Williams v. Nierenberg

• Citation: 115 N.W. 510
• Parties: WILLIAMS v. NIERENBERG et al.
• Decision Date: 21 February 1908
• Court: United States State Supreme Court of North Dakota

115 N.W. 510

WILLIAMS

v.NIERENBERG et al.

Supreme Court of North Dakota.

Feb. 21, 1908.

Syllabus by the Court.

Appellant seeks to have respondent adjudged an involuntary trustee of certain real property. The complaint alleges that the property formerly belonged to one Charles Williams, plaintiff's father, who died in March, 1897, the respondent being the plaintiff's mother and widow of the deceased; that nearly a year prior to the death of Charles Williams the property was sold at foreclosure sale to the Middlesex Banking Company, who assigned the certificate of sale to the Farm Land Company, and, no redemption having been made, the latter company acquired title to the premises through such foreclosure proceedings. Respondent thereafter purchased said land from the land company, and she is sought to be charged as an involuntary trustee thereof to the extent of a one-third interest therein, upon the theory that she, as natural guardian of plaintiff, committed a breach of duty in not redeeming from such foreclosure sale. The complaint contains allegations as to fraudulent conduct and breach of duty on respondent's part, but such allegations are mere conclusions of law, and have no effect. The complaint contains no allegation that respondent had any trust funds or any funds in her possession or control with which to effect such redemption, and the complaint is devoid of any tender or offer on plaintiff's part to do equity by reimbursing respondent for any portion of the amount which would have been necessary to effect such redemption, or any portion of the purchase price paid by respondent for said land. Held, that the trial court properly sustained defendant's demurrer to the complaint.

Appeal from District Court, Griggs County; E. T. Burke, Judge.

Action by Fred H. Williams against Eva Nierenberg and Jennie Nierenberg. Judgment for defendants, and plaintiff appeals. Affirmed.A. M. Baldwin, for appellant. Bartlett & Gladstone, for respondent Eva Nierenberg.

FISK, J.

This appeal is from an order sustaining a demurrer to the plaintiff's amended complaint. Such complaint, when stripped of its legal conclusions, is in substance as follows: “That on or about the 21st day of March, 1897, Charles Williams died intestate, leaving to survive him his wife, Eva Williams, one of the above-named defendants, and two minor children, to wit, Jennie Williams, one of the defendants, aged 17, and Fred H. Williams, the plaintiff, aged 15. That said Eva Williams thereafter married, and is now the wife of Theodore Nierenberg, and said Jennie Williams is now the wife of Edward Nierenberg. That said Charles Williams left estate consisting of the N. W. 1/4 of 28-146-59, in Griggs county, of the value of $1,600, which real estate was incumbered by a mortgage executed by said Charles and Eva Williams to the Middlesex Banking Company on December 1, 1888, to secure the payment of $425 and interest thereon, which mortgage had thereafter been extended for five years from December 1, 1893. That prior to the death of said Charles Williams and on or about February 15, 1896, * * * the Middlesex Banking Company began foreclosure of said mortgage, and on April 4, 1896, said real estate was sold by the sheriff of Griggs county under such foreclosure to said banking company for the sum of $540.30, and sheriff's certificate was issued to it, and thereafter assigned to the Farm Land Company. No redemption was made from said sale, and sheriff's deed was issued under said foreclosure on October 9, 1897, to said land company, and on said date defendant Eva Nierenberg purchased said real property from such company for the consideration of $655.25, securing a portion of such purchase price, namely, $400, by a mortgage upon said land, which has since, and on March 4, 1904, been satisfied. Plaintiffprays judgment, first, that plaint...