Rosenquist v. Harris

Decision Date15 February 1956
Docket NumberCiv. No. 2727.
Citation138 F. Supp. 21
PartiesPerry E. ROSENQUIST, Plaintiff, v. V. V. HARRIS and V. V. Harris, Jr. (Harris Foundation, Incorporated, substituted for V. V. Harris, deceased), Defendants.
CourtU.S. District Court — District of South Dakota

R. H. Points, Crosby, N. D., and Milton K. Higgins (of the firm Higgins & Donahue), Bismarck, N. D., for plaintiff.

E. J. McIlraith, Minot, N. D., for defendants.

REGISTER, District Judge.

This action was commenced in the District Court of Divide County, Fifth Judicial District, State of North Dakota, by the plaintiff to determine adverse claims to the North Half of Section 26, and the Northeast Quarter of Section 17, in Township 163 North, of Range 96 in Divide County, North Dakota. The cause was subsequently duly removed to this court, jurisdiction being based on diversity of citizenship. The case was tried to the Court at Minot, North Dakota, on December 16, 1955. During the trial it was ordered that Harris Foundation, Incorporated, be substituted as a party defendant in place of V. V. Harris, now deceased, pursuant to stipulation of counsel.

Plaintiff alleged in his original complaint, dated February 17, 1953, that he is the owner in fee simple (less an undivided one-half interest in the minerals, including oil, gas and hydrocarbons therein) of said North Half of Section 26, and the owner in fee simple of said Northeast Quarter of Section 17; that the defendants claim an undivided three-eights and one-eighth interest, respectively, in and to the oil, gas and other minerals under said land by virtue of a quitclaim deed from one Vernon J. Drabek; that the claims of said defendants arise out of and rest upon a mineral deed dated June 8, 1950, bearing the names of the plaintiff and his wife as grantors, to Vernon J. Drabek, as grantee, which deed purports to convey an undivided one-half interest in such oil, gas and minerals to said grantee; that "the said mineral deed to Vernon J. Drabek was never signed, executed or delivered by the Plaintiff and the same is a complete and absolute forgery and that the Defendants have no right or interest in the said land or in the minerals thereof for the said reason". The purpose of this action is to declare said latter deed to be null and void and a forgery, and the interests claimed by defendants resting thereon likewise declared null and void.

Defendants by their answer in effect allege ownership of such three-eighths and one-eighth interest, respectively, in such oil, gas and minerals; assert that they are bona fide purchasers thereof for value from said Vernon J. Drabek; and deny the allegations concerning forgery.

On September 8, 1953, the deposition of plaintiff was taken at Minot, North Dakota. Thereafter, and under date of November 12, 1953, an Amended Complaint was prepared and thereafter filed herein; this Amended Complaint is similar to the original Complaint but contains these additional allegations: "That the said deed to Vernon J. Drabek was never acknowledged by the plaintiff nor his wife and that no consideration was delivered therefor; and that if plaintiff's signature or that of his wife appears thereon the same were procured by fraud through the substitution of papers or in some manner unknown to the plaintiff and the said deed is void as a result thereof", and, "That the said deed was incomplete when signed by the plaintiff and his wife, if it was signed by them, according to plaintiff's best information and belief". An Answer was duly filed thereto, which Answer in part asserts: "That these answering defendants are innocent bona fide purchasers for value of the said one-half (½) interest as hereinbefore set forth and in reliance upon the record title as disclosed by the records in the office of the Register of Deeds, Divide County, North Dakota, and that no privity exists between these answering defendants and said Vernon J. Drabek except as purchaser and grantor".

Prior to plaintiff's acquisition of title to the lands involved, the properties were owned by Oscar Rosenquist, father of the plaintiff. The father owned the fee title to the Northeast Quarter of Section 17, aforesaid, but his ownership to said North Half of Section 26 was less an undivided one-half interest in the oil, gas and minerals, such one-half interest having been reserved by his grantor. Upon the death of Oscar Rosenquist, plaintiff became the owner by inheritance of an undivided one-half interest of his father's estate in said lands, and later the plaintiff purchased the other one-half interest of the father's estate from his (plaintiff's) brother.

It appears that one Albert Makee, a businessman residing in Noonan, North Dakota, was, in June, 1950, securing from local landowners oil and mineral leases, and conveyances of minerals. Some days prior to June 8, 1950, Mr. Makee, who was personally acquainted with the plaintiff, and the plaintiff had a talk on the streets of Noonan. Plaintiff testified that such talk concerned an oil and gas lease only, and that Mr. Makee offered to pay for such lease 10 cents per acre plus a $10 bonus, making a total of $58. Mr. Makee testified, as witness for the defense, that such talk concerned not only a lease, but an undivided one-half interest in minerals — that he agreed to pay ten cents per acre for the lease, and the $10 for the mineral deed. Thereafter Mr. Makee procured a memorandum of title from the Divide Abstract Company, dated June 3, 1950, and then, in his own office, prepared an oil and gas lease in favor of one Frank R. Lee as lessee, a mineral deed of and to an undivided one-half interest in and to all of the oil, gas and other minerals in and under and that may be produced from said lands, in favor of Vernon J. Drabek, of Oklahoma City, Oklahoma, grantee, and a receipt for $58. On the evening of June 8, 1950, Mr. Makee went to the home of the plaintiff in Noonan, North Dakota. Testimony as to the occurrences in the plaintiff's home at that time is not in accord. The only persons present were the plaintiff, his wife, and Mr. Makee. Mr. Makee arrived in the early evening, just after the lights had been lit; plaintiff and his wife had eaten their evening meal; the dishes were on the table; one corner of the table was cleared, and the papers were put on this cleared portion of the table by Mr. Makee. According to the testimony of plaintiff, four papers, which had been clipped together, were put on the table by Mr. Makee. The top one was the oil and gas lease. Plaintiff read this in its entirety. Plaintiff states that he believed the other papers were copies of the top one — that Mr. Makee had so stated, and informed him that these were necessary and one copy would later be sent to him. Plaintiff denied that he knew he was signing, or intended to sign, a mineral deed; however, he admitted that the signature of himself and of his wife on the original deed appeared to be genuine, and that the only time the deed could have been signed by them was at the time and place stated. Plaintiff also, at the same time and place, signed a receipt. In his deposition plaintiff testified positively that at the time of his signing the receipt, it was in blank — that he signed such receipt in blank because Mr. Makee told him it would be for an insurance policy in which plaintiff's oldest son would be the insured. (Mr. Makee was also an insurance agent.) At the time of trial, plaintiff testified that the receipt was filled in when he signed it. Plaintiff further testified that after the top paper was signed, Mr. Makee kept his hand on the upper lefthand corner; after each paper was signed, it was turned up and back, and the next paper was signed; that he could see about the lower two-thirds of the papers underneath; that he did not read any part of the other papers; that he made no effort to read them; that he did not ask Mr. Makee to read the papers below the top one; and, when, while he was on the witness stand, his attention was directed to the very noticeable difference in the physical appearance of the lease and deed, plaintiff admitted that his failure to notice the difference was due to his own lack of care and his trust in Mr. Makee.

Plaintiff further testified that just after the papers had been signed in his said home Mr. Makee paid him $10 in currency, and that he understood the balance due $48 represented the premium on the life insurance policy; that he never received any more money, but the policy was delivered about two weeks thereafter. In general, the testimony of plaintiff's wife with reference to the happenings at their home corroborated that of the plaintiff. Plaintiff, in his deposition, testified positively that at the time of signing the papers Mr. Makee did not pay him any money.

Mr. Makee, as witness for the defendants, testified that prior to preparing the papers he and plaintiff had talked about both the lease and mineral deed; that the lease, deed and receipt were fully filled out by him in his office and then taken to the home of plaintiff on the evening aforementioned; that at such time he had only three papers — the lease, the deed and the receipt; that he did not keep his hand on the papers, but thinks the lease and deed were handed to the plaintiff together; that after plaintiff signed the papers his wife did likewise; that he then gave to plaintiff $58 in currency, and that this transaction had nothing to do with any insurance policy. Makee further testified that he took the acknowledgement, as notary public, of the plaintiff and his wife, had the deed witnessed by two persons, and then sent the deed to the grantee, Mr. Drabek. It appears that at the time of securing this deed, Mr. Makee was acting for Mr. Drabek — that the money paid for the deed came from Mr. Drabek, and that in the purchase Mr. Makee was acting as agent for the grantee.

The testimony concerning alleged fraud and misrepresentation is in sharp conflict. Mr. Makee...

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