Truman v. Dakota Trust Co.
| Decision Date | 08 February 1915 |
| Docket Number | 1905 |
| Court | North Dakota Supreme Court |
Rehearing denied February 25, 1915.
Appeal from the District Court of Cass County, Pollock, J.
Action in claim and delivery to recover the possession of a diamond ring and certain certificates of deposit. Judgment for defendant and intervener. Plaintiff appeals.
Reversed.
Reversed and remanded.
Barnett & Richardson, for appellant.
Plaintiff was not guilty of laches in bringing this action. The action was brought just as soon as plaintiff learned that the intervener claimed the property in question. Before gaining such knowledge, no action was necessary. Further than this there is no evidence or claim or prejudice to anyone, nor has either of the other parties changed his position or rights by reason of delay. Such change is necessary to establish laches. The same reason applies to the contention that plaintiff was estopped to claim the property in question. Turpin v. Dennis, 139 Ill. 274, 28 N.E. 1065; Tynan v. Warren, 53 N.J.Eq. 313, 31 A. 596; Coleman v. Whitney, 62 Vt. 123, 9 L.R.A. 517, 20 A 322; Ex-Mission Land & Water Co. v. Flash, 97 Cal 610, 32 P. 600; Luke v. Koenen, 120 Iowa 103, 94 N.W. 278.
Under the directed verdict, it must be conceded that the certificates and ring in question were purchased with plaintiff's money, only with the consent of appellant as a means of keeping such money, and as an investment.
No title passed to the wife at any time, for the reason that there is no testimony showing any intention or desire or purpose to change the title from the husband to the wife. Title to personal property may only be changed as follows: (1) By original acquisition; (2) by transfer by act of the law; (3) by transfer by act of the parties. 22 Am. & Eng. Enc. Law, 752, § 4.
The fact that the trust company was keeping the property for intervener is immaterial. Flatner v. Good, 35 Minn. 395, 29 N.W. 56.
Nor is the fact that appellant never had possession of the certificates material. Miller v. Warden, 111 Pa. 300, 2 A. 90.
Testimony as to conversations of deceased with third persons is wholly inadmissible, and especially is this true when such conversations were had in the absence of plaintiff, deceased's husband, plaintiff offered testimony as to conversations had between him and the deceased wife. He had the statutory right to do so. But this did not open the door to defendant, nor did it give the right to defendant to offer testimony of third persons as to conversations had with plaintiff's deceased wife, in his absence. Neither is such testimony rebuttal, because it relates to other and different matters than those embraced within plaintiff's testimony as to plaintiff it is mere hearsay. Frank v. Thompson, 105 Ala. 211, 16 So. 634; 40 Cyc. 2347, note 8.
Watson & E. T. Conmy, for respondents.
The plaintiff is precluded and estopped from appealing from the judgment herein, because he has taken and retained benefits under said judgment, acquiesced in same, and has proceeded in a legal way to enforce a claimed right which could only be created through such judgment. The trial court holds that the property sued for here was the property of the estate of Carrie L. Truman. The plaintiff acquiesces in and accepts benefits under such judgment, when he asks for exemptions out of this specific property. Tyler v. Shea, 4 N.D. 377, 50 Am. St. Rep. 660, 61 N.W. 468; Williams v. Williams, 6 N.D. 269, 69 N.W. 47; Tuttle v. Tuttle, 19 N.D. 748, 124 N.W. 429; Bennett v. Van Syckel, 18 N.Y. 481; Liebuck v. Stahle, 66 Iowa 749, 24 N.W. 562; Priestly v. Shaughnessy, 10 La.Ann. 455; McGrew v. Grayston, 144 Ind. 165, 41 N.E. 1027; Garner v. Garner, 38 Ind. 139; Manlove v. State, 153 Ind. 80, 53 N.E. 385; Ault v. Gill, 14 Ky. L. Rep. 525.
The plaintiff, by his conduct and actions inconsistent with his claims in this action, waived his right of appeal herein and waived any error of the trial court, and is estopped to prosecute this appeal, and same should be dismissed. Murphy v. Spaulding, 46 N.Y. 556; Gordon v. Ellison, 9 Iowa 317, 74 Am. Dec. 353; Joseph Goldberger Iron & Steel Co. v. Cincinnati Iron & Steel Co. 153 Ky. 20, 154 S.W. 374; Bennett v. Van Syckel, 18 N.Y. 481; Knapp v. Brown, 45 N.Y. 207; Marvin v. Marvin, 11 Abb. Pr. N. S. 97; Carll v. Oakley, 97 N.Y. 633; Baylies, New Trials & Appeals, pp. 18, 19; Samuel v. Samuel, 59 Kan. 335, 52 P. 889.
Third persons can testify to conversations had with the deceased wife of plaintiff, and to her statements, contrary to the testimony of plaintiff. Braithwait v. Aiken, 2 N.D. 57, 49 N.W. 420; Hutchinson v. Cleary, 3 N.D. 270, 55 N.W. 731; Regan v. Jones, 14 N.D. 591, 105 N.W. 613; First Nat. Bank v. Warner, 17 N.D. 76, 114 N.W. 1087, 17 Ann. Cas. 213; 40 Cyc. 2348.
Under the contract between plaintiff and wife as to the deposit of the money, if after her death there was anything owing to plaintiff thereunder, his remedy was to file a claim against her estate and proceed to collect it. Rev. Codes 1905, § 8099; Cottonwood County Bank v. Case, 25 S.D. 77, 125 N.W. 298.
An action in claim and delivery will not lie against the estate. In order to maintain such action, plaintiff must show title, and an immediate right of possession. Replevin will not lie to recover money or scrip unless it is so marked as to be capable of identification. But this action is to recover certificates of deposit--the legal title to which is in Carrie L. Truman and Lottie A. Becker. Wheeler v. Allen, 51 N.Y. 42; Spalding v. Spalding, 3 How. Pr. 297; Seymour v. Van Curen, 18 How. Pr. 94; Sager v. Blain, 44 N.Y. 449; Pilkington v. Trigg, 28 Mo. 96; Leete v. State Bank, 141 Mo. 584, 42 S.W. 927; Turner v. Langdon, 85 Mo. 44, and cases cited; Stonebraker v. Ford, 81 Mo. 532; 34 Cyc. 1359; Graves v. Dudley, 20 N.Y. 76; Bowker Fertilizer Co. v. Cox, 106 N.Y. 555, 13 N.E. 943; Dowdy v. Calvi, 14 Ariz. 148, 125 P. 876.
An equitable assignee of a chose in action cannot maintain replevin to recover possession of it against the legal owner and holder. Clapp v. Shepard, 2 Met. 127; 34 Cyc. 1354; Wadsworth v. Owens, 21 N.D. 255, 130 N.W. 935; Cobbey, Replevin, § 2; 7 Lawson, Rights & Rem. § 3642; Flannigan v. Goggins, 71 Wis. 28, 36 N.W. 846; Hooker v. Latham, 118 N.C. 186, 23 S.E. 1004; Pasterfield v. Sawyer, 132 N.C. 258, 43 S.E. 799; s. c. 133 N.C. 44, 45 S.E. 524; Bridgers v. Ormond, 148 N.C. 375, 62 S.E. 423.
The plaintiff has been guilty of such laches in bringing this action as to preclude and estop him to maintain it now. State ex rel. Madderson v. Nohle, 16 N.D. 168, 125 Am. St. Rep. 628, 112 N.W. 143; Jones v. Subera, 25 S.D. 223, 126 N.W. 253; Kenny v. McKenzie, 25 S.D. 485, 49 L.R.A. (N.S.) 775, 127 N.W. 597; Dickerson v. Colgrove, 100 U.S. 578, 25 L.Ed. 618; "Estoppel or Waiver," 39 Cyc. 519; Jones, Ev. § 74, p. 74; "Estoppel," 16 Cyc. 813.
Statement of facts by
This is an action in claim and delivery which was commenced in November, 1912. Plaintiff seeks to recover from the defendant Dakota Trust Company two certificates of deposit of the face value of $ 2,131.74 and one diamond ring of the stipulated value of $ 400. A complaint in intervention is filed by one Lottie A. Becker, in which she claims to be the owner and entitled to the possession of the property in question individually and as executrix of the estate of Carrie L. Truman, the deceased wife of the plaintiff. The case was tried to a jury, and at the close of the entire case a verdict was directed in favor of the intervener as such executrix and of such trust company. The motion for such directed verdict was based upon the four grounds: First, that the possession of the property could not be recovered in an action in claim and delivery under the proof in the case; second, that there was no testimony tending to show that the plaintiff was the owner; third, that as the certificates had been issued in the name of the deceased and of the intervener for a long time prior to the death of the deceased, the plaintiff was guilty of laches, and was estopped to claim the property in this action; fourth, that the plaintiff having failed to file his claim against the estate, his right of action was barred. The appeal before us is from the judgment entered upon the verdict so directed.
It also appears from the record that after the trial of the action in the district court, the appellant, George H. Truman, filed in the county court of Cass county and in the proceedings for the distribution of the estate of the deceased a claim in which he asked to be allowed $ 1,500 exemptions as the surviving husband of the said Carrie L. Truman, deceased, and that thereafter and in due course this claim was brought on for hearing, but was disallowed by the court, and that later and on the 20th day of September, 1913, an order was entered in the district court dismissing an appeal from such order and ordering that the action of the county court refusing to allow petitioner's claim for exemptions be in all things approved and sustained. The record also shows that outside of the certificates of deposit and the ring mentioned there was about $ 575 worth of property in the estate, while the expenses and indebtedness incurred by the administratrix amounted to more than $ 650.
The plaintiff also testifies that he and Carrie L. Truman were married in 1882; that Carrie L. Truman died in December 1911; that she had no property of her own, and that though she engaged at different times in business enterprises, no profit was made therein except, perhaps, when she was working in the millinery...
To continue reading
Request your trial