Nord v. Nord

• Decision Date: 09 December 1938
• Docket Number: No. 6496.,6496.
• Citation: 282 N.W. 507,68 N.D. 560
• Parties: NORD v. NORD et al.
• Court: North Dakota Supreme Court

68 N.D. 560

282 N.W. 507

NORD

v.NORD et al.

No. 6496.

Supreme Court of North Dakota.

March 23, 1938.

On Rehearing Dec. 9, 1938.

On Rehearing.

Syllabus by the Court.

1. In an action to quiet title to real estate, the plaintiff must rely upon the strength of his own title.

2. Where a grantor knowingly executes a deed with the intention of transferring title to the land, delivery of such deed with intent to pass title completes the transaction so far as the title is concerned, and such title is vested in the grantee.

3. Where the delivery of a deed results in the passing of the title, notice of cancellation of such deed and demand for its return do not revest the title in the grantor.

4. Where a grantor has transferred title to land by means of a deed, and thereafter deeds to a second grantee having knowledge of the previous grant, the later grantee, in an action to quiet title, cannot attack the validity of the prior deed on the ground that it had been obtained through deceit practiced by a third party inducing the grantor and grantee to enter into the contract for deed, when such grantor is not made party to the action and is not litigating the validity of such deed.

5. Where a mortgagor of real property covenants with the mortgagee that he is lawfully seized of the premises mortgaged, has good right to convey the same, and that he will warrant and defend the title against all lawful claims, the title which he acquires subsequent to the execution of the mortgage inures to the mortgagee as security for the debt in like manner as if acquired before the execution of the mortgage, and the fact that this after-acquired title does not accrue to the mortgagor until after the foreclosure of the mortgage and the expiration of the period of redemption does not limit the application of this doctrine of after-acquired title.

Appeal from District Court, Ransom County; Geo. M. McKenna, Judge.

Action to determine adverse claim to realty by Calmer O. Nord against C. A. Nord and the Citizens State Bank of Enderlin, N. D. From an adverse judgment, defendant Citizens State Bank of Enderlin, N. D., appeals.

Reversed and rendered.

Kvello & Adams, of Lisbon, for appellant.

C. G. Bangert, of Enderlin, for respondent.

BURR, Judge.

This is an action to determine adverse claims to the northeast quarter of section 13, township 136, range 56, in Ransom county.

Prior to December 14, 1927, the record title to the land was in Bertha A. Nord, wife of the defendant Nord and mother of the plaintiff Nord, and in December, 1927, Bertha A. Nord died, leaving as her heirs her husband, the defendant Nord, and six sons and daughters, including the plaintiff. The Nord family had the impression that some time prior to her death the mother had deeded this land to the father. After the death of the mother, search was made but no deed was discovered, and it is an accepted fact that no such conveyance was ever made.

The plaintiff is the son of the defendant C. A. Nord, and hereafter such parties are designated son and father.

In November, 1931, the son executed and delivered to the bank a promissory note for over $2000, due September 1, 1932, which note was signed by his father. On December 19, 1933, the father gave a note to the bank, due May 1, 1934, to renew this indebtedness, and for security gave a mortgage upon the land involved. In this mortgage the father covenanted with the bank that he was lawfully seized of said premises; that he had good right to convey the same; that they were free from all encumbrances; that the bank should “quietly enjoy and possess the same; and that the said party of the first part (the father) will Warrant and Defend the title to the same against all lawful claims.” The mortgage contained the usual agreement for foreclosure in case of default and was taken without any record examination of the title-all parties believing the father to be the owner. The record further shows that, though the indebtedness was the indebtedness of the son, the father was perfectly willing to give the renewal note and execute the mortgage as he had signed the original note with the son and the land was eventually to go to the son, the plaintiff, in any event.

In October, 1934, the note being unpaid, an attempt was made by the father to refinance this debt through the means of a federal loan. These negotiations failed, and on October 25, 1934, the cashier of the bank wrote the plaintiff, telling him of the failure and saying:

“The Sec'y. Treasurer for the Federal Land Bank * * * stated that if it is the intentions of your father to give you this quarter of land that it would be the best that your father give you a Deed for the land and that you make the application yourself.

I was over and saw your father to-day and he stated that this would be al-right with him, and he give us a Deed for the land, this deed is made out to you and we are holding the Deed here, and this Deed will be recorded as soon as we get the loan through. * * *”

The suggestion was made also that the plaintiff make application to the Federal Land Bank to refinance the indebtedness, and this was done in November of that year. These negotiations failed, though the Land Bank had extended the time for completion of details. In April, 1935, while these latter negotiations were in progress, an action was commenced by the bank to foreclose the mortgage-the father and the son being made defendants. Both defaulted, judgment of foreclosure was rendered, execution issued, the land sold to the bank on July 10, 1935, for the full amount of the indebtedness with costs, and thereafter the sale was confirmed. On July 13, 1935, the certificate of sale was issued by the sheriff to the bank and duly recorded.

After July, 1935, and after the negotiations to refinance were abandoned entirely, an abstract of title was obtained. Then it was disclosed to all parties that the record title to the land was in the mother, and we find as a fact that none of the Nord family knew of the status of the title at that time.

On September 5, 1935, counsel for the bank wrote to the plaintiff, stating, among other things:

“We have been asked by your father to clear up a question of title to the E 1/2-13-136-54, on the NE 1/4 of which he is now negotiating for a loan. * * *

The abstract, however, shows that he only owned a one-third interest in this and the title came to your mother in 1904. * *

He * * * is arranging to deed the NE 1/4 to you, subject, of course, to the new financing of the mortgage which is being held up pending this arrangement. It is necessary, however, to make the title good to get quit claim deeds from the children and we have secured deeds here now from Alfred, Charlie, Arne and your sister, Bertha at Enderlin. * * *”

The letter inclosed a quitclaim deed which the plaintiff executed. In September, 1935, quitclaim deeds from the other children to the father were executed and delivered.

The quitclaim deed to the father from Arne and Charlie Nord and Bertha Peterson, three of the children, is dated September 4, 1935, and the grantors therein “grant, bargain, sell, remise, release and quit-claim unto the said party of the second part (the father), and to his heirs and assigns, forever, all their right, title, interest and estate in and to the * * *” premises involved here. Quitclaim deeds from the other children, including the plaintiff, are in the same general form.

In the meantime the bank, through its counsel, and, as we find, for the purpose of establishing heirship so as to improve its own interest, commenced proceedings in the county court, and thereafter by decree dated October 9, 1935, it was determined that the father, together with his six sons and daughters, were the sole heirs of Bertha Nord, and that on her death the father had a one-third interest in the land and each of the children a one-ninth interest.

On October 2, 1935, the plaintiff and his brothers and sisters notified the bank and the father that they had canceled “and are withdrawing the quit claim deeds which we, the undersigned, or any of us, have delivered to C. A. Nord. * * * These deeds were given upon the representations that we had no interest in this land or property, and that they were required merely to clear up a technical defect in the title. The deeds were given entirely without consideration and under a misapprehension as to the facts, and upon a misrepresentation as to such facts. * * *”

On October 2, 1935, the brothers and sisters executed a quitclaim deed to the plaintiff, purporting to convey the premises involved. This quitclaim deed merely conveys to him “all their right, title, interest, claim or demand in and to the following tract or parcel of land * * *” and also the grantors assigned “to the grantee, his heirs, executors or assigns any and all interest they have in the estate of Bertha Nord, deceased.”

In April, 1936, this action was commenced and the complaint is in the usual statutory form.

The answer of the bank traces the chain of title into the father, and in addition sets up the doctrine of estoppel as against the son, alleging that in the judgment of foreclosure in the action in which the son was the defendant it was determined “that the interest of * * * Calmer O. Nord (the son) in and to the said real estate was subsequent and inferior to that of the lien of the * * * Citizens State Bank * * * and the said Calmer O. Nord and the other defendant, Charles A. Nord, be forever barred and foreclosed of all right, title, interest and equity of redemption in and to said mortgaged premises or any part thereof, unless the same shall be duly redeemed as provided by law * * *; that no appeal has been made or attempted by the said Calmer O. Nord from said judgment or any part thereof * * * and that said judgment has become final * * * and that by virtue thereof the plaintiff is estopped to again litigate or question the title of the said Charles A. Nord in or to the premises...