Riley v. Riley
| Decision Date | 10 November 1900 |
| Citation | 84 N.W. 347,9 N.D. 580 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pembina County; Sauter, J.
Action by Catherine A. Riley against John Riley and others. From a judgment dismissing the action, plaintiff appeals.
Affirmed.
W. J Kneeshaw and Tempeton & Rex, for appellant.
Burke & Vick, for respondents.
WALLIN J. YOUNG, J., did not sit in the case; C. J. Fisk, judge of the First Judicial District, sitting by request.
This action is brought to annul and cancel a deed of record purporting to convey three separate pieces of land. The case was tried without a jury, and the trial court entered judgment dismissing the action. Plaintiff appeals from the judgment, and demands a retrial of the entire case in this court.
The facts embraced in the record which are uncontroverted may be stated briefly as follows: The plaintiff is the widow of one William Riley, who departed this life on the 8th day of October, 1896. Plaintiff intermarried with the deceased in the month of January, 1893. The defendants, except the administrator and the guardian, are the heirs at law of the deceased and his children by a former wife. The deed in question purports to convey three pieces or parcels of real estate, situated in the county of Pembina. The land first described in the deed is an undivided one-half of a certain quarter section of land. This description is written out at length in words, with numbers in brackets added. The second and third parcels are not described at length in words, but are described as follows: The deed describes the plaintiff as party of the first part, and said William Riley, deceased, as party of the second part, and purports to have been made in consideration of one dollar in hand paid to the party of the first part. It bears date on March 2, 1895, and was acknowledged by the plaintiff on that day before one Paul Johnson, a justice of the peace. This deed was delivered to the deceased ,and was found in his barn some months after his death, and was subsequently recorded. The deed, in all its parts, is in the handwriting of William Riley, deceased, and the plaintiff concedes that the same was signed and delivered by her voluntarily. The plaintiff's contention, as stated in the brief of her counsel, is, substantially, that at the time the deed was executed and delivered by the plaintiff the only tract of land described in the same was the undivided half of a certain tract, containing 160 acres of land, and that such description was written out at length in words as well as in numbers, and that subsequently said deed was altered without plaintiff's knowledge or consent, by inserting in the deed a description of two other parcels of land owned by the plaintiff, and which are hereinbefore referred to and described. Defendants answer the complaint ,and deny that the deed has been altered or added to as alleged in the complaint, and the issue of fact thus joined is the decisive question in the case. Upon this issue the trial court found adversely to the plaintiff, and the judgment entered below recites that the action was dismissed "upon the failure of the plaintiff to establish the facts set up in her complaint by clear and satisfactory evidence." Some of the evidence offered by the plaintiff in support of her contention is direct and positive in its character. The plaintiff testified in her own behalf, and her testimony was to some extent corroborated by other witnesses who testified for the plaintiff. The original deed was put in evidence, and the same by consent of counsel was presented to this court for its inspection, and counsel for appellant claims that the deed bears evidence on its face of having been altered after its execution and delivery; but this court, unaided as it is by the testimony of experts in handwriting, is unable to say, after an examination of the instrument, that the same appears on its face to have been altered after its delivery.
Excluding the deed from consideration, the testimony bearing upon the matter of the alleged alteration of the instrument is wholly oral. The plaintiff swears positively that she read the deed before signing it, and that but one tract of land was described in it at the time she signed the same, and further, that she never authorized any one to insert the descriptions in the deed which describe the other two parcels in question. One Robert Baskin was sworn in plaintiff's behalf, and testified in substance that long after the...
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