mrs. Schutte lived. He had conveyed still another tract just north of his residence to his wife's brother, Paul Lebo, who resided thereon. The deed to Mrs. Schutte was filed for record on May 25, 1936. The auditor certified that the taxes were paid and the transfer entered on that day. In 1938 the bank in which plaintiff was employed as cashier was closed as insolvent. Mrs. Schutte was indebted to the defendant Billings County in a large sum on account of the wrongful use of certain bonds which had been left with the bank for safekeeping by the county. The county made a settlement with her on account of this indebtedness, under the terms of which she and her husband on July 11, 1939, deeded the property here involved, together with other property belonging to them, to the county. The value of these properties was much less than the amount of her indebtedness. The facts above stated are undisputed.

The following stipulation appears in the record: ‘* * * that Helen Osterhout, the county treasurer of Billings County, if called as a witness will testify that her records show that the taxes were assessed against Mrs. Schutte for the years 1926-'37 on a tract of land on which the house she was occupying was located and that her records show the taxes for all those previous years were paid.’ But it further appears from an itemized statement, signed by the county auditor and county treasurer, and which also is stipulated into the record, that the taxes for the years 1925-1936, both inclusive, were paid by Mrs. Schutte on property which was described in the treasurer's receipts therefor as Lot 26, Section 26. And that the taxes were paid by her husband for the year 1937 on property described as 1.38 acres in the southeast corner of the W 1/2 NW 1/4 of Section 26 (changed by pencil to read E 1/2 NW 1/4) and for the year 1938 on property described as 1.38 acres in the southeast corner of the W 1/2 NW 1/4 of Section 26. These payments were all made before the taxes became delinquent, excepting those for 1925 paid on October 16, 1926 and for 1938 paid on July 12, 1939. The taxes for 1925 amounted to $13.79. The taxes for the following years ranged from $10.11 the smallest amount, paid on February 27, 1933, to $16.64 the greatest amount, paid on February 28, 1931. The last payment, for the 1938 taxes, was $12.01 paid on July 12, 1939, the day following that on which the deed from Mrs. Schutte and her husband deeded the property to Billings County. When Mrs. Schutte filed her deed above described for record on May 25, 1936, the taxes were certified by the county auditor as having been paid and when the county filed its deed from Mrs. Schutte for record on October 9, 1939, the county auditor made a similar certificate. Plaintiff paid the taxes on the property described as the E 1/2 NW 1/4 for the years 1934, 1935, and 1936, on January 6, 1939, and for the year 1937 on November 30, 1938, and for the year 1938 on February 28, 1940. The maximum amount of these taxes for any one of these years was $13.65.

The...