Tarpinian v. Wheaton
| Decision Date | 23 February 1962 |
| Docket Number | No. 9933,9933 |
| Citation | 79 S.D. 473,113 N.W.2d 472 |
| Parties | Mike TARPINIAN, Jacquelyn Tarpinian and Palmer Evenson, Executor of the Estates of Halvor Evenson, Deceased, and Julia Evenson, Deceased, Plaintiffs and Respondents, v. Violet WHEATON, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Potter & Crabb, by John G. Potter, Rapid City, Francis J. Parker, Deadwood, for defendant and appellant.
Whiting, Lynn, Freiberg & Shultz, Rapid City, for plaintiffs and respondents.
A contract for deed, executed by Hal D. Wheaton and Violet Wheaton, husband and wife, as vendors, obligated the purchasers named therein to pay the purchase price of the property, title to which was vested in the husband, to the husband and wife. Thereafter the husband was adjudged bankrupt, and the plaintiffs above named purchased whatever interest remained in the husband at a sale in bankruptcy. Thereupon the plaintiffs instituted this action to determine adverse claims to the property and named the husband and wife as defendants. In her answer and counterclaim the wife asserted an undivided one-half interest in the property. After issues joined, the matter was tried to the court and resulted in findings, conclusions and judgment adverse to the wife. She was brought the cause here for review.
The property originally involved is commonly referred to as the 'Hill City Zoo' and is located in Pennington County, South Dakota. It consists of approximately 104 acres of land, the structures and equipment located thereon, a stock of variety merchandise, and about 153 different species of animals. This property and business had been owned and operated by the husband for a period of years. Violet Wheaton became connected with the business several years before their marriage which occurred in June 1954. When she first was employed, she acted as a saleslady in the variety store. Eventually she became active in every branch of the business, including buying of merchandise, care of the animals, and in training others to feed and care for the animals. In off season she cooked for the help. After their marriage, the Wheatons established their home in an apartment located on the property and it became and continued to be their homestead. The record reveals that money borrowed by Wheaton from Mrs. Wheaton before and after their marriage, which was used in the business, was eventually evidenced by a single promissory note in the principal sum of $2265.
In 1956 negotiations were initiated looking towards a sale of the business and property to Ivan and Gladys Pray. Both of the Wheatons testified to conversations between themselves during the period of these negotiations in which it was said he would engage in the real estate business with his half of the proceeds and she would open a variety store with her half of those proceeds. According to their testimony these conversations were carried on in part before the Prays at the Zoo and also in the office and presence of the attorney who represented the Wheatons in contracting the sale. That testimony stands undisputed.
The contract for deed is dated July 31, 1956. It is executed by both of the Wheatons, who are designated therein as vendors and are described as husband and wife. It provides for immediate transfer of the personal property by bill of sale, for possession of the real property by the purchaser, and for a purchase price of $90,000, payable $5,000 in cash, $15,000 by the transfer by the purchasers to the vendors of three Rapid City residence properties, and the balance in $7,000 annual installments with interest. It also provides that the
'Vendors shall execute, concurrently with the execution of this Agreement, a warranty deed, with documentary stamps thereon, conveying said real property to Vendees, and said warranty deed together with an original of this contract shall be placed in escrow in the First National Bank of the Black Hills, Rapid City, South Dakota, office and payments as herein provided to be made by Vendees to Vendors shall be made at said bank to the credit of Vendors, * * *.'
At a later date, both the husband and wife, under the designation of vendors, joined in a supplementary agreement with the vendees reducing the purchase price.
On the 16th day of October 1956, Ivan Pray and Gladys Pray as grantors, by their warranty deed, conveyed one of the Rapid City residence properties described in the contract of Hal D. Wheaton and Violet Wheaton as grantees, and on January 10, 1957 by two like deeds they conveyed the other two Rapid City residence properties to Hal D. Wheaton and Violet Wheaton as grantees.
No claim is made that Hal D. Wheaton was insolvent at the time of the execution and delivery of the described contract for deed, or that he was thereby rendered insolvent. The evidence indicates he was then a man of considerable wealth. However, during the following year he was involved in an automobile accident as the outgrowth of which there developed litigation resulting in judgments by the plaintiffs above named and against him in the aggregate principal sum of $95,000. Thereafter he filed a voluntary petition and was adjudged bankrupt. As indicated the title of plaintiffs rests on a conveyance by Wheaton's trustee in bankruptcy. The parties have stipulated that plaintiffs acquired only such interest in the property as remained in Hal D. Wheaton.
The trial court found:
'That the defendant, Violet Wheaton, has introduced no competent evidence showing any right, title, or interest in her to the hereinbefore described real and personal property'
and entered judgment decreeing that she be
'forever debarred, enjoined, and foreclosed from claiming or asserting any right, title, or interest in, * * * said real and personal property adverse to the plaintiffs or to those who may hereinafter claim through or under the plaintiffs and title thereto is hereby quieted in said plaintiffs.'
The central assignment of Violet Wheaton questions the sufficiency of the evidence to support the findings, conclusions and judgment of the trial court.
On the one hand there is no contention in this court that the record establishes a transfer of legal title to the...
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...title to the land. Church v. Smith, 39 Wis. 492; Bartz v. Paff, 95 Wis. 95, 69 N.W. 297.' The thread is pursued by Tarpinian v. Wheaton, 79 S.D. 473, 113 N.W.2d 472 (1962), which articulated the precept thus at It is settled that a vendor, after execution and delivery of such a contract for......
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