Stalting v. Stalting

• Decision Date: 31 December 1927
• Docket Number: 5937
• Citation: 52 S.D. 309,217 N.W. 386
• Parties: ALBERT T. STALTING et al, Plaintiffs and appellants, v. MARY K. STALTING et al, Defendants and respondents.
• Court: South Dakota Supreme Court

52 S.D. 309

217 N.W. 386

ALBERT T. STALTING et al, Plaintiffs and appellants,

v.

MARY K. STALTING et al, Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, McCook County, SD Hon. L. L. Fleeger, Judge File No. 5937—Affirmed Danforth & Barron, Sioux Falls, SD H. Van. Ruschen, Salem, SD Attorneys for Appellants. Bogue & Bogue, Parker, SD Attorneys for Respondents. Opinion filed December 31, 1927 (See 52 SD 318, 217 N.W. 390)

CAMPBELL, P. J.

One Julius Staffing, during and prior to the year 1906, owned and resided, upon the S.½ of section 13, township 101 north, of range 54, in McCook county, S. D., and did not alienate said land prior to his death, except as hereinafter set out. During the year 1906 Julius Stalting was a widower. Shortly thereafter he removed from South. Dakota, and ultimately to Oregon, where he died intestate in 1922. After his removal from South Dakota, he remarried, and, at the time of his death, left as his heirs his widow, Mary K. Staffing, four sons, Chris, Herman, George, and Albert J., and three daughters, Mrs. Mary Kingsley, Mrs. Emma Hoffine, and Mrs. Abbie Collins Chapel. After the death of Julius Stalting, his widow, Mary, by quitclaim deed, transferred all her right, title and interest in his real property to the three sons, Herman, George, and Albert J., in equal shares.

Thereafter two of the sons, Albert J. and George, instituted this action against their coheirs and against Ray Kingsley, Luella Kingsley, O. D. Kingsley, Valura Kingsley, and Iona Kingsley (children of Mary Stalling Kingsley and grandchildren of decedent), and against Merle Meyers Hoffine (son of Emma Stalting Hoffine and grandson of the decedent), alleging the death of the decedent intestate, and his ownership at his death of the said S. ½ of section 13, alleging their heirship, and that by virtue thereof they succeeded each to an undivided one-seventh interest in and to said real estate, and praying to have their said interests quieted in them against the claims of the defendants, etc. To this complaint Chris Stalting filed a separate answer, claiming title to the E.½ of the S.W.¼ of said section 13 by conveyance from Julius Stalting. Abbie Collins Chapel filed her separate answer, claiming title to the N.½ of the S.E.¼ of section 13 by conveyance from Julius Stalting. The Kingsley grandchildren filed their separate answer, claiming title to the W½ of the S.W.¼ of said section 13 by conveyance from Julius Stalting. And the grandchild Merle Meyers Hoffine filed his separate answer, claiming title to the S.½ of the S.E.¼ of said section 13 by conveyance from Julius Stalting. And each of the separately answering defendants above named counterclaimed, seeking adjudication of title in them in accordance with the allegations of their respective answers. Plaintiffs filed their denial by way of reply to said counterclaims, and alleged that the several conveyances relied upon by the defendants were never in fact delivered, but were part of an invalid attempt by the said Julius Stalting to make a testamentary disposition of his property, and upon the issues so framed by the pleadings the trial was had to the court without a jury.

The only witness who testified with reference to the execution and delivery of the conveyances relied upon by the separately answering defendants was one R. H. Armstrong, called in behalf of the defendants, who testified that he had been for more than 30 years president of a bank at Canistota in this state where he resided, and that he was also a notary public; that in 1906 he was acquainted with Julius Stalting, who for a number of years had owned and lived upon the S.½ of section 13, township 101, range 54, about five miles southeast of Canistota; that on February 10, 1906, Julius Stalting came into the bank of the witness at Canistota and told witness that he desired witness to prepare four deeds for him covering four different 80-acre tracts, each constituting a part of said S.½ of section 13, and told the witness that he desired to deed one 80 to his son Chris Stalting, one 80 to his daughter Abbie Collins, one 80 to the children of his daughter Mrs. Kingsley, and the other 80 to the children of his daughter Mrs. Hoffine, and described the different 80’s that he wished to deed to each of said grantees.

The witness further testified that at that time, and on that day, in the presence and pursuant to the request of said Julius Stalting, witness prepared four warranty deeds upon blanks in the customary form for such instruments (which deeds we will hereinafter designate in this opinion as deeds 1, 2, 3, and 4, respectively), each of which deeds was dated 'February 10, 1906. Deed 1 purported to convey from Julius Stalting to Chris Stalting, for “one dollar and other valuable consideration,” the E.½ of the S.W.¼ of said section 13. It was completed, by the witness, and signed in his presence by the grantor Julius Stalting on the day of its date. Deed 2 purported to convey from Julius Stalting to Abbie Collins, for the same named consideration, the N.½ of the S.E.¼ of said section 13, and was likewise completely filled out by the witness and signed by Julius Stalting in his presence on the day of its date. With reference to deed 3 it purported to convey, upon the same named consideration, the W.½ of the S. W.¼ of section 13, and was completely made out and signed by the grantor in the presence of the witness upon the day of its date, excepting that the space provided in the form for the name of the grantee was left entirely blank. Deed 4 purported to convey, upon the same named consideration, the S.½ of the S.E.¼ of said section 13, and was completely made out and signed by the grantor in the presence of the witness upon the day of its date, excepting that, as in the case of deed 3, the space provided for the name of the grantee was left entirely blank.

The witness testified with reference to deeds 3 and 4 that the grantor wished to deed the property described in deed 3 to his grandchildren, being the children of his daughter Mary Kingsley, and wished it to go to them instead of their mother, because he did not want his son-in-law Kingsley to get hold of any of the property, and the names of said grandchildren were not placed in the deed as grantees at the date of its making, and prior to its signing, because the grantor did not remember said names. The grantor stated that he desired the property described in deed 4 to be deeded to his grandchildren, the children of his daughter Emma Hoffine, for the same reason, and the name of the grantee was not inserted in that deed, on the day of and prior to its signing, for the same reason, that the grantor could not remember it. With reference to the names of the grandchildren who were to be the grantees in deeds 3 and 4, respectively, the witness was not entirely positive whether the grantor, Julius Stalting, was later to return and furnish the names to be inserted or whether the witness himself was to secure the names and insert them.

After the signing of the four deeds as above set out, the grantor left each of said deeds with the witness, and instructed the witness, as to each deed, to keep it until after his death, and then deliver it to the grantee. The witness was a notary public at the time said deeds were signed, but he did not on that day place his certificate of acknowledgment upon any of the...