Smith v. Sec. Loan & Trust Co. of Casselton

• Decision Date: 15 June 1899
• Citation: 79 N.W. 981,8 N.D. 451
• Court: North Dakota Supreme Court
• Parties: SMITH v. SECURITY LOAN & TRUST CO. OF CASSELTON et al.

8 N.D. 451

79 N.W. 981

SMITH

v.SECURITY LOAN & TRUST CO. OF CASSELTON et al.¹

Supreme Court of North Dakota.

June 15, 1899.

Syllabus by the Court.

1. Under the direction of one Oliver C. Dalrymple, said defendant the Cass County Bank by deed of special warranty conveyed to one John C. Dalrymple certain real estate in trust for the use and benefit of the children of said Oliver C. Dalrymple, which children were also the children and minor heirs of a deceased wife of Oliver C. Dalrymple. By its terms, said special warranty deed did not require or authorize said John C. Dalrymple, as such trustee, or otherwise, to do any act, or perform any duty, or exercise any power with respect to said real estate, or with respect to the title thereto. Accordingly, it is held, construing Rev. Codes, §§ 3380-3383, inclusive, that said deed did not vest any title or estate whatever in said John C. Dalrymple, in trust, or otherwise, and that said deed operated under the statute to convey the whole estate, both legal and equitable, to said minor heirs of the deceased wife.

2. Subsequently said John C. Dalrymple, by deed of quitclaim duly executed and delivered, attempted to convey said real estate, in trust for the use and benefit of said minor heirs, to this plaintiff. Held, that no title or interest vested in the plaintiff by said deed of quitclaim. John C. Dalrymple, the plaintiff's grantor, had no estate, title, or interest in the property, and hence could convey none.

3. Plaintiff brings this action as trustee of said real estate, for the use and benefit of said minor heirs, and prays that certain judgments described in the complaint may be adjudged to be clouds upon the title, not liens upon said real estate. The defendant interposed a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The district court overruled the demurrer. Held, that such ruling was error. The plaintiff is not the real party in interest, nor is the plaintiff authorized to bring this action in his own name as a trustee of an express trust, nor can he sue in his own name for any reason mentioned in section 5223 of the Revised Codes.

Appeal from district court, Cass county; W. S. Lauder, Special Judge.

Action by J. M. Smith, trustee for the use of Franklin S. Dalrymple and others, against the Security Loan & Trust Company of Casselton and others. From an order overruling a demurrer to the complaint, defendants appeal. Reversed.Pollock & Scott, for appellants. Newman, Spalding & Stambaugh, for respondent.

WALLIN, J.

In this action the defendants have appealed from an order overruling a general demurrer to the complaint. The only question presented for determination is whether the complaint alleges facts sufficient to constitute a cause of action in favor of the plaintiff. In disposing of the questions involved, it will be necessary to state only the substance of certain allegations of the complaint which we have deemed to be decisive of the result in this court. The controlling facts may be stated briefly as follows: On the 3d day of May, 1891, and long prior thereto, one Oliver C. Dalrymple and Isabella C. Dalrymple were husband and wife, and on said date the wife deceased, leaving surviving, besides her said husband, certain minor children, as her heirs at law. The names of said children are respectively as stated in the title of this action. Subsequently, and on the 8th day of April, 1896, said defendant the Cass County Bank was seised of a fee-simple title in and to certain premises described in the complaint, viz. lots 3 and 4 in block 20 of the First addition to the town of Casselton (now city of Casselton), in this state; and on said last-mentioned date said Cass County Bank, under the direction and instructions of said surviving husband of the deceased wife, conveyed said lots, by a special deed of warranty, to one John C. Dalrymple, a resident of the state of Pennsylvania, and who then was the guardian of certain property of said minor heirs situated in said state of Pennsylvania. With respect to such conveyance, and the conveyance of the same premises subsequently made to the plaintiff, the allegations of the complaint are as follows: “Which said deed and conveyance was so as aforesaid made to said John C. Dalrymple in trust for the use and benefit of the said surviving minor heirs of the said Isabella C. Dalrymple, and not otherwise. That thereafter, and on or about the 13th day of April, 1897, said John C. Dalrymple made, executed, and delivered to this plaintiff a quitclaim deed conveying said lots 3 and 4 in said block 20 of the First addition to Casselton as aforesaid to this plaintiff, which deed and conveyance was so as aforesaid made to this plaintiff in trust for the use and benefit of the said surviving minor heirs of the said Isabella C. Dalrymple, and not otherwise. That the said deed and conveyance was given and made by the said John C. Dalrymple to this plaintiff with the consent and at the instance and request of the said Oliver C. Dalrymple, the father of said minor heirs.” The complaint further states “that this plaintiff, upon the execution and delivery to him of such deed, accepted the trust thereby imposed; and this plaintiff now holds the title to said lots in trust for said surviving minor heirs of the said Isabella C. Dalrymple, and not otherwise.” This action is brought by said J. M. Smith, the plaintiff, as such alleged trustee; and the relief prayed for is a decree declaring certain judgments to be clouds upon the title to said premises, and to remove such alleged clouds by a proper decree.

The primary question raised by the demurrer is whether said J. M. Smith, who sues as plaintiff, can maintain...