Stone v. Stone, 5959.

• Decision Date: 14 November 1931
• Docket Number: No. 5959.,5959.
• Citation: 61 N.D. 563,238 N.W. 881
• Parties: STONE v. STONE et al.
• Court: North Dakota Supreme Court

61 N.D. 563

238 N.W. 881

STONE

v.STONE et al.

No. 5959.

Supreme Court of North Dakota.

Nov. 14, 1931.

Syllabus by the Court.

In an action to quiet title to land, where claimant's right is based upon a deed said to have been executed and delivered to him and afterwards lost, the burden of proof is upon the claimant to show by strong and satisfactory evidence, clear and certain, that the deed was executed with the formalities required by law.

In the case at bar it is conceded the title to the property involved was, at one time, in the plaintiff, and is yet in the plaintiff, unless she executed the deed as alleged by the defendant. The evidence is examined, and it is held the proof fails to substantiate his claim that the plaintiff deeded the property to him.

Appeal from District Court, McHenry County; C. W. Buttz, Judge.

Action by Ellen Stone against Evan Clifford Stone, by E. C. Stone, his guardian ad litem, and another, etc., wherein complaint of defendant named in a separate action was adopted as an answer and the actions consolidated and tried as one. Judgment for the defendants, and the plaintiff appeals.

Reversed and rendered.Nestos, Herigstad & Stenersen, of Minot, for appellant.

F. J. Funke, of Minot, for respondent E. C. Stone.

BURR, J.

This is an action brought to quiet title in the plaintiff to certain land. The defendant Evan Clifford Stone, by E. C. Stone, his guardian ad litem, commenced an action to quiet title in him. The complaint in this latter case was adopted as an answer in the former case; the two actions being consolidated and tried as one. The land involved is known as the Odegaard or Luschenk's land.

Evan Clifford Stone is the son of E. C. Stone and Ellen Stone, the former wife of E. C. Stone, and was 18 years old at the time of trial.

The defendant admits that “on or about the 7th day of March 1928, * * * Ellen Stone was the owner of record” of the land involved; but alleges “that the said real estate * * * was acquired by E. C. Stone * * * but that as a matter of convenience, the title thereto was taken in the name of Ellen Stone who is the mother” of the defendant. He alleges that his father brought an action against the mother, the plaintiff herein, for divorce and “that a property settlement was made and entered into between the said E. C. Stone” and the plaintiff, that “said property settlement so made was afterwards incorporated and made a part of the decree of divorce which was in said action granted to the said E. C. Stone.”

He further alleges that, “as a part of the property settlement it was agreed by and between the said E. C. Stone” and Ellen Stone. the premises described should be transferred to him, and that thereafter his parents made and executed a warranty deed conveying the premises to him, that this deed was delivered to the father, for and on his behalf, “but that said warranty deed was lost or mislaid and that notwithstanding a diligent search * * * the said deed so made and executed as aforesaid has not been found.”

The case was heard in June, 1930. In September, 1930, the plaintiff moved the court for leave to introduce further testimony; the motion being based upon the affidavit of the plaintiff and the affidavit of one of her counsel. Later, other counsel for the plaintiff asked permission to introduce further testimony. The motion was denied, and on November 14, 1930, the court made findings of fact and order for judgment in favor of the defendant herein.

The plaintiff thereupon moved the court for a new trial, specifying as grounds newly discovered evidence, insufficiency of the evidence to justify the decision of the court, and surprise, basing the same on numerous affidavits, which with the counter affidavits are referred to in the order. The trial court denied the motion, and from the judgment entered and from the order denying the motion for a new trial the plaintiff appeals, demanding a trial de novo.

The defendant bases his right to the land upon an alleged agreement in the property settlement to deed the land to him.

It is undisputed the plaintiff was the owner of the land involved at the time of the divorce proceedings referred to. The writing known as the property settlement is in evidence. Nowhere therein is there any reference whatever to the land involved, nor any provision that this land should be deeded to him by the plaintiff or any one else. Neither is there any agreement on the part of Ellen Stone to use any of her property to support the children of the marriage, though there is a provision therein relative to the custody of the children and an agreement on the part of E. C. Stone to pay to Ellen Stone $12,000 in cash and certain sums per month for the maintenance of the children. There is no agreement on the part of Ellen Stone to convey any property to any of the children; but she does agree to relinquish all claim for alimony and all “rights in any real or personal property” owned by E. C. Stone.

Both Dr. Stone and his former wife, the plaintiff, testified in the case. Neither of them was asked whether such agreement was a part of the property settlement but had been inadvertently omitted from the writing; and neither of them testified that it was. It makes provision for the custody and support of the defendant and the other children, their education and residence, and the father's liability in case of possible illness. The lawyer who drew the writing says he had several conversations with both husband and wife with reference to the settlement, and “in none of these conversations was there ever any mention made of the fact that she was to deed the land to any one. This land was never talked of as being re-deeded to any one or never discussed.” There is no claim made by any one that the property settlement was partly in writing and partly oral. It seemed to be conceded that the writing known as the property settlement, called “Exhibit 2,” was the full and complete agreement between the parties to the divorce proceedings as to property rights and the control of the children. Hence it is clear that there is absolutely no proof showing any agreement between Dr. Stone and his wife, at the time of the divorce proceedings, that the plaintiff was to deed this land to the son.

Another significant matter with reference to this is that the property settlement is dated November 20, 1927, and E. C. Stone, the husband, says the divorce was granted in December, 1927. (The affidavits used on the motion for a new trial shows he was in error as to this.) The husband of the...