Rieger v. Rieger

• Decision Date: 18 February 1970
• Docket Number: No. 8591,8591
• Citation: 175 N.W.2d 563
• Parties: Leo Roy RIEGER, Plaintiff and Appellant, v. Francis RIEGER, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 563

175 N.W.2d 563

Leo Roy RIEGER, Plaintiff and Appellant, v. Francis RIEGER, Defendant and Respondent.

No. 8591.

Supreme Court of North Dakota.

Feb. 18, 1970.

Rehearing Denied March 10, 1970.

Syllabus by the Court

1. On trial de novo this court will give the findings of the trial court appreciable weight, especially when the facts are based upon the testimony of witnesses who appeared before the trial court.

2. The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument. N.D.C.C. § 9--06--07.

3. The burden of proof rests on one who seeks to have a contract specifically performed to establish the terms of a contract upon which he relies which are essential to a decree of specific performance.

4. Proof of an implied or resulting trust must be clear, specific, substantial and satisfactory.

5. Generally, neither specific performance nor the remedy in the nature of specific performance will be granted as to a breach of a contract to devise or bequeath during the lifetime of the promisor.

William R. Mills Bismarck, for plaintiff and appellant, Jack R. Christensen, Bismarck, on oral argument.

Duffy & Haugland, Devils Lake, for defendant and respondent.

ERICKSTAD, Judge.

The plaintiff, Leo Roy Rieger, appeals from a judgment of the District Court of Benson County dated August 30, 1968.

Leo initiated this action by a complaint dated October 12, 1965.

In paragraph I of the complaint, he describes 480 acres of land in which he contends he has an estate or interest. This is the same land as described in paragraph III(A) of the complaint.

In paragraph II of the complaint, he asserts that Vincent Rieger died intestate on or about May 5, 1954, in Benson County, North Dakota, possessed of and owning certain real estate totaling 960 acres which he, Leo, describes, together with other properties, and that, as a son and heir of Vincent, he had an interest in the same.

In paragraph III of the complaint, he asserts that on the 17th of November, 1954, he executed and delivered a quitclaim deed conveying all his right, title and interest in the real eatate of the Vincent Rieger Estate and that on the same date he assigned all of his interest in the Vincent Rieger Estate to Francis, and that in consideration of the conveyance of the real estate interest and the assignment, Francis promised:

(A) That for so long as the said Francis Rieger lived the plaintiff could continue to possess and farm and enjoy the real estate premises then in his possession and described as the NW 1/4 of Section 33; SW 1/4 SW 1/4 of Section 28; SE 1/4 SW 1/4 of Section 28; W 1/2 SE 1/4 of Section 21; NE 1/4 SW 1/4 of Section 21; W 1/2 NW 1/4 of Section 27; NW 1/4 SW 1/4 of Section 27, Township 153, Range 71, Benson County, North Dakota, provided that one-fourth the crop therefrom be delivered or paid over to her, and (B) That she would convey to plaintiff the premises described as the NW 1/4 of Section 33; SW 1/4 SW 1/4 of Section 28, Township 153, Range 71, Benson County, North Dakota, but subject to her right to receive one-fourth the crop from same for so long as she should live.

In paragraph IV of the complaint, he asserts that he has been in possession of the 480 acres described in paragraph III(A) since May 5, 1954, except for the SE 1/4 SW 1/4 of Section 28 and the SW 1/4 SE 1/4 of Section 21, which Francis has wrongfully occupied since 1961, and except for the W 1/2 NW 1/4 of Section 27 and the NW 1/4 SW 1/4 of Section 27, which Francis has wrongfully occupied since 1964.

In paragraph V of the complaint, he asserts that Francis, pursuant to an agreement within him, agreed that the should farm the 480 acres on the basis set out in paragraph III(A) and (B), and that Francis entered into a final contract with him as a memorandum of such agreement.

A further assertion of paragraph V reads as follows:

* * * it being understood and agreed between the parties that plaintiff by relinquishing his share of the estate to defendant was to have the exclusive right to farm the said premises during defendant's lifetime although the said farm contract was for a term of five years, and that plaintiff was to share equally in defendant's estate at the time of her death.

In paragraph VI of the complaint, Leo sets forth the descriptions of the property which he contends Francis transferred, leased, sold or divested herself of, and in addition asserts that Francis has established interests by will or other devise affecting her estate which will deprive him of his share of her estate upon her death.

In paragraph VII of the complaint, Leo asserts that Francis continues to dispossess, deprive and divest him of parts of the 480 acres described in paragraph I without regard for his interest therein.

In paragraph VIII of the complaint, Leo asserts that he has been deprived of the use and enjoyment of premises previously described and 'of an undetermined amount of property (to) which he legally is entitled as an eventual heir of defendant.'

His prayer for relief follows:

1. That plaintiff be declared to be the owner of the premises described as the NW 1/4 Section 33; SW 1/4 SW 1/4 of Section 28, Township 153, Range 71, Benson County, North Dakota.

2. The the plaintiff be declared to have an estate for the life of Francis Rieger in the premises described as the NW 1/4 of Section 33; SW 1/4 SW 1/4 of Section 28; SE 1/4 SW 1/4 of Section 28; W 1/2 SE 1/4 of Section 21; NE 1/4 SW, 1/4 of Section 21; W 1/2 NW 1/4 of Section 27; NW 1/4 SW 1/4 of Section 27, Township 153, Range 71.

3. That title be quieted in the plaintiff and that the defendant be debarred from asserting any claim superior to that which she actually owns.

4. That defendant render an accounting of monies received from the premises she divested plaintiff of and a money judgment be awarded plaintiff for three times the net income amount derived therefrom.

5. That defendant render an accounting of the net proceeds of property and money inherited from the Vincent Rieger Estate and order defendant make provision protecting plaintiff's proportionate share thereof.

6. That the plaintiff be awarded his reasonable and actual attorney fees for this action against the defendant and that he have such other general relief as to the Court may seem just together with costs and disbursements.

In her answer, Francis denies every allegation of the complaint except those admitted, qualified or explained. She admits that Leo at one time had a remainderman's interest in the NW 1/4 of Section 33 and the SW 1/4 SW 1/4 of Section 28 and that she owns a life estate in that property; she further admits that Leo owned an interest in the land described in paragraph II of his complaint at the time of Vincent Rieger's death; she denies every allegation of paragraph III of the complaint except that which asserts that on the 17th of November, 1954, Leo executed a quitclaim deed of his interest in the estate property to Francis and that on the same date he executed and delivered an assignment relinquishing all of his interest in the Vincent Rieger Estate to Francis; she further asserts that those instruments were executed and delivered by Leo to her in consideration of her conveyance to him of a remainderman's interest in the NW 1/4 of Section 33 and the SW 1/4 SW 1/4 of Section 28, in which she reserved a life estate; she admits that the 480 acres claimed by Leo was leased by her to Leo for a period of time, but alleges that since November 1, 1961, he has had only a tenancy interest in the NW 1/4 of Section 33 and the SW 1/4 SW 1/4 of Section 28 and no interest in the rest of the 480 acres; she asserts that she caused to be served on Leo a notice to quit the SE 1/4 SW 1/4 of Section 28, the W 1/2 NW 1/4 and the NW 1/4 SW 1/4 of Section 27 and that he did quit said premises and has not been in the possession of those premises since November 1, 1961. In her prayer for relief, Francis asks that Leo receive nothing by way of his complaint.

The District Court, sitting without a jury, heard this case on March 13, 1968. On August 26, 1968, the court issued its memorandum opinion and on August 29, 1968, it issued its findings of fact, conclusions of law and order for judgment. From the judgment entered pursuant thereto, Leo appeals. He demands trial de novo in this court.

The pertinent parts of the findings of fact and conclusions of law of the trial court read as follows:

FINDINGS OF FACT

I.

That Vincent Rieger, the father of the plaintiff and the husband of the defendant, died in August 1954, leaving surviving him his wife, Francis Rieger, and seven children, to-wit: John Rieger, Rochus Rieger, Theresa Thompson, Agatha Zacher, Gloria Young, Marie Vetter and Leo Roy Rieger, the plaintiff herein; that at the time of his death the said Vincent Rieger owned 939 acres of land and the defendant Francis Rieger owned 500 acres of land.

II.

That pursuant to mutual agreement of the heirs, the children conveyed to their mother all of their right, title and interest in and to the estate of the said Vincent Rieger and the defendant Francis Rieger gave to the several children a remainderman's interest in said land subject to a life estate in the said Francis Rieger, and gave to certain children certain personal property to balance the division among the children, and that pursuant to this agreement the plaintiff, together with John Rieger, Rochus Rieger and Agatha Zacher, did on the 17th day of November 1954, convey to the defendant Francis Rieger the West Half of the Northeast Quarter, the West Half of the Southeast Quarter, the Northeast Quarter of the Southwest Quarter and the Southeast Quarter of the Southeast Quarter of Section Twenty-one; the Southwest Quarter of the Southwest Quarter of Section Twenty-seven; the East Half of the Northeast Quarter, the...