Tostenson v. Ihland
| Decision Date | 19 December 1966 |
| Docket Number | No. 8321,8321 |
| Citation | 147 N.W.2d 104 |
| Parties | Thomas TOSTENSON, Plaintiff and Appellant, Caroline Steger, Alma Rasmussen, and Olga Wold, Plaintiffs, v. Edward IHLAND, Mae Anderson, August L. Johnson, and to all persons unknown who have or claim any interest in the real property described in the complaint, Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. When agency is denied, the burden of proving it by clear and specific proof is on the party asserting it.
2. Agency is the relationship which results when one person, called the principal, authorizes another, called the agent, to act for him in dealing with third persons. § 3--01--01, N.D.C.C.
3. Employment of an attorney to prevent the sale of land in one estate and the subsequent employment of that attorney as the attorney of the administrator in the estate of one of the heirs of the first estate does not make the attorney an agent of one of the heirs of the first estate for the sale of his interest in the property of the first estate.
4. Agency cannot be proved by showing the declarations of the alleged agent.
5. An attorney must act within the scope of his proper duties and powers. § 27--13--02(2), N.D.C.C.
6. An agreement for the sale of real property, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing subscribed by the party sought to be charged. § 9--06--04(4), N.D.C.C.
7. An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law or by an instrument in writing subscribed by the party disposing of the same or by his agent thereunto authorized by writing. This does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof. § 47--10--01, N.D.C.C.
8. A purported contract of sale entered into with an alleged purchaser by an agent who has only verbal authority from the owner is void.
9. The mere payment of money consideration by a buyer generally is not sufficient justification for enforcing an oral contract to convey land.
10. The acts relied upon for partial performance, in order to be sufficient to relieve an oral agreement from the effect of the statute of frauds, must be such as to be incomprehensible unless related to the contract to convey an interest in land.
11. The burden of proof rests on one who seeks to have a contract specifically performed to establish the terms of a contract upon which he relies which are essential to a decree of specific performance.
12. When the vendee of an oral contract for the sale of real estate seeks to avoid the impact of the statute of frauds by showing partial performance, he must by clear and definite proof establish a contract that possesses all the elements and features necessary to the specific enforcement of any agreement, except the written memorandum required by the statute.
13. Improvements made on land, in order to constitute part performance of an oral contract for its sale, must be valuable, substantial, and permanent.
14. For reasons stated in the opinion we find that the defendant failed in his burden of proving that he was entitled to have an alleged oral contract specifically performed.
15. For a person who has made an admission by his declarations or conduct affecting title to property to be estopped from asserting his right to the title, it must appear, first, that he was apprised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title but of the means of acquiring such knowledge; and, fourth, that the other party relied directly upon such admission and will be injured by allowing its truth to be disproved.
16. For reasons stated in the opinion we find that the defendant failed in his burden of proving that the doctrine of equitable estoppel applies in this case.
17. One who relies upon a lost deed to sustain his title to real estate must establish its original existence, its loss, and its material parts by clear and convincing evidence.
18. Because of the discrepancies between the testimony of a witness and that of the defendant concerning the form of a deed, the parties who secured its execution, and the witnesses to its signing, we find that the existence of the deed was not proved by clear and convincing evidence and accordingly hold that the defendant failed in his burden of proving title through a lost deed.
19. Because the defendant failed to prove that he adversely possessed real estate for ten years under color of title or that he adversely possessed it for twenty years under claim of title, his claim of adverse possession failed.
20. In the instant case costs cannot be assessed against the plaintiff because he is the prevailing party on appeal.
Johnson, Milloy & Eckert, Wahpeton, for appellant.
Lewis & Bullis and McMichael & Haugen, Wahpeton, for respondents.
Two actions were commenced in the District Court of Richland County.
The first action was brought by Alma Rasmussen and Olga Wold against Edward Ihland to set aside quitclaim deeds which had been given by the plaintiffs to the defendant, to impose an implied trust, and to secure a reconveyance of the property.
The second action was brought by Thomas Tostenson, Caroline Steger, Alma Rasmussen, and Olga Wold against Edward Ihland and others to determine title to real estate, to secure a partittion thereof, and to obtain an accounting.
The cases were consolidated for trial by agreement of the parties. The district court, acting without a jury, ordered judgment in favor of the defendants. Only the plaintiff Thomas Tostenson appeals from the judgment entered on this order. Trial de novo is demanded.
The basic issue in this appeal is whether title to an undivided 1/8 interest in the real property in this action is in the plaintiff Thomas Tostenson or in the defendant Edward Ihland.
It is undisputed that when Gunne Tostenson, a resident of Richland County, died on September 27, 1939, he was the owner of the property described in Mr. Tostenson's complaint; that, because he died intestate without a surviving wife, his eight children, among whom was the plaintiff Thomas Tostenson, became entitled to his estate; that each of the said children was decreed an undivided 1/8 interest in the real estate in the final decree of the County Court of Richland County dated October 10, 1942; that Rudolph Tostenson, one of the eight children, died December 11, 1943; and that in the probate of his undivided 1/8 interest in the real estate in contest here, Rudolph's 1/8 interest was sold by the administrator of his estate to the defendant Edward Ihland for the sum of $650.
In the probate of Rudolph's estate Thomas was served the citation of the hearing of the petition for letters of administration by the sheriff of Cass County. The citation of the hearing of the petition for the sale of the real estate (the 1/8 interest of the decedent in the property formerly owned by his father, Gunne Tostenson) was not mailed to Thomas, because, as indicated by the affidavit of Mr. Forbes, the attorney for the administrator of the estate, Thomas's postoffice address was unknown.
The defendants contend that in 1946 each of the Gunne Tostenson heirs sold his or her interest in the real estate to the defendant Edward Ihland, subject to a mortgage in the defendant August L. Johnson in the sum of $3,000; that each of the said persons executed a deed conveying his or her interest in the property to Mr. Ihland; that all of said deeds have become lost or mislaid; that the plaintiff Thomas Tostenson is now estopped from denying the title of the defendant Edward Ihland or the mortgage of the defendant August L. Johnson; and that he is barred by the statute of limitations or through laches from asserting any claim to the property.
The following paragraphs of the trial court's finding are relevant to the issues in this appeal:
V.
That the defendant Edward Ihland purchased the real estate hereinbefore described, from the plaintiffs and all of them, through their attorneys, Forbes & Forbes of Wahpeton, North Dakota, on April 3, 1945; that in so purchasing said real estate the defendant Edward Ihland deposited with the firm of Forbes & Forbes the sum of Two Thousand Two Hundred Dollars ($2,200.00) on April 3, 1945, and assumed a mortgage against said premises, held by the defendant, August L. Johnson, in the sum of Three Thousand Dollars ($3,000.00); that said mortgage was a first lien against said land at the time of the purchase.
VIII.
That a judgment against Thomas Tostenson was docketed July 27, 1935, in the amount of $738.08. This was considerably in excess of the value of his one-eighth (1/8) interest and he would not have been able to receive any money unless he had satisfied said judgment.
IX.
That the plaintiff Thomas Tostenson has never at any time made any payments on said judgment.
X.
That Mr. Vernon Forbes was a member of the firm of Forbes & Forbes of Wahpeton, North Dakota, in April of 1945, was representing the plaintiffs, and all of them, at that time and sold the land for the plaintiffs to Mr. Edward Ihland and received full payment therefor on behalf of the plaintiffs.
XI.
That Mr. Vernon Forbes was acting as an agent for the plaintiffs at the time the sale was consummated.
XII.
That the defendant, Edward Ihland, has fully established an oral purchase contract between himself and the plaintiffs and has completely performed his part of the contract by paying the full purchase price and taking possession of the property.
XIII.
That since April of 1945 when the defendant took possession of said property under the...
To continue reading
Request your trial
-
Swanson v. Swanson
...v. Christianson, 343 N.W.2d 375 (N.D.1984) (addressing the requirements to prove a lost deed in a quiet title action); Tostenson v. Ihland, 147 N.W.2d 104 (N.D.1966) (explaining the burden of proof in actions to sustain title to real estate by virtue of a lost deed); Stone v. Stone, 61 N.D.......
-
Kluver v. PPL Mont., LLC
...v. Turner, 92 Idaho 306, 442 P.2d 442 (1968); Guel v. Bullock, 127 Ill.App.3d 36, 82 Ill.Dec. 264, 468 N.E.2d 811 (1984); Tostenson v. Ihland, 147 N.W.2d 104 (N.D.1966); Bennett v. First Natl. Bank of Glens Falls, 146 A.D.2d 882, 536 N.Y.S.2d 591 (1989). We are in accord with the propositio......
-
Nelson v. Christianson, 10492
...in 1966. This was before the repeal of Sec. 28-27-32, NDCC, which authorized trials de novo on appeals to this court. See Tostenson v. Ihland, 147 N.W.2d 104 (N.D.1966). That case, as well as the earlier holdings on the question, required that the evidence of a lost deed be "clear and convi......
-
City of Fargo v. Malme
...v. Nesvig, 2006 ND 66, ¶ 38, 712 N.W.2d 299; Lapp v. Reeder Pub. Sch. Dist. No. 3, 491 N.W.2d 65, 71 (N.D.1992); Tostenson v. Ihland, 147 N.W.2d 104, 118 (N.D.1966). In the district court, Malme claimed $80 for the costs of the filing fee with the clerk of district court and $26 for the she......