Rice v. Neether

• Decision Date: 20 December 2016
• Docket Number: No. 20160013,20160013
• Parties: Cory M. RICE, Plaintiff and Appellant v. Joyce NEETHER, Defendant and Appellee
• Court: North Dakota Supreme Court

888 N.W.2d 749 (Mem)

Cory M. RICE, Plaintiff and Appellant

v.Joyce NEETHER, Defendant and Appellee

No. 20160013

Supreme Court of North Dakota.

Filed December 20, 2016

Ryan R. Dreyer (argued), Minnetonka, MN and Daniel James Frisk, ND, for plaintiff and appellant.

Paul R. Sanderson and Nils J.D. Eberhardt (argued), Bismarck, ND, for defendant and appellee.

McEvers, Justice.

[¶ 1] Cory Rice appeals the district court's judgment quieting title to real property in Joyce Neether. Because Rice failed to establish the deeds were delivered and N.D.C.C. § 47–09–06 creates a rebuttable presumption that a deed has been delivered at its date only after delivery has been separately established, we affirm.

I

[¶ 2] Cory Rice is Joyce Neether's grandson. Joyce Neether and her late husband, Alvin Neether, raised Rice at their farm. Alvin Neether was diagnosed with ALS in 2009. Sometime before July 29, 2009, Joyce Neether contacted attorney Wayne Enget to draft a bill of sale for the purchase of personal property and two warranty deeds conveying real property to Rice, reserving a life estate in that property for the Neethers.

[¶ 3] On July 29, 2009, Enget met with the Neethers to sign the warranty deeds. At that time, Alvin Neether was terminally ill and, while he was physically unable to sign his own name, the district court found he was mentally competent to transfer property. Joyce Neether had authority through a Power of Attorney to manage Alvin Neether's real and personal property. After consulting with Enget, Joyce Neether signed the deeds on behalf of herself and Alvin Neether. Rice was not present when Joyce Neether signed the deeds. Enget told the Neethers he would record the deeds the following day, July 30, 2009.

[¶ 4] Before Enget recorded the deeds, Joyce Neether called Enget and instructed him not to record the deeds. Joyce Neether told Enget that she would call him when he was authorized to record the deeds and the bill of sale. Joyce Neether never contacted Enget to either record the deeds or deliver them to Rice.

[¶ 5] Rice testified that, some time after July 29, 2009, he came to believe he owned the property at issue based on alleged conversations he had with both Alvin Neether and Enget. Rice claimed Enget had represented him on other matters prior to 2009. Rice testified that, in 2012, Rice learned a developer planned on building a grocery and liquor store on the property he believed the Neethers had conveyed to him. Rice brought an action in district court to quiet title.

[¶ 6] After a bench trial in August 2014, the district court found Enget was acting as the Neethers' attorney when drafting the deeds, Enget was not acting as Rice's attorney, the deeds were neither actually nor constructively delivered and, therefore, no transfer of property to Rice occurred. The district court concluded N.D.C.C. § 47–09–06 does not create a rebuttable presumption that a deed is presumed to have been delivered at its date and entered judgment quieting title in favor of Joyce Neether. Rice appeals.

II

[¶ 7] Rice argues the district court erred in quieting title in favor of Joyce Neether. According to Rice, N.D.C.C. § 47–09–06 creates a rebuttable presumption of delivery, and Joyce Neether failed to rebut the presumption. Rice also argues, even if the statutory presumption does not apply, Joyce Neether constructively delivered the deeds under N.D.C.C. § 47–09–09(2).

[¶ 8] Title 47, N.D.C.C., governs real property within North Dakota. At issue in this case is whether property was acquired by transfer under N.D.C.C. § 47–01–21(3). Section 47–10–01, N.D.C.C., generally requires a transfer of real property be in writing. Section 47–09–06, N.D.C.C., requires that a deed be delivered, providing "[a] grant takes effect so as to vest the interest intended to be transferred only upon its delivery by the grantor and is presumed to have been delivered at its date."See Jorgensen v. Crow , 466 N.W.2d 120, 122 (N.D. 1991) ("Absent a delivery of the deed, the deed is of no effect."). The parties agree there was no actual delivery of the deeds. Although a deed may not actually be delivered into the possession of the grantee, it may still be constructively delivered:

1. When, by the agreement of the parties, the instrument is understood to be delivered at the time of execution and the circumstances are such that the grantee is entitled to immediate delivery; or

2. When it is delivered to a stranger for the benefit of a grantee and the grantee's assent is shown or may be presumed.

N.D.C.C. § 47–09–09.

[¶ 9] Resolving these issues involves a mixed question of law and fact. Statutory interpretation is a question of law, which this Court reviews de novo. Olson v. Job Service , 2013 ND 24, ¶ 3, 827 N.W.2d 36. "The question of whether there was actual or constructive delivery of a deed is a question of fact." Jorgensen , 466 N.W.2d at 122 (citing First Nat'l Bank v. Bloom , 264 N.W.2d 208, 210 (N.D. 1978) ). Findings of fact shall not be set aside unless clearly erroneous. N.D.R.Civ.P. 52(a). " ‘A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made.’ " Dronen v. Dronen , 2009 ND 70, ¶ 7, 764 N.W.2d 675 (quoting Jelsing v. Peterson , 2007 ND 41, ¶ 11, 729 N.W.2d 157 ).

A.

[¶ 10] Rice argues N.D.C.C. § 47–09–06 creates a rebuttable presumption that a deed is presumed to have been delivered at its date. When interpreting a statute, we first look to the language itself and determine whether it is unambiguous on its face. Hiltner v. Owners Ins. Co. , 2016 ND 45, ¶ 5, 876 N.W.2d 460. As this Court explained in Rasnic v. ConocoPhillips Co. :

Words in a statute are given their plain, ordinary, and commonly understood meaning unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1–02–02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1–02–07. If the language of a statute is clear and unambiguous, the letter of the statute must not be disregarded under the pretext of pursuing its spirit. N.D.C.C. § 1–02–05. If the language of a statute is ambiguous, however, a court may resort to extrinsic aids to determine the intention of the legislation, including the object sought to be attained, the circumstances under which the legislation was enacted, and the legislative history. N.D.C.C. § 1–02–39. A statute is ambiguous if it is susceptible to different, rational meanings.

2014 ND 181, ¶ 14, 854 N.W.2d 659. In enacting a statute, it is presumed that "[a] just reasonable result is intended." N.D.C.C. § 1–02–38(3).

[¶ 11] Section 47–09–06, N.D.C.C., provides: "A grant takes effect so as to vest the interest intended to be transferred only upon its delivery by the grantor and is presumed to have been delivered at its date." The plain language requires that to effectuate the transfer of real property, the grantee must first establish "delivery by the grantor" and, thereafter, a presumption arises that the delivered grant "is presumed delivered at its date." Contrary to Rice's argument, the "delivery" is not presumed under the plain language of the statute. Rather, the presumption arises after delivery has been proven to determine the date of delivery, which presumption can be overcome by evidence. See Leonard v. Fleming , 13 N.D. 629, 102 N.W. 308 (1905) (holding "[t]he time of the delivery of the deed is not shown by independent evidence.... In the absence of evidence to overthrow the presumption of delivery as of the date of the deed, the deed speaks for itself, and determines the time of delivery ."¹ Id. at 309 (citations omitted) (emphasis added)). Delivery must be proven, based on the circumstances presented. See O'Brien v. O'Brien , 19 N.D. 713, 125 N.W. 307 (1910) ; see also Black v. Black , 58 N.D. 501, 226 N.W. 485 (1929) ; McGuigan v. Heuer , 66 N.D. 710, 268 N.W. 679 (1936) ; Keefe v. Fitzgerald , 69 N.D. 481, 288 N.W. 213 (1939) ; Shuck v. Shuck , 77 N.D. 628, 44 N.W.2d 767 (1950) ; Adams v. Little Missouri Minerals Ass'n , 143 N.W.2d 659 (N.D. 1966) ; Frederick v. Frederick , 178 N.W.2d 834 (N.D. 1970) ; CUNA Mortg. v. Aafedt , 459 N.W.2d 801 (N.D. 1990). The district court correctly concluded a presumption of delivery does not arise under N.D.C.C. § 47–09–06.

B.

[¶ 12] Rice argues, even if delivery is not presumed, the evidence shows constructive delivery. Both parties agree there was no constructive delivery under N.D.C.C. § 47–09–09(1) because there was no agreement of the parties that Rice was entitled to immediate delivery of the deed. Relevant here is whether the deeds were constructively delivered by delivering "to a stranger for the benefit of a grantee and the grantee's assent is shown or may be presumed." N.D.C.C. § 47–09–09(2). As the grantee, Rice had the burden to prove delivery. See Black , 226 N.W. at 489.

[¶ 13] Whether a delivery occurred "is a question of fact to be found from all the circumstances surrounding the transaction." O'Brien , 125 N.W. at 308. A finding of fact is subject to the clearly erroneous standard of review. Jorgensen , 466 N.W.2d at 122 ; N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous "if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made." Kelly v. Kelly , 2002 ND 37, ¶ 15, 640 N.W.2d 38 (citing Mosbrucker v. Mosbrucker , 1997 ND 72, ¶ 5, 562 N.W.2d 390 ). The burden lies with the party asserting title "to show that the deeds were constructively delivered." Magoffin v. Watros , 45 N.D. 406, 178 N.W. 134, 136 (1920).

[¶ 14] "Delivery of a deed may be by words or acts or both combined." Keefe v. Fitzgerald , 69 N.D. 481, 288 N.W. 213, 214 (1939). "An indispensible [sic] element to be considered in determining...