Redman v. Biewer, 7251

Decision Date01 June 1951
Docket NumberNo. 7251,7251
Citation48 N.W.2d 372,78 N.D. 120
PartiesREDMAN v. BIEWER et al.
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. When a transfer of real property is made to one person and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made. (NDRC 1943, 59-0106).

2. Where property is purchased by a husband with monies furnished by his wife from her separate estate and there is no intention that the wife shall make a gift of the land to her husband an implied trust arises in her favor and the husband holds the title as trustee for her.

3. Parol evidence is admissible to prove an implied trust resulting from payment of ownership of the purchase money for conveyance to another and to show that the consideration paid belonged to the person claiming the trust. Such trust does not depend upon contract but arises by operation of law and is not affected by the statute of frauds.

4. A judgment lien on real property is a creature of statute. Except as recording laws may extend the benefit of a judgment lien to creditors a judgment is a lien upon and attaches only to the precise interest or estate which the judgment debtor actually has in the property, and only to such interest.

5. The preference, if any, accorded to a judgment lien as against a prior unrecorded interest or estate in the debtor's land, or as against an attachment levied thereon or any judgment against the debtor, is based entirely upon statute, it extends no further than the terms of the statute, and if the statute merely protects the holder of a judgment against one in whose name the title appears of record it gives no preference to a judgment against a grantor whose title as well as that of his grantee is unrecorded.

6. NDRC 1943, 47-1941 which provides that every conveyance of real estate not recorded as provided by law shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate or any part or portion thereof whose conveyance is first recorded, or as against an attachment levied thereon or 'any judgment lawfully obtained at the suit of any party, against the person in whose name the land appears of record, prior to the recording of such conveyance' is applicable only to a judgment against a person in whose name the title to such land appears of record, and the lien of such judgment does not attach to lands the title to which does not appear of record in the name of the judgment debtor.

7. Where the title to a tract of land does not appear of record in the office of the register of deeds of the county in which the land is situated in the name of the judgment debtor the judgment is not accorded preference over a prior unrecorded interest as provided by Section 47-1941; but the status of such judgment and the scope of the lien thereof falls within the purview of NDRC 1943, 28-2013, and whenever the lien of the judgment attaches to any parcel of property it becomes a charge upon the precise interest which the judgment debtor has in such property and no other. The apparent interest of the debtor can neither extend nor restrict the operation of the lien so that it will incumber any greater or less interest than the debtor in fact possesses.

Halvorson & Halstead, Minot, for appellant.

Murray & Murray, Bismarck, for respondent.

CHRISTIANSON, Judge.

Plaintiff brought this action to determine adverse claims to certain land in Grant County in this state and to reform a contract for deed for such land executed and delivered by the State of North Dakota by the Board of University and School Lands to Roy P. Redman, the plaintiff's husband. The complaint sets forth two causes of action. The first cause of action contains the allegations of a complaint in an action under the statute to determine adverse claims. The second cause of action sets forth that the plaintiff's husband, Roy P. Redman, as her agent purchased for her the land in question from the State of North Dakota; that he paid the purchase price therefor from and with her funds; that the State of North Dakota through error and mistake inserted the name of her husband, Roy P. Redman, as vendee in the contract for deed; that after said Redman received the duplicate of such contract he notified the defendant, the State of North Dakota, of such error and requested that the error be corrected and that the name of the plaintiff be placed in the contract as vendee; that he was advised by the State of North Dakota that it was not necessary to make such correction; that he, the said Roy P. Redman, could assign the contract to the plaintiff and that such transaction would have the same effect as if the contract for deed had been executed in her name as vendee in the first instance; that the said Redman and the plaintiff relied on this and that the said Roy P. Redman did execute and deliver to the plaintiff an assignment of the contract in writing; that thereafter the plaintiff and Roy P. Redman informed the defendant, the State of North Dakota, of such assignment and demanded that deed be executed and delivered to the plaintiff upon the payment of the balance of the purchase price. That thereafter the said plaintiff through her said agent, Roy P. Redman, did pay the balance of the purchase price and that at the time such payment was made he demanded deed from the State of North Dakota to the plaintiff.

The defendant Biewer answered alleging that he was and is the owner of a certain judgment for $1034.76 in favor of Federal Deposit Insurance Corporation and against Roy P. Redman in District Court of Grant County in this state, rendered and docketed April 18, 1941; that said Biewer purchased such judgment for a valuable consideration and received an assignment thereof in writing from the judgment creditor which assignment was filed in the office of the Clerk of the District Court of said Grant County on or about November 28, 1949, and that such judgment is a lien upon the land in question. The plaintiff interposed a reply to the answer denying generally the new matter set forth therein but admitting that the defendant Biewer became the owner of the judgment and alleging that he did not purchase the same in good faith, paid only a nominal sum therefor and that said defendant Biewer at all times had knowledge that the judgment debtor Roy P. Redman was at no time the owner of the property involved in this action, and that the plaintiff was the owner thereof.

The case was tried to the court without a jury and the trial court made findings of fact and conclusions of law in favor of the plaintiff and rendered judgment that the plaintiff was and is the owner in fee simple of the land in controversy; that the defendants and neither of them have any estate, right, title, interest, lien or encumbrance thereon; that the judgment against Roy P. Redman in favor of the Federal Deposit Insurance Corporation assigned to and owned by the defendant Biewer is not a lien upon said land and that a levy made upon such land under an execution issued on such judgment is null and void. The defendant Biewer appeals from the judgment and demands a trial anew in this court.

The evidence shows that at the time the land involved in this action was purchased from the Board of University and School Lands of the State of North Dakota, the plaintiff was the owner of lands adjacent to and bordering upon such lands and that she had owned such lands for many years prior thereto. The uncontradicted testimony of the plaintiff and her husband is to the effect that she instructed her husband to purchase for her the land involved in this suit; that she owned considerable land adjoining this particular land and desired to acquire the land in suit and that her husband, Roy P. Redman, purchased the land for her but that the contract for deed instead of being made out in her name as vendee was made out in the name of her husband as vendee.

The evidence shows that the lands owned by the plaintiff adjoining the land in suit were received by her as part of her inheritance from her parents. The uncontradicted evidence is to the effect that the plaintiff had received large sums of money and other property from the estate of her parents and that the principal amount of monies in her bank account had come from such source. The evidence is also to the effect that on the 20th day of July 1945 the State of North Dakota by the Board of University and School Lands executed and delivered to Roy P. Redman, plaintiff's husband, a contract for deed to the land in question. By such contract the Board of University and School Lands agreed to sell and Roy P. Redman agreed to buy the tracts of land involved herein for the sum of $2400; that at said time the said Roy P. Redman as a down payment on the purchase price of said land delivered to the Board of University and School Lands a check in the sum of $514 which said check was drawn on the checking account of the plaintiff in Grant County State Bank of Carson and was signed, Rose Anna Redman by Roy P. Redman. Thereafter and on the 23rd of May, 1946, Roy P. Redman paid to the Board of University and School Lands the further sum of $1944 being the balance due on said land contract, such check was also drawn on the bank account of the plaintiff in the Grant County State Bank. When said check for the balance of the purchase price was sent to the State Land Department it was enclosed with a letter from Roy P. Redman, which letter read as follows:

'Heil N. Dakota

May 23, 1946

'Land Department

'Bismarck, N. Dak.

'Dear Sir.

Grant Co.

'Enclosed find check to cover balance due on W 1/2 SE and SW 1/4 NW 1/4 & Lot 2 in Section 2-134-88. This amount covers interest to June 1, 1946. Kindly complete this contract and send abstract of title and deed made out to Rose Anna Redman, as soon as possible.

'Very truly yours

'ROY P. REDMAN.

'Grant Co.

'Heil North...

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  • Trustees of Clients' Sec. Fund of Bar of New Jersey v. Yucht
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    • New Jersey Superior Court
    • June 30, 1989
    ...than naked legal title to the property and holds it as a trustee for the benefit of the party who should have it. See Redman v. Biewer, 78 N.D. 120, 48 N.W.2d 372 (1951); Hyland v. Tousley, 67 N.D. 612, 275 N.W. 340 (1937); Arntson v. First National Bank of Sheldon, 39 N.D. 408, 167 N.W. 76......
  • Shong v. Farmers' & Merchants' State Bank, Hutchinson, Minn., 7494
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    • June 7, 1955
    ...Such trust does not depend upon contract, but arises by operation of law and is not affected by the statute of frauds. Redman v. Biewer, 78 N.D. 120, 48 N.W.2d 372. The record in this case reveals that Alfreda Shong was married twice. Her first husband was Michael H. Conway. Peter M. Shong ......
  • Atlas, Inc. v. United States, Civ. No. A77-1066.
    • United States
    • U.S. District Court — District of South Dakota
    • November 20, 1978
    ...than naked legal title to the property and holds it as a trustee for the benefit of the party who should have it. See Redman v. Biewer, 78 N.D. 120, 48 N.W.2d 372 (1951); Hyland v. Tousley, 67 N.D. 612, 275 N.W. 340 (1937); Arntson v. First National Bank of Sheldon, 39 N.D. 408, 167 N.W. 76......
  • Kingsley v. Makay
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    ...Caltrider v. Caples, supra; Kinsey v. Drury, 146 Md. 227, 126 A. 125 (1924); Dyson v. Simmons, 48 Md. 207 (1878); Redman v. Biewer, 78 N.D. 120, 48 N.W.2d 372 (1951). In Dyson v. Simmons it was 'The judgment creditor therefore stands in the place of his debtor, and he can only take the prop......
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