Scott v. Liechti, 8688

Citation15 N.W.2d 1,70 S.D. 89
Decision Date16 June 1944
Docket Number8688
PartiesLOUIS E. SCOTT, Respondent, v. ADOLPH LIECHTI, Administrator of the Estate of Edward Liechti, Deceased, Appellants.
CourtSupreme Court of South Dakota

Appeal from Circuit Court, Charles Mix County, SD

Hon. C. C. Puckett, Presiding Judge

#8688—Affirmed

M. E. Miller, Lake Andes, SD

H. A. Doyle, Frank Biegelmeier, Yankton, SD

Attorneys for Appellants.

Paul A. Kern, Lake Andes, SD

James R. Bandy, Armour, SD

Attorneys for Respondent.

Opinion Filed Jun 16, 1944

RUDOLPH, Judge.

In this action the plaintiff seeks to impress a trust upon certain real property held by the defendant. The facts disclose that in the year 1942 the plaintiff was attempting to purchase from the Federal Land Bank of Omaha a certain farm located in Charles Mix County. The plaintiff was apparently in default upon some other indebtedness owed to the Federal Land Bank and for this reason was not qualified as a purchaser of the land. The plaintiff was well acquainted and friendly with one Edward Liechti. Plaintiff and his wife, together with a Mr. Dunn who represented the Federal Land Bank, consulted with Mr. Liechti and as a result of this consultation a contract for the sale and purchase of the Charles Mix County farm was entered into between Mr. Liechti and the Federal Land Bank. Mr. Liechti made the necessary original payment called for under the terms of the contract. Edward Liechti died suddenly in September 1942 and the defendant, Adolph Liechti, was appointed administrator of his estate. Upon the refusal of the administrator to recognize that Edward Liechti held this farm in trust for the plaintiff, this present action was commenced.

The controversy centers around the alleged agreement between Edward Liechti and the plaintiff purportedly made at the time the plaintiff together with his wife and Mr. Dunn consulted with Edward Liechti and following which meeting the contract was entered into between Mr. Liechti and the Federal Land Bank. The plaintiff offered and there was received in evidence testimony of the conversation had between the plaintiff and Edward Liechti in which conversation the plaintiff’s wife and Mr. Scott participated. As a result of this testimony the trial court found in substance that the plaintiff explained to Edward Liechti that because of the delinquencies owing to the Federal Land Bank, he could not purchase this Charles Mix County farm as he desired and that he requested Edward Liechti to loan him a sufficient amount of money to make the required down payment on this farm and that the contract for its purchase be taken in Mr. Liechti’s name until such time as the plaintiff repaid Mr. Liechti the loan, at which time Mr. Liechti would assign the contract for the purchase of the land to the plaintiff. The court found that Mr. Liechti agreed to this arrangement, loaned the plaintiff the amount of money required and entered into a contract to purchase the land with the Federal Land Bank. The court further found the amount due Mr. Liechti under this alleged agreement and this amount was deposited with the court for the benefit of the defendant. Based on these findings the court ordered that the defendant administrator assign the contract of purchase to the plaintiff and that the money deposited with the court be paid to the defendant. The defendant has appealed.

The defendant first contends that it was error to permit the plaintiff to testify to the conversations he had with Mr. Liechti, who is, and was at the time the action was commenced, deceased. With the revision of our Code in 1939, the old statute, Sec. 2717, R. C. 1919, which excluded a party from testifying as to any transaction with or statement by the deceased was omitted from South Dakota Code 1939. The governing rule is now SDC 36.0104 which provides:

“In actions, suits, or proceedings by or against the representatives of deceased persons including proceedings for the probate of wills, any statement of the deceased whether oral or written shall not be excluded as hearsay. provided that the trial judge shall first find as a fact that the statement was made by decedent, and that it was in good faith and on decedent’s personal knowledge.”

This rule permits a party or a person having an interest in the subject of the action adverse to the deceased, as well as any other person, to testify to any statement of the deceased whether oral or written, the only qualification is that the trial judge shall first find as a fact that the statement was made by the decedent, and that it was in good faith and on decedent’s personal knowledge. Obviously, before the trial judge can make such determination he must hear the testimony that is offered which relates to the alleged statement and the making thereof by decedent. This case was before the court without a jury, and implicit in the findings of the court is the...

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