Parceluk v. Knudtson

• Decision Date: 07 January 1966
• Docket Number: No. 8162,8162
• Citation: Parceluk v. Knudtson, 139 N.W.2d 864 (N.D. 1966)
• Parties: Alma M. PARCELUK, Plaintiff and Appellant, v. Millie S. KNUDTSON, James O. Knudtson, Florence V. Barnhart, Carl A. Knudtson Robert K. Knudtson, Margaret M. Haag (formerly Margaret M. Knudtson), and Hunt Petroleum Corporation, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 864

139 N.W.2d 864

Alma M. PARCELUK, Plaintiff and Appellant, v. Millie S. KNUDTSON, James O. Knudtson, Florence V. Barnhart Carl A. Knudtson Robert K. Knudtson, Margaret M. Haag (formerly Margaret M. Knudtson), and Hunt Petroleum Corporation, Defendants and Respondents.

No. 8162.

Supreme Court of North Dakota.

Jan. 7, 1966.

Rehearing Denied Feb. 14. 1966.

Syllabus by the Court

1. A deed is of no effect unless it is delivered.

2. One indispensable element to be considered in determining whether a valid delivery of a deed has been made is the intention of the grantor. Such intention may be shown by words or acts, or both.

3. Where the undisputed evidence shows a valid delivery of the deed, its return to the grantor for some specific purpose, such as safekeeping, does not destroy the effect of the delivery.

4. A valid delivery of a deed from husband to wife some years prior to his death passes title to the wife, and such title will not be affected by a subsequent decree of distribution where such property was wrongfully included in the husband's estate.

5. An agreement for the sale of real property, to be valid, must be in writing, or some note or memorandum of such agreement must be in writing, subscribed by the party to be charged, unless such oral agreement has been partially performed and such part-performance would render it a fraud on the buyer to permit the seller to refuse to carry out his agreement.

6. Where defendants claim they purchased the plaintiff's one-ninth interest in certain real estate under an oral agreement, evidence showing that defendants dug a water hole on the premises, dug a well, and built certain corrals for livestock was not sufficient, together with evidence of payment, to take such oral agreement out of the statute of frauds because such acts were consistent with the ownership by the defendants of the eight-ninths interest in the property and their use of the property as a cattle ranch.

7. To show facts sufficient to take an oral agreement out of the statute of frauds, a party alleging such oral agreement must show not only the terms of the contract but also such acts and conduct on the part of the party who it is claimed sold his interest in real estate, which put the party buying the same in such position that nonperformance by the other would amount to a fraud upon him.

8. A tenant in common who occupies more than his proportionate share of the common property and who has not agreed to pay therefor, and who has not ousted his cotenant, is not liable to such cotenant for rent or for use and occupancy.

9. A cotenant having a clear title to an undivided share or interest in real estate may maintain an action for partition.

10. A tenancy at will confers right to possession for such an indefinite time as both parties determine the possession shall continue. Where one party acts to terminate the tenancy at will, such party is thereafter entitled to demand rents and profits from date of termination of such tenancy.

Mackoff, Kellogg, Muggli & Kirby, Dickinson, for plaintiff and appellant.

Reichert & Howe, Dickinson, for defendants and respondents Millie S. Knudtson, James O. Knudtson, Florence V. Barnhart, Carl A. Knudtson, Robert K. Knudtson, and Margaret M. Haag.

Shank, Irwin & Apeland, Dallas, Tex., for defendant and respondent Hunt Petroleum Corporation.

STRUTZ, Judge.

Charley S. Knudtson died intestate on July 10, 1947. He was survived by his widow, Millie S. Knudtson, and by six children, three sons and three daughters, the youngest being a son nineteen years of age. One of the daughters, Alma M. Parceluk, is the plaintiff and appellant in this action. The other children, together with the widow, Millie S. Knudtson, are made defendants. Hunt Petroleum Corporation, holder of an oil lease on the property involved in the suit, also is made a defendant. The validity of the oil lease is not challenged by the plaintiff, however.

Probate of the estate of Charley S. Knudtson was begun in county court of Billings County in October of 1947. Each of the heirs signed an appearance and waiver of service of citation and notice, which waiver provided, among other things:

'I do hereby also consent that said estate be administered and final decree of distribution entered therein without the service of any further notice or citation on me.'

One of the sons, James O. Knudtson, was appointed administrator of the estate. The inventory listed certain real estate as follows:

1. North Half of South Half (N 1/2 S 1/2) of Section 32, 144, 98

2. South Half of South Half (S 1/2 S 1/2) of Section 32, 144, 98

3. Northwest Quarter (NW 1/4) and Northeast Quarter (NE 1/4) of Section 32, 144, 98

4. All of Section 31, 144, 98

5. All of Section 19, 144, 98

This real estate was appraised at $8,160. This valuation included the homestead which was appraised at $2,400.

Final decree of distribution was entered on July 12, 1948. This decreed to the widow, Millie S. Knudtson, the entire title to the homestead, described as the North Half of the South Half (N 1/2 S 1/2) of Section 32, Township 144, Range 98, and further decreed to her a one-third interest in the remainder of the real estate. Each of the children was decreed a one-ninth interest in the real estate, except the homestead. Such final decree of distribution also decreed to the widow a one-third interest in the personal property and a one-ninth interest in such personal property to each of the children. The appraised value of the personal property was $12,396.70.

The plaintiff brings this action to quiet title to her one-ninth interest in all the real estate described in the final decree, including the homestead. She also demands partition of the real estate and an accounting from her mother, Millie S. Knudtson, and her brothers James and Rebert for her share of the rents and profits accruing from her one-ninth interest in the land. The defendants contend that, subsequent to the closing of the estate, they and the plaintiff orally agreed that the mother should remain in possession of the property of the estate and that she should retain the rents and profits therefrom during her lifetime. It was further agreed that the mother should pay taxes and maintain the premises during her possession. She has been in possession and has carried out this agreement without any objection from the plaintiff until the commencement of this action.

It is further contended by the defendants that, on or about July 7, 1949, the plaintiff was in need of money and that she sold her one-ninth interest in the estate, both real and personal, to her mother and her three brothers; and that, although the sale was made orally, the full purchase price agreed upon was paid to the plaintiff and the purchasers have remained in possession since that time with no demand being made by the plaintiff for possession or for rents and profits until the commencement of this action in July of 1962, thirteen years after such sale was made. It is further contended by the defendants that, relying on such oral sale, the purchasers have made valuable and permanent improvements upon the real estate.

The plaintiff, on the other hand, asserts that she sold only her one-ninth interest in the personal property of the estate and that she did not sell any part of her interest in the real estate. She contends that any purported sale of the real property, being based on an oral agreement, is in violation of the statute of frauds since such agreement was not in writing as required by Section 9-06-04, North Dakota Century Code. She further contends that such purported oral agreement would be in violation of Section 47-10-01 of the North Dakota Century Code which provides for the methods of transferring an estate in real property.

The record also shows that, on May 21, 1948, the plaintiff signed a receipt for her share of the property in the estate and consented that the administrator be discharged.

It is conceded by the parties that, after the estate had been closed, the plaintiff sold at least a portion of her interest in the estate. According to her testimony, she sold only her interest in the personal property. All of the parties agree that she did sell her interest in the personal property, but there is a direct conflict in the evidence as to whether the sale and purchase included the plaintiff's interest in the real estate. The testimony of the defendants is that she sold her entire interest in the estate, including her interest in the real estate. The defendants point out that the amount of the purchase price was arrived at by taking the market value of the cattle and appraising the value of the real estate at six dollars an acre, and that she then was offered one-ninth of such amount for her entire interest in the estate and that she accepted the offer. The defendants further testified that the plaintiff agreed to have a deed made out, executed, and mailed to her brother James who had been the administrator of the estate. No written memorandum was made of this agreement, however, and when the plaintiff was asked to give the deed later, she refused to do so. James testified that, approximately six months to a year after the plaintiff had sold her interest in the estate, he asked her for a deed and that she stated that she didn't think she wanted to give the deed yet. Subsequently, she again was asked for the deed, and at that time she stated that she didn't think she had sold her interest in the real property.

The mother and her three sons continued to occupy and operate the farm until 1952, when one of the boys moved away. Thereafter, another moved, leaving the mother and the youngest son on the farm. Both of the boys who left the farm, however, retained their interest in it. At the time of the trial, the mother and the youngest son were farming and operating the land. The evidence shows that another daughter had sold her entire interest in the estate, including her...