Selbie v. Graham

• Decision Date: 31 August 1904
• Parties: SELBIE v. GRAHAM.
• Court: South Dakota Supreme Court

100 N.W. 755

18 S.D. 365

SELBIE v. GRAHAM.

Supreme Court of South Dakota

August 31, 1904

Appeal from Circuit Court, Lawrence County.

Action by William Selbie, administrator of James K. P. Miller deceased, against Charles H. Graham and another. Judgment for plaintiff. Defendant Graham appeals. Reversed.

Edwin Van Cise, for appellant. Martin & Mason, for respondent.

HANEY J.

James K. P. Miller died January 13, 1891, leaving a will, by which he devised all his property to William H. Swift, Joseph Swift, and E. B. Beecher, in trust for certain purposes. They qualified as executors. Subsequently the plaintiff in this action succeeded them as administrator. Debts have been proven against Miller's estate to the amount of about $150,000. His estate is insolvent, and, even if anything should be obtained from this litigation, there would not be sufficient property to satisfy the debts. When Miller died the records showed him to be the owner of certain lots in the city of Deadwood. After plaintiff's appointment defendants Graham and Treber brought an action against him as administrator; the above-named trustees, the heirs at law and others interested in the estate alleging that the property involved in the present action was purchased by Miller with funds belonging to Graham, on the latter's account, and pursuant to his instructions; that title thereto was taken by Miller in his own name with intent to convey the same to Graham; that by virtue of the facts stated in the complaint, "and the law in such cases made and provided, a trust resulted in favor of Graham in the property"; and that he was entitled to a deed thereof. Wherefore they prayed that it be decreed that the property was purchased as alleged; that the administrator be required to convey to Graham or to Treber, his grantee; that all persons interested in the estate be declared to have no right, title, or interest therein; and that title be quieted in Graham for the use of his grantee or in such grantee directly. The trustees admitted the allegations of the complaint, and averred their willingness to quitclaim the premises. The guardian of certain minor heirs denied the allegations of the complaint, demanding strict proof on behalf of his wards. The administrator, in effect, admitted the death of Miller and his having the legal title, denied all other allegations of the complaint, and alleged, by way of counterclaim, that the estate was insolvent, and that the property in controversy was needed to satisfy proven debts. Plaintiff's demurrer to the counterclaim having been sustained, and the cause tried without a jury, the administrator, at the close of plaintiff's testimony "moved the court to dismiss the complaint and cause of action in this case upon the ground that the issues in the complaint are not established by the evidence, but, on the contrary, it is established by the plaintiff's evidence that the relation between James K. P. Miller and the plaintiff, Charles H. Graham, was that of debtor and creditor; that he paid interest upon $2,000 borrowed of Mr. Graham, and has repaid the principal before his death; and that both principal and interest have been accepted by the plaintiff during the lifetime of Mr. Miller." The motion was granted, and the following judgment entered: "This cause coming on regularly for trial before the above-entitled court, without a jury, at a regular term of said court held in Deadwood, Lawrence county, South Dakota, on the 17th day of September, 1894, Edwin Van Cise appearing as attorney for the plaintiffs, and Martin & Mason appearing as attorneys for the defendant William Selbie, as administrator of the estate of James K. P. Miller, deceased, and the other defendants having answered to the case, and the plaintiffs, by their counsel, having introduced their proofs, and having rested their case, and thereupon the defendant William Selbie, as administrator, by his counsel, having moved the court to dismiss the complaint and the plaintiffs' cause of action upon the ground that the proofs introduced by the plaintiffs did not establish the cause of action set forth in the complaint, or any other cause of action, in favor of the plaintiffs or either of them, and against the said defendant or either of the defendants; and that the proofs introduced by the plaintiffs showed that the plaintiffs were not entitled to the relief demanded, but that, on the contrary, the relation of debtor and creditor existed between James K. P. Miller, now deceased, and the plaintiff Charles H. Graham, in relation to the money referred to in the plaintiffs' complaint; and that the moneys so advanced were fully repaid, with interest, by the said Miller, to the plaintiff Charles H. Graham, during the lifetime of the said James K. P. Miller; and the court being fully advised, and having granted and sustained the said motion to dismiss, and an order of dismissal having thereupon been duly and regularly entered, and judgment ordered to be entered accordingly: Now, on motion of Martin & Mason, attorneys for William Selbie, as administrator of the estate of James K. P. Miller, deceased, defendant, the court being fully advised, it is hereby ordered, considered, and adjudged, that the plaintiffs' complaint and cause of action be, and the same is hereby, dismissed. It is further ordered, considered, and adjudged that the defendant William Selbie, as administrator of the estate of James K. P. Miller, deceased, have and recover of the plaintiffs, Charles H. Graham and John Treber, his costs and disbursements, *** to be taxed and inserted herein according to law." Another action involving the same issues with respect to other realty having been disposed of in the same manner, and plaintiffs' application for a new trial in each case denied, appeals were taken to this court, where the judgments of the circuit court were affirmed. Graham v. Selbie, 8 S. D. 605, 67 N.W. 831; Id., 10 S.D. 546, 74 N.W. 439; Graham v. Selbie, 8 S. D. 616, 67 N.W. 1151; Id., 10 S.D. 547, 74 N.W. 450. The present action was begun in 1894, but was not tried until January, 1900. In it the administrator alleges that Miller, during his lifetime, was the owner, in possession, and entitled to the possession of the premises in controversy; that on or about August 3, 1891, the defendants wrongfully took possession thereof, and have since retained possession thereof; that the value of the use and occupancy of the premises is $100 per month since said date; that Miller, at the time of his death, left debts and liabilities to the amount of about $150,000; that his estate is insolvent, and that the property and the rents and profits thereof are required to pay such debts. Wherefore he demands judgment for possession of the property, and for the value of its use and occupation at $100 per month since August 3, 1891. After making certain admissions and denials, defendant Graham interposes as an equitable defense that he and Miller were joint and equal owners of the property, though the apparent legal title to the whole thereof stood in Miller's name at the time of his death, and asks to have his rights ascertained and established. He also pleads certain matters on behalf of Treber, his grantee, and asks relief on his behalf regarding valuable improvements made by the latter on the premises in dispute. This action having also been tried without a jury, the court rendered its decision, and entered judgment in favor of the plaintiff, from which defenda...