Zundel v. Zundel
| Decision Date | 12 April 1979 |
| Docket Number | No. 9531,9531 |
| Citation | 278 N.W.2d 123 |
| Parties | Edwin ZUNDEL, Plaintiff and Appellee, v. Joseph M. ZUNDEL, Defendant and Appellant, and Elmer J. Zundel, Minnie Rossetti, Albert C. Zundel, Esther L. Shaw, August A. Zundel, Leslie Zundel, Deceased, and all persons unknown claiming any estate in, or lien or encumbrance upon, the property described in the Complaint, Defendants and Appellees. Civ. |
| Court | North Dakota Supreme Court |
Roy A. Holand, LaMoure, for defendant and appellant.
Lashkowitz Law Offices, Fargo, for plaintiff and appellee; argued by Senior Law Student William Kennelly and Herschel I. Lashkowitz.
Edwin Zundel brought an action in LaMoure County District Court seeking the imposition of an implied trust over certain lands of which his brother, Joseph Zundel, has been the record title owner. Edwin contended the real estate was purchased in 1941 under a contract for deed in which Joe was named as vendee, but that the purchase price was paid by their mother, Justina, now deceased. The district court determined Joe held the realty in trust and ordered it be divided between the seven surviving Zundel brothers and sisters.
The land in question, approximately 440 acres located in LaMoure County, was originally acquired by the parties' father, Gottfried Zundel. Prior to his death in 1931, Gottfried transferred the land to his wife, Justina, who continued to own the land and operate the farm located thereon until the mid-1930's when the Federal Land Bank acquired it following foreclosure of a mortgage on the land and a subsequent deed. After the foreclosure sale, Justina and her family continued to reside on and operate the farm under a lease arrangement with the Federal Land Bank.
In 1941 Joe entered into a contract for deed with the Federal Land Bank for the purchase of the land. The contract provided for a purchase price of $4,000 with a $500 down payment and one-third of each year's crops grown on the land be paid to the Federal Land Bank until the balance due on the contract was retired. The contract also provided it was subject to the terms of the lease with Justina which was assigned to Joe.
At the time Joe entered into the contract for deed in 1941, only he, his mother, and three of his brothers (August, Albert, and Edwin) remained on the farm. August moved from the State in the fall of 1941; Albert left to serve in the armed services in the spring of 1942; and Edwin attended high school until the spring of 1942, at which time he started farming with his mother and his brother Joe. Evidence was introduced at trial that the three older brothers and sisters (Minnie, Elmer, and Esther) periodically returned to the farm during this time and subsequent thereto to help on the farm. The length of the visits and extent of the help rendered, however, was in dispute.
The down payment for the purchase of the property was made by check written by Joe on his mother's account. Testimony was offered that money in this bank account, as well as money used later to pay for the remainder due on the contract for deed, was obtained through the farming efforts of Justina. Joe testified, however, the money in the bank account was partially his as he deposited money from his farming operations into his mother's account and did not open his own account until some time after the purchase of the land. Joe stated he was authorized to write checks on his mother's account and frequently did so in the payment of farm expenses. A bank officer testified the practice of children writing checks on their parents' bank accounts was not uncommon during that period of time.
Four of the Zundel brothers and sisters testified that although Justina purchased the property in question, she wanted legal title placed in Joe's name to avoid payment of the prior mortgage. They testified Justina feared if the land was purchased in her name she might become liable on the approximate $12,000 mortgage that was foreclosed on in 1937. They stated that because August and Albert were planning to leave the farm at the time of the purchase, Justina wanted the land in Joe's name as he was the eldest son remaining on the farm. They further testified the Zundel family discussed the purchase of the land and the particular purchase arrangement both before the contract was entered into and later when the children returned to the farm for visits.
Joe contended he was the sole negotiator for the purchase of the land, and although his mother approved of the purchase she did not desire to purchase the land herself because if Joe left the farm Justina feared she might lose it again without his help. Joe testified he used income not only from the land in question but also from other land he farmed to complete the purchase in a shorter time period than provided for under the contract for deed. Payment under the contract was completed and the deed was issued to Joe in 1943.
In approximately 1943, Joe was married and moved off the home farm to a house a short distance away. Justina continued to reside on the farm, together with Edwin and Albert, who returned from the service 100% Disabled.
After the purchase of the land in 1941, it, along with other lands owned or leased by Justina and Joe, were farmed through the joint efforts of Joe, Justina, and Edwin.
During a part of the 1950's Joe and Edwin farmed much of their land, as well as that of their mother, in a somewhat informal partnership arrangement under which equipment, expenses, and profits were shared. In 1957 the informal partnership arrangement ended and the land in issue in this case was farmed by Edwin with him receiving three-fourths of the income and Justina receiving one-fourth. This arrangement appears to have lasted up until 1964, when Justina died. Edwin testified after his mother's death he, Joe and Albert arrived at an arrangement concerning the 440 acres where Albert would be allowed to reside on that tract of land on which the buildings were located, while Edwin and Joe would each get a quarter section of the remaining land and a cash settlement would eventually be made to the other brothers and sisters. Edwin would be allowed to farm the land and keep seven-eighths of the income, and Joe was to get the remaining one-eighth of the income. (Joe's one-eighth share was to represent a one-fourth share from the quarter of land he was eventually to receive spread over both quarters to be farmed by Edwin.) Edwin's testimony indicated neither a cash settlement to the remaining brothers and sisters nor a final settlement to divide the land was arrived at because Joe kept putting the issue aside when approached with it.
Joe testified that following his mother's death he agreed to rent the land in question to Edwin. Joe stated although he received some money from this rental arrangement, the money he received did not equal the amounts Edwin was to pay under the agreement despite repeated requests for the money by Joe. He stated it was Edwin's failure to make complete payments, along with other incidents, that eventually led to a decision by Joe to no longer allow his brother to farm the land.
This case was commenced by issuance and service of a summons and complaint dated 29 July 1977. An amended complaint was filed by Edwin on 31 January 1978 seeking a division of the land among the seven living Zundel children. Joe filed an amended answer in which he cross-petitioned seeking the court to quiet title in his name and requiring Edwin to make an accounting for the use of the land for the years 1958 through 1977. Following a bench trial, the district court made, among others, the following pertinent findings of fact:
The district court's conclusions of law stated in part:
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