Shuck v. Shuck

• Decision Date: 09 November 1950
• Docket Number: No. 7206,7206
• Citation: 77 N.D. 628,44 N.W.2d 767
• Parties: SHUCK v. SHUCK et al.
• Court: North Dakota Supreme Court

Page 767

44 N.W.2d 767

77 N.D. 628

SHUCK v. SHUCK et al.

No. 7206.

Supreme Court of North Dakota.

Nov. 9, 1950.

Syllabus by the Court.

1. Chapter 28-03 NDRC 1943, authorizing the District Court to appoint guardians ad litem to take care of the interests of infants in pending litigation is not in conflict with Section 111 of the Constitution of North Dakota giving the county court exclusive jurisdiction over the appointment of guardians. A guardian ad litem is the representative of the court in the particular action and not a general guardian.

2. Under the evidence in the case at bar where plaintiff and defendants all claim an interest in land derived from a common source and the only issue on the trial is the validity and superiority of their claims it is not necessary to trace the title beyond the common source.

3. Delivery is essential to the validity of a deed.

4. Whether a deed has been delivered to an infant grantee depends on the intent of the grantor and may be shown by the circumstances in connection therewith.

5. The evidence is examined and it is held that there was no actual or constructive delivery of the deed under which plaintiff claims.

6. Any transfer of the homestead by a recipient of old age assistance after the recording of the homestead statement by the Public Welfare Board of North Dakota as provided by Section 50-0707 NDRC 1943, and without its consent is null and void.

T. F. Murtha, Dickinson, for plaintiff and appellant.

Floyd B. Sperry, Golden Valley, H. L. Malloy, Halliday, for defendants and respondents.

GRIMSON, Judge.

This is an action brought to quiet title to Lot Seven (7) Ree's Addition to Killdeer, Dunn County, North Dakota.

Plaintiff is a minor fifteen years of age. The District Court appointed his mother, Stacia Shuck, guardian ad litem to bring the action.

The defendants question the authority of the District Court to appoint a guardian ad litem. They claim that, because Section 111 of the Constitution of North Dakota gives the county court exclusive jurisdiction in the appointment of guardians, Chapter 28-03, NDRC 1943, giving the District Court authority to appoint guardians ad litem is unconstitutional.

The language used in Section 111 of the Constitution grouping together 'the appointment of administrators and guardians, the settlement of accounts of executors, administrators and guardians, sale of lands by executors, administrators and guardians' indicates that a general guardianship is meant. The duties of the general guardian are to take care of the person or property or both of a minor, make inventory of his property and reports to the court and to have general management of all affairs of the minor. The guardian ad litem has no such duties to perform. He is the representative of the court to look after the interests of a minor in a particular litigation pending. 43 C.J.S., Infants, § 107 page 275. He neither has charge of the person nor property of the minor and is not accountable to the court except for the faithful discharge of his duties. Richter v. Leiby's Estate, 107 Wis. 404, 83 N.W. 694. He occupies the position that the 'next friend' did under the common law.

'When an infant appears as a party to an action pending before the court he becomes a ward of the court and it is its duty to see that his interest is protected.' 27 Am.Jur. 833, Sec. 114. 'The power to appoint a guardian ad litem is inherent in every court of justice.' 27 Am.Jur. 840, Sec. 120.

The offices of guardian ad litem and general guardian are separate and distinct. There is no conflict between Section 111 of the Constitution giving the county court general jurisdiction in the appointment of guardians and Chapter 28-03, NDRC 1943, authorizing the District Court to appoint a guardian ad litem.

The plaintiff claims title by warranty deed from one Nick Shuck and asks that the defendants set forth their claims against the property and that the validity thereof be determined. The defendant, Mathilda Kukla, sets forth her claim to the property by virtue of a quit claim deed from said Nick Shuck. The defendant, the Public Welfare Board, sets forth a claim against the property by virtue of old age assistance furnished Nick Shuck and his wife, Rose Shuck, while they occupied the property as a homestead.

The attempt to serve Arnt Ree by publication failed because the statute for service by publication was not strictly followed in that no sheriff's return as provided in Subsection 4 of Sec. 28-0620, NDRC 1943, was filed. Roberts v. Enderlin Investment Co., 21 N.D. 594, 132 N.W. 145. Under the view we take of this case he is not a necessary party. His interest in the property, if any, is not involved in this action under the issues formed by the pleadings.

The other defendants default. The only apparent interest of such defaulting defendants is by way of their being heirs of Nick and Rose Shuck.

Thus all of the parties to this action derive whatever right and title they claim to this property from Nick Shuck. All that they seek is to have the validity and superiority of their respective rights determined.

On the trial in District Court some evidence was introduced by the defendants in an effort to show fatal defects in the chain of title prior to the time Nick Shuck obtained a deed to this property. This was objected to by the plaintiff on the ground, amongst others, that its admission would also affect defendants' title. The objection was overruled. The District Court held that evidence fatal to the title of Nick Shuck to the property and that, therefore, plaintiff secured no interest in the property by virtue of his deed from Nick Shuck. The action was, thereupon dismissed with prejudice. The plaintiff appeals asking a trial de novo.

The plaintiff and appellant assigns as error the admission of this evidence and the dismissal of the action on the findings based thereon. He argues that the only issue between the parties to this action is which one of them has superior right to Nick Shuck's interest in the property whatever that may have been.

The District Court's decision was based on the case of Company A. First Regiment National Guard Training School v. State of North Dakota, 58 N.D. 66, 224 N.W. 661. In that case the action was dismissed as to the plaintiff because it was found to have no interest in the property. The plaintiff's claim of interest, however, did not arise from the same source as that of the defendants. The action itself was not dismissed but continued to determine the rights of the defendants under their claims which were not affected by the grounds which voided plaintiff's claims. The facts differentiate that case from the one at bar.

For the purpose of determining the validity and superiority of claims in issue in the case at bar it is not necessary to trace the derivation of title any further than the common source, Nick Shuck. He had prima facie interest in the property by virtue of a warranty deed and possession sufficient to give anyone who succeeded to his interest the right to maintain an action to determine the adverse claims here in issue. Sec. 32-1701, NDRC 1943. See Annotation in 36 A.L.R. 712. All that was necessary was to show a better title from the common source. That would not determine the title as against Arnt Ree but it would limit the right to bring an action for that purpose to the party who prevails in this action. If in this action any one of the parties were allowed to defeat Nick Shuck's title he would in the same breath defeat his own title and this action would be absolutely in vain. Both for convenience and justice the determination of claims arising from a common source should be permitted without an attack on the title of that common source. That is what the parties here ask for.

Sec. 32-1710, NDRC 1943, provides that: 'The court in its decision shall find the nature and extent of the claim asserted by the various parties, and shall determine the validity, superiority, and priority of the same.' Where the parties trace their title to a common source the 'plaintiff need not show a title good as against the whole world, but only as against the defendant, and the one who has the superior title or equity must prevail.' 51 C.J. 174, Sec. 76.

In Sec. 49, 44 Am.Jur. 39, the principle is laid down that 'While the complainant may establish ownership of the property by deraigning title from the government that is not necessary where both complainant and defendant claim title through a common source.' In Charles v. White, 214 Mo. 187, 112 S.W. 545, it is said that an action under the statute to determine title to real estate cannot be defeated by showing title which both parties claim was defective. In Williams v. Sands, 251 Mo. 147, 158 S.W. 47, it is held that 'Where both plaintiff and defendant claim * * * a common source of title * * *, the only question is who has the better title from such common source.'

In Gilliam v. Bird, 30 N.C. 280, 49 Am.Dec. 379, the court says: 'Whenever in an action to recover land both parties claim (title) under the same person, neither of them can deny his right, then, as between them, the elder is the better title and must prevail.' In Howard v. Twibell, 179 Ind. 67, 100 N.E. 372, 373, there was a deed missing in the chain of title prior to the title of the common source. The court says: 'As to this matter it is sufficient * * * that both parties claim through a common source of title, a common grantor in possession'. See also Graton v. Holliday-Klotz Land & Lumber Co., 189 Mo. 322, 87 S.W. 37; Stewart v. Cary, 220 N.C. 214, 17 S.E.2d 29, 144 A.L.R. 1287; 51 C.J. 174; People's Bank v. West, 67 Miss. 729, 7 So. 513, 8 L.R.A. 727, 728; York v. James, 62 Wyo. 184, 165 P.2d 109, 162 A.L.R. 730; Rouse v. Paidrick, 221 Ind. 517, 49 N.E.2d 528; Patterson Land Co. v. Lynn, 27 N.D. 391, 147 N.D. 256.

In an annotation in 7 A.L.R. 866, it is said of this rule that it 'is one both of convenience and...