author: SATHRE, Judge.

text:
    BRAND et al. v. BRAND et al.
    No. 7416.
    Supreme Court of North Dakota.
    Aug. 4, 1954.

      Paul Campbell, Minot, for plaintiffs and appellants.
    Halvor L. Halvorson, Jr., Minot, for defendants and respondents.
   SATHRE, Judge.

This is an action brought by the plaintiffs John J. Brand, Ervin O. Hellickson, also known as Erwin O. Hellickson, C. R. Verry and Hattie L. Verry to quiet title to the following described land.

Northeast quarter (NEJ4) of the Southeast quarter (SEJ4) of Section thirty (30) and West half (WlTa) of Southwest quarter (SWJ4) and Southeast quarter (SE(4) of Southwest (SWJ4) of Section twenty-nine (29); all in Township One Hundred Fifty-four (154) N. Range eighty-one (81) W.

The complaint is in the statutory form to determine adverse claims and alleges that the plaintiffs are entitled to a decree quieting title in them to the land described. The defendants answered alleging in substance that they, William P. Brand, Roy R. A. Brand and Frank Brand, and the plaintiff John J. Brand, are brothers and sole heirs at law of Joseph J. Brand, deceased; that on or about January 1943 the plaintiff John J. Brand bought from the estate of said Joseph J. Brand the land described in the complaint, in which sale the estate retained all of the oil and mineral rights and that such oil and mineral rights were not sold to the plaintiff John J. Brand; that such sale was duly reported to the court and an order was duly made confirming said sale and that the plaintiff received and accepted a deed to said land retaining in the estate all of the oil and mineral rights in said land, and that the order confirming said sale was duly recorded in the office of the register of deeds of said Ward county; that such sale was made and the price paid for said land was based upon the fact that the oil and mineral rights were reserved to the estate. The answer further alleged that each of the defendants is entitled to an undivided one fourth interest in said oil and mineral rights. Judgment is then demanded quieting title in each of the defendants to an undivided one fourth interest in said oil and mineral rights.

The case was tried before the Hon. A. J. Gronna, Judge of the District Court of Ward County, North Dakota.

Judgment was entered in favor of the defendants and the plaintiffs appealed from the judgment.

The record contains no settled statement of the case, no transcript of evidence taken at the trial and no stipulation of facts. The appeal must therefore be deemed to have been taken upon the judgment roll. It is well settled that there can be no review of the findings without a settled statement of the case and that the facts found by the trial court must be accepted as true. The question for determination by this court is therefore whether the conclusions of law made by the trial court are warranted by the facts as found. Brandenburg v. Phillips, 18 N.D. 200, 119 N.W. 542; Cary v. Kautzman, 78 N.D. 875, 53 N.W.2d 99.

It is the contention of the plaintiffs that the findings of the trial court do not support the conclusions of law, order for judgment and judgment. The findings of fact are substantially as follows:

That the plaintiff John J. Brand and the defendants William P. Brand, Roy R. A. Brand and Frank Brand are brothers and the sole heirs at law of Joseph J. Brand, deceased, and that their interests and estates in and to the land described in the complaint are derived through a common source; the title, rights and interests of Joseph J. Brand, deceased, and that the defendants Roy R. A. Brand and William P. Brand were appointed administrators of his estate; that on September 10th, 1942 the plaintiff John J. Brand executed his appearance and waiver of service of citation and notice in the matter of the estate of Joseph J. Brand, deceased. In this waiver he stated that he was one of the respondents in the estate of said deceased; that he thereby entered his appearance in the proceedings therein and waived service of all citations and notices which would otherwise be required to be served on him in the course of the administration of the estate of said deceased, especially waiving the service of any citation or any notice of hearing on petition for the appointment of administrator, consenting that the estate be administered and final decree of distribution entered therein without the service of any further notice or citation and especially waiving service of any citation or notice fo‘r the hearing of any petition for the sale or mortgaging of the real property of the said estate which might be presented to the court in the course of the administration thereof.

That on the 20th day of October 1942 the administrators of the estate of Joseph J. Brand, deceased, William P. Brand and Roy R. A. Brand presented their petition to the county court for an order of sale of the real property belonging to the estate of said Joseph J. Brand, deceased. Thereafter and on October 28, 1942 the county court of Ward County made and entered its order of license to sell said described real estate belonging to the estate of said Joseph J. Brand, deceased. The order of sale provided that the administrators should file an additional bond in the sum of $1,000 and authorized the said administrators to sell said real property either in one parcel or in subdivisions, as to the said administrators should seem most beneficial to said estate, at private sale to the highest bidder for cash. The notice of sale was published as provided by law. The petition for license to sell, the order of sale and the published notice of sale contained no provision for reserving to the estate the oil and mineral rights. Thereafter and on the 21st day of December 1942 the plaintiff John J. Brand made his offer in writing to buy the real property advertised for sale by the administrators, his bid being in writing and is as follows:

“I hereby bid the sum of $1000.00 and satisfaction of my $600.00 claim filed against said estate as purchase price of the NE^SE^, of Sec. 30; wy2swy4> SEy4 of Sec. 29, Twp. 154, North Rge. 81 West together with all lumber and building material stored upon said premises. This bid is made for clear title to said property.
Dated at Minot, North Dakota, December 21, 1942.”

Thereafter and on the 9th day of January 1943 the administrators of the estate of said Joseph J. Brand, deceased, made their report of sale and their return of their proceedings under the order of the county court theretofore made for the sale of the land belonging to the estate of said deceased. The report of sale was in the usual form and stated that the land was sold to John J. Brand for the sum of $1,000, he being the highest and best bidder and the said sum of $1,000 being the highest and best bid. The report of sale stated that the grantors reserved all oil and mineral rights in said lands. On the same day January 9th the county court made its order confirming the sale as reported by the administrators, including the reservation of all oil and mineral rights in said lands. The order further provided and directed that a proper and legal conveyance of said real estate be executed to the purchaser by the said administrators.

On the 11th day of January 1943 the administrators of the estate of Joseph J. Brand, deceased, William P. Brand and Roy R. A. Brand executed an administrators’ deed to the purchaser John J. Brand in which deed they reserved all oil and mineral rights in said land, which deed was thereupon delivered to said purchaser John J. Brand and on the 21st day of January 1943, he filed it for record in the office of the register of deeds of Ward County.

On the 9th day of April 1943 the administrators of the estate of said Joseph J. Brand, deceased, filed their final report and account of their administration of the estate of said deceased in which they listed as residue of said estate certain promissory notes and cash. However no mention was made in the final report and account of any reservation of the mineral rights in the land sold to the plaintiff John J. Brand.

On the 8th day of April-1943 the plaintiff John J. Brand and the defendants William P. Brand, Roy R. A. Brand and Frank Brand filed in the county court their agreement in writing, as sole heirs of Joseph J. Brand, deceased, in which they agreed that the final report of the administrators of the estate of said deceased filed therein be allowed, and that the cash on hand and the equity in the promissory notes inventoried in said estate be distributed as provided by the recommendation of the administrators in their said final report and that the said estate then be closed; that thereupon the county court made and entered its final decree of distribution. The reservation of the mineral rights as shown in the report of sale, the order of the county court confirming the sale and in the administrators deed was not shown in the final decree of distribution. The decree listed only the promissory notes and cash as reported in the final report.

On the 16th day of July 1948 the plaintiff John J. Brand sold the land to Ervin O. Hellickson under a contract for deed. Thereafter he assigned the contract for deed to C. R. Verry and Hattie L. Verry and executed to them a deed of conveyance.

On July 16, 1952 the defendants Roy R. A. Brand and William P. Brand without notice to John J. Brand or to the other heirs presented a petition to the county court praying for leave to reopen the estate of the said deceased for the purpose of amending the final decree theretofore entered and to make a distribution to the heirs of the mineral rights retained by said estate at the sale of the land to the plaintiff John J. Brand. On the same date July 16, 1952 the county court of Ward County made its order reappointing the said petitioners as administrators of said estate, issued letters of administration to them and authorized them to make a proper report and account including in the residue of the estate the oil and mineral rights reserved to the estate, and on the 17th day of July an amended final decree of distribution was made and entered, distributing an undivided one fourth of the oil and mineral rights to each of the said William P. Brand, John J. Brand, Frank Brand and Roy R. A. Brand forever.

On the 21st day of July 1952 John J. Brand, Ervin O. Hellickson, C. R. Verry and Hattie L. Verry brought this action against William P. Brand, Roy R. A. Brand and Frank Brand defendants.

Upon the foregoing findings of fact the court made its conclusions of law and order for judgment that the defendants William P. Brand, Roy R. A. Brand and Frank Brand were entitled to judgment quieting title in each of them to an undivided one-fourth interest in and to the oil and mineral rights in the land described in plaintiffs’ complaint, and further, that the plaintiff John J. Brand had an interest in said real property consisting of the surface thereof and a one fourth undivided share of the oil and mineral rights therein subject to the right, title, interest and estate of the plaintiffs Ervin O. Hellickson, C. R. Verry and Hattie L. Verry. Judgment was entered accordingly.

It is contended by the plaintiffs that under the proceedings had in the county court for the sale of the property belonging to the estate of said deceased the plaintiff John J. Brand was entitled to the oil and mineral rights. This claim is based upon the fact that in making his offer of purchase of the said described land he specified that it was made on condition that he receive clear title thereto and that the petition for leave to sell, the published notice of sale and the order of the court authorizing the sale contained no provisions for reservation of the oil and mineral rights. Plaintiffs contend therefore that upon the facts stated it was the duty of the administrators to transfer to John J. Brand all right, title and interest in the land including the oil and mineral rights. They contend further that the county court was without jurisdiction to confirm the sale with the reservation of the mineral rights.

The first question to consider is as to what interests in the land involved were actually transferred to John J. Brand in the proceedings for the sale thereof. Three of the brothers had testified that it was the understanding that the oil and mineral rights were to be reserved to the estate. The report of sale, the order confirming the sale, and administrators deed reserved the oil and mineral rights.

As purchaser, John J. Brand paid the purchase price, accepted the deed and filed it for record in the office of the register of deeds. He took possession thereunder and continued in possession for five years and until he sold the land to Ervin O. Hel-lickson. He did not at any time during the conduct of the proceedings for sale of the land, or otherwise, object to the reservation of the oil and mineral rights. He consented to the sale proceedings and had knowledge of all of the material facts and circumstances in connection therewith.

In 34 C.J.S., Executors and Administrators, § 611, pp. 588 and 589, it is stated:

“Confirmation of an administrator’s or executor’s sale, provided it is not void, renders it an enforceable contract and divests the title of the heirs. After the court obtains jurisdiction, all nonjurisdictional irregularities and defects between the acquisition of jurisdiction and the order of confirmation are cured”.

And in Skachenko v. Sweetman, 77 N.D. 502, 43 N.W.2d 683, 686:

“A proceeding for the sale of real property of an intestate in the course of administration is an independent proceeding in rem. Shane v. Peoples, 25 N.D. 188, 141 N.W. 737; 34 C.J.S., Executors and Administrators, § 556, p. 504; 21 Am.Jur. 566. It is instituted by petition addressed to and filed with the court. See Section 8544a21, 1925 Supplement (Sec. 30-1905 NDRC 1943). If the petition conforms to the statutory requirements the court thereby acquires jurisdiction.’'

We are satisfied that the county court had jurisdiction of the parties and the subject matter. The failure of the administrators to disclose the reservation of the minerals until they made the report of sale, was at the most an irregularity and did not go to the jurisdiction of the court. The report was confirmed including the reservation; the reservation was made in the administrators deed and as _ the record shows it was accepted without objection by the grantee, John J. Brand. He had entered his appearance in writing as provided by Section 30-1907 NDRC 1943, specifically consenting to the proceedings for the sale of the real property of the estate without service upon him of any notice or citation.

The plaintiffs Ervin O. Hellickson, C. R. Verry and Hattie L. Verry claim to be innocent purchasers for value without notice, and that therefore they are entitled to the relief demanded in the complaint. However, upon the record they cannot be held to be innocent purchasers. The administrators deed to their grantor John J. Brand reserving the oil and mineral rights was of record in the office of the register of deeds. They had constructive notice of the title of their grantor as it appeared of record. Their claim is therefore without merit.

We have carefully examined the entire record and we are satisfied that the findings of fact are sufficient to support the judgment.

The judgment is affirmed.

MORRIS, C. J., and BURKE and GRIMSON, JJ., concur.

JOHNSON, J., did not participate.


source: Caselaw Access Project

author: GRIMSON, Judge.

license: Public Domain

text:
    ZIMMERMAN et al. v. KITZAN et al.
    No. 7407.
    Supreme Court of North Dakota.
    July 24, 1954.
    Rehearing Denied Aug. 25, 1954.

      J. K. Murray, Bisma.rck, for appellants.
    Milton K. Higgins, Bismarck, for respondents.
   GRIMSON, Judge.

The plaintiffs allege for their first- cause of action that Solomena Zimmerman is the owner of certain real estate in Morton County, North Dakota; that the defendants claim certain estates or interests therein. They ask that title be quieted in Solomena against such claims. For a second cause of action they allege that plaintiff, Solomena Zimmerman, is the widow of Gottlieb Zimmerman and the owner of said real estate by virtue of being his only surviving heir; that John F. Schneider is the duly appointed and qualified administrator -of Gottlieb Zimmerman’s estate and is entitled to the possession of all of Gottlieb’s property, including some personal property set out in the complaint. Then it is alleged that at the commencement of the probating of the estate the defendant, Emma Kitzan, represented that she was the surviving daughter of Gottlieb Zimmerman and had a right to select an administrator and did so select the defendant, Christ Kitzan, to act as co-administrator. It is further alleged that at the time of the commencement of such proceedings Emma Kitzan’s attorney, Kurt Krauth made false and fraudulent representations that the other defendants were entitled to inherit certain portions of the property of Gottlieb Zimmerman and thereby induced the plaintiff, Solomena, to enter into a family contract for the distribution of the estate; that Solomena, upon learning the falsity of said representations and of 'her legal rights rescinded said contract and the plaintiffs ask that said contract be can-celled.

The defendants answer making a general denial and set up the circumstances leading to the execution of the contract in question claiming that it is valid and binding. Defendants pray that the contract be declared valid and binding and title be quieted in the parties and they be given possession in ac-cordaricé therewith.

Plaintiffs reply by a denial and a claim that the county court has found said contract void. The validity of the contract was the sole issue presented on the trial.

This action was commenced March 25, 1946. The case was first tried before Hon. J. O. Wigén. It was submitted to a jury who found for the defendants. Judge Wigen treated their verdict as advisory only but in a memorandum decision the court approved such finding. The plaintiffs made a motion for a new trial which was granted. Defendants appealed, from the order granting a new trial. On that appeal the order for a new trial was affirmed in Zimmerman v. Kitzan, 77 N.D. 477, 43 N.W.2d 822. The defendants then moved the court to vacate the order for a new trial which motion the district court granted. Thereupon plaintiffs appealed. This court reversed that order, Zimmerman v. Kitzan, N.D., 56 N.W.2d 208. The case then came on for a new trial before Hon. Harvey J. Miller, without a jury, April 8, 1953. Judge Miller found for the defendants and this appeal is from a judgment in their favor. A trial de novo is demanded.

The evidence shows that in 1899 Gottlieb .and his first wife, Elizabeth, came from Russia and settled south of Hebron in Morton County where they lived until Elizabeth’s death in 1939. They accumulated some property. They had no children. Before they left Russia, Gottlieb’s sister had given birth to a daughter, Emma, who was being raised by her grandfather. After Gottlieb and his wife had become settled, correspondence was had by Elizabeth, writing for herself and Gottlieb to Emma’s mother in Russia. Because they had no children they asked that Emma be sent to them. An agreement was reached that Emma should come to America and be raised by Gottlieb and his wife. It is claimed that the agreement included a promise that she would be adopted by Gottlieb. Emma came to the United States with some other relatives when she was 12 years of age; Gottlieb paid her fare. Thereafter she lived with Gottlieb and his wife as a daughter until she was married to the defendant, Christ Kitzan, when she was 18 years of age. Elizabeth Zimmerman died in 1939 and in 1941 Gottlieb married Solomena, a widow, who at that time was 62 years of age and the mother of 13 children. She had lived at Anamoose, North Dakota. They lived together in Hebron until Gottlieb died July 12, 1945. Two years after this second marriage Gottlieb had prepared and signed deeds and a bill of sale conveying his property to his wife, Solomena, and to Emma and to her children, Walter, Hilda, and Florence. With these instruments he signed a letter of direction addressed to John F. Schneider, instructing him to keep the instruments therein enclosed until Gottlieb’s death and then to deliver them to the grantees named in said instruments. Before Gottlieb went to the hospital he gave Sol-omena the key to a locked iron box he kept in his trunk in his bedroom. Shortly after his death the Kitzans arranged a meeting of all the interested parties and Mr. Schneider at the law office of Kurt Krauth in Hebron.

John F. Schneider brought the iron box. It was opened at this meeting and the instruments aforementioned were found. No delivery of them had been made to Mr. Schneider during Mr. Zimmerman’s lifetime. A conference ensued at which these instruments and the distribution of the estate were discussed. The conclusion was reached that Gottlieb’s intention as to the disposition of his estate should be carried out and Krauth was engaged to draw up an agreement to that effect and to start probate proceedings. Mr. Krauth drew up such a contract, dated July 30, 1945. It was signed by Solomena, as the widow, and Emma Kitzan, as the daughter, as the heirs-at-law. John F. Schneider, the friend and advisor of Solomena, and Christ Kitzan, the husband of Emma, the alleged daughter, were then, on the petition of Solomena and Emma, appointed administrators of the estate. In November of 1945 a disagreement arose between the administrators over Mr. Schneider’s bill against the estate. Schneider then consulted attorneys. On Nov. 15, 1945, Solomena had a notice of rescission of the contract of July 30, 1945, served on all the parties. Soon thereafter this action was commenced.

The plaintiff, Solomena, contends that as the widow and sple heir of Gottlieb Zimmerman, she is the owner of all the estate; that the contract made in Mr. Krauth’s office was procured by fraud and without any consideration, and consequently is invalid.

The defendants contend that there was no fraud in connection with the execution of the family contract and that it is vaiid. They claim ownership of Gottlieb’s property as therein provided.

Plaintiffs rely on two representations claimed to have been made by Mr. Krauth, the attorney, as fraudulent. The claim, first, that he represented in the conference after the box was opened, that the deeds and instruments there found were legal and binding, and, second, that he represented that Emma was the daughter of Gottlieb Zimmerman and entitled to inherit one-half of the estate. They claim both these representations were false. They further contend they thought Mr. Krauth was their attorney and that they relied on him and agreed to everything he advised.

The evidence shows that the deeds, bill of sale and escrow letter were prepared on July 20, 1943 by Mr. Krauth for Gottlieb Zimmerman, and on his instructions. Gott-lieb had told John F. Schneider about these instruments and some of the family had some knowledge of Gottlieb’s intention to divide up his estate. A few days after his death some of the defendants had talks with Mr. Krauth regarding the estate. The meeting followed.

All the parties were German and the conversation was partly in German and partly in English. Mr. Krauth testifies that he read the papers in English and explained them to the parties in German. He says he told them that these deeds and instruments were invalid because they had not been delivered to Mr. Schneider before Gottlieb’s death. In that he is corroborated by three witnesses. That is disputed by the plaintiffs although Mr. Schneider at one time in his testimony said he thought they were good but that Krauth did not tell him so. They now claim that Krauth told them the deeds were valid and that partly for this reason Solomena signed the contract. After discussion of the matter, the parties agreed to follow out Gottlieb’s intentions and divide the property. They engaged Krauth to draw the agreement and to start the probate proceedings.

At that meeting after the agreement was reached, Mr. Krauth drew up the petition for administration and it was signed by Solomena and Emma. Later Mr. Krauth drew up the contract and took it to Solo-mena for signature. She would not sign before a conference with Mr. Schneider so they both went to Mr. Schneider’s home. There Mr. Krauth says he again read the contract in English and explained it to Solomena in German. After some discussion Mr. Schneider advised- Solomena to sign the contract, saying that it was in accordance with the agreement.

It is evident that if Mr. Krauth had told them at the conference that the deeds were valid there would not have been any need of a family agreement. They could have been recorded without any probate proceedings and since they agreed to carry out Gottlieb’s wishes that would have been the simplest way to do it. It is admitted, however,, that Mr. Krauth told them that in order to carry out Gottlieb’s intentions it would be necessary to probate the estate and to make a contract to have distribution made in accordance with his intention as evidenced by the deeds. There would have been no occasion for such advice if the deeds had been valid. -Clearly the circumstances support Mr. Krauth’s version of what he told the assembled, interested parties on that matter.

The conclusion of the trial judge also supports the veracity of Mr. Krauth. The trial judge hears and sees the witnesses and is in much better position to pass upon the veracity of the witness than we are. When a case triable to the court alone is brought before this court on a trial de novo appreciable weight is given to the findings of the trial court on such matters. Braaten v. Grabinski, 77 N.D. 422, 43 N.W.2d 381; Cretors v. Troyer, 63 N.D. 231, 247 N.W. 558; Ellison v. Ellison, N.D., 54 N.W.2d 656; Braaten v. Brenna, N.D., 63 N.W.2d 302. Prior to the trial of this case a jury and another judge reached the same conclusions regarding Mr. Krauth’s veracity.

The only other point of claimed fraud in connection with the execution of the contract is that in the conversation prior to reaching ■ the agreement- Mr. Krauth said that Emma Kitzan was the daughter of Gottlieb Zimmerman and as the only child was entitled, according to law, to inherit one-half of his estate. It is claimed that that was a false representation which plaintiffs believe and which helped to induce Solomena to sign the family contract

It is admitted that Mr. Krauth did so advise the conference. He believed that to be a fact. Emma is so described in the deed and letter of instruction found in the iron box which Mr. Krauth had prepared at Gottlieb’s direction two years before, and which Gottlieb signed.

The evidence shows that Emma was not the natural daughter of Gottlieb and his first wife. On the other hand it does show that she was brought to America when she was 12 years old upon an agreement between her mother and Gottlieb and his wife that they would bring her up as their own. That agreement was reached by correspondence and the letters were not available. Gottlieb Heinle, however, testified he read those letters in the old country and that on his arrival here Gottlieb Zimmerman admitted he had his wife write them because he could not write himself. Heinle brought Emma to America and was reimbursed her fare by Gottlieb as was provided in those letters.

After Emma arrived she was treated just like a daughter and conducted herself as a daughter calling Mr. and Mrs. Zimmerman, “papa” and “mamma”. There is testimony that in the letter written her mother the Zimmermans wrote that they would “take her for their own child.” When he paid her fare on her arrival Gottlieb said: “Emma will be our own child now * * * and shall have everything after I die.” Gottlieb on many occasions expressed the intention of making her the heir of all his property making such remarks as “We will take her on as my child and heir.” “She will be our child and will inherit all we have when we die.” When Emma married, Gottlieb gave her 40 acres of land and 7 or 8 cows,, apparently as a dowry. His conclusions on Emma’s standing in the family are perhaps best indicated when he had her described as his daughter in the deed by which he intended to leave her part of his property.

The actions of Gottlieb in having her brought to the United States, in bringing her up, giving her property at the time of her marriage and saying that she was his heir, all support such an agreement. Gottlieb may not have known how to make a statutory adoption. He may have thought that his actions amounted to an adoption in accordance with his agreement.

Thus, while there is no evidence of a statutory adoption there is some evidence indicating that there was an informal contract to adopt her. Such a contract may be established in a court of equity if there is sufficient evidence. Muhlhauser v. Becker, 74 N.D. 103, 20 N.W.2d 353.

It is true that the evidence of the terms of the agreement is not very clear or definite but that cannot be expected in the case of correspondence between people of different countries some 40 years ago. The evidence is sufficient, however, to show why Gottlieb had her described as his daughter in the letter of instructions and the deed accompanying that letter and justifies Mr. Krauth in making that representation to the plaintiffs.

There is evidence also that the plaintiffs were not misled by this representation. Mr. Schneider testifies that he knew Emma was not a daughter. Solomena testified that she knew Gottlieb had no children. The evidence further shows that all the parties knew the informal relationship of daughter and parents which had existed and they knew Gottlieb’s intention to make her his heir.

In Jhis case, however, it is not necessary for us to decide whether there was an executed agreement to adopt. Emma participated in the family conference and made no claim there that she was the daughter. She waived all claim to inherit as a daughter when she joined in the family contract to carry out Gottlieb’s attempted division of his property. The evidence does show, however, that the representation that she was Gottlieb’s daughter was made in good faith and had some grounds to substantiate it. A trial in court would have been necessary to decide the matter.

There is no indication of fraud in the actions of Mr. Krauth. He told the interested parties at the conference of the in-validitj'- of the deeds. He told them in good faith what Emma would inherit as a daughter. He told them how Gottlieb’s intentions could be carried out. All the parties were interested in these matters and were entitled to know them before they could reach a decision. It was Mr. Krauth’s duty as a lawyer to inform them thereof. There is no evidence that he attempted in any way to influence their decision.

The representations made under such circumstances do not amount to fraud. “ ‘Fraud cannot exist, as a matter of fact, where the intent to deceive does not exist, for it is emphatically the action of the mind, which gives it existence.’ ” State ex rel. Jensen v. Wells, 66 S.D. 236, 281 N.W. 99, 103; Tilghman v. West, 43 N.C. 183.

Actual fraud cannot be presumed but must be affirmatively proved by the one who relies on it As in other civil actions the burden of proving affirmative defense is on the party alleging such defense. 37 C.J.S., Fraud, § 94, p. 393; Steinbach v. Bauclair, 38 N.D. 223, 164 N.W. 672.

Family settlements of estate matters when free from fraud are favored by the courts.

“Courts will enforce family settlement agreements of estates when free from fraud and creditors are not involved regardless of whether the settlement follows the law of descent and distribution.” Muhlhauser v. Becker, 76 N.D. 402, 417, 37 N.W.2d 352, 362. See also Aberle v. Merkel, 70 N.D. 89, 291 N.W. 913; 26 C.J.S., Descent and Distribution, § 73, p. 1108.
“The compromise and settlement among heirs, distributees, devisees, and legatees of an intestate’s estate, where free from fraud, are favored and enforced by the law.” 16 Am.Jur., Descent and Distribution, § 145, p. 925.

In Re Vasgaard’s Estate, 62 S.D. 421, 253 N.W. 453, 456, it is said:

“With scarcely a dissenting voice save in the state of Wisconsin * * * it is held that family agreements relative to the distribution of property of a decedent among the persons thereto entitled are not contrary to public policy and if fairly made are binding and enforceable according to their terms; and indeed it is frequently said that the law looks with particular favor upon such family compromises. To that view this court is already committed and has refused to recede therefrom. See Ewing v. Waddington, 1933 [62 S.D. 166], 252 N.W. 28, and cases there cited.”

Judge Miller in his memorandum decision says: “Plaintiff was not misled or influenced by fraud, nor did she act under any mistake of fact or law or undue influence.” We agree.

Plaintiffs allege that there was no consideration for this family agreement and that, therefore, it is void. It is clear, however, that there was a desire on the part of all the interested parties to carry out the evident intent of the decedent, Gottlieb Zimmerman. There is testimony that Solo-mena said: “This should go like father wants to have it go.” Emma gave up her claim as a daughter. Undoubtedly there would have been a contest over Solomena’s right to at least half the estate claimed by Emma as a daughter and a long standing controversy over that might have ensued. The carrying out of the decedent’s known intent with regard to the distribution of this estate and termination of all controversies regarding said estate is a sufficient consideration. 16 Am.Jur., Descent and Distribution, Consideration, § 147, p. 928.

The fairness of the family agreement may also be considered. Emma had for at least eight years helped the Zimmermans as a daughter in the carrying on of the household and farming activities and had assisted them in their active life of accumulating property. On the other hand Solomena and Gottlieb had married in their old age. They had been married for only about four years. Solomena could not have aided Gottlieb in accumulating this property. Gottlieb provided her the homestead for life and more than enough money to cover the widow’s exemptions.

Plaintiffs’ final claim is that this family contract is conditional on the county court’s approval. The contract must be read as a whole. When this is done it is clear that the intent of the parties was to substitute the family contract for the law of succession. The county court is bound by that contract. Any wording requesting the county court to approve the contract is mere surplusage. The final clause of that paragraph asks “that the court issue its final decree of distribution by distributing the whole estate of said deceased in accordance with the terms and conditions of this contract.” The court is asked to consider this contract as an assignment of the legal interests of the parties and to make distribution accordingly. The contract being valid it is the duty of the county court to give it effect.

The judgment of the district court is affirmed.

MORRIS, C. J.,' and SATHRE and BURKE, JJ., concur.

JOHNSON, J., did not participate.


author: BURKE, Judge.

text:
    BARTHOLOMAY v. BARTHOLOMAY et al.
    No. 7420.
    Supreme Court of North Dakota.
    July 23, 1954.
    Rehearing Denied Aug. 20, 1954.
    George E. Duis, Fargo, for appellant.
    Lee F. Brooks, Fargo, for respondents.
   BURKE, Judge.

This is an action to foreclose a real estate mortgage. The mortgage was given to secure a note in the sum of $1,400 executed and delivered by the defendant, Antonia Bartholomay, on March 29, 1923, to one William Piper. The land described in the mortgage was an eleven acre tract in Leonard, N. D., upon which was a residence, the home of Antonia Bartholomay. On August 10, 1935, Piper’s administra-trix assigned the note and mortgage to one Nick Seiwert by an instrument in writing which recited that the balance then due upon the debt was $400.00 with interest at six percent from March 29, 1934. On December 14, 1944, Nick Seiwert assigned the note and mortgage to the plaintiff. This assignment set forth that the balance due on the debt at that time was $200.

Plaintiff instituted this action to foreclose the mortgage in October 1952. In his complaint he alleged that the amount due upon the debt for principal, interest and taxes paid was the sum of $2,547.19. The defendants answered and alleged that the debt had been fully discharged by payment.

Upon the trial of .the case the court found the facts in favor of the defendants and judgment dismissing the action was entered on March 26, 1953. The plaintiff has appealed from the judgment. The only question upon this appeal is the sufficiency of the evidence to sustain the judgment.

At the trial the note and mortgage, the two assignments and six tax receipts showing payment by plaintiff of the taxes on the mortgaged property for the years 1946 to 1951 inclusive in the total sum of $436.-19, were received in 'evidence. Plaintiff testified that only one payment of $80 had been received by him upon the indebtedness and that he endorsed this payment on the note upon November 12, 1946. Since plaintiff’s assignment showed that there was $200 due on the mortgage, at the time he purchased it, this evidence made out a pri-ma facie case that the amount due on the mortgage at the time of trial was $120 and interest and the amount of the taxes which had been paid by plaintiff. There is no question but that if any amount was owing, payment was in default.

Payment is an affirmative defense in an action involving a mortgage and must be established by the party claiming payment, by a fair preponderance of the evidence, Depositor’s Holding Co. v. Brown, 64 N.D. 222, 251 N.W. 295; Hassen v. Salem, 48 N.D. 592, 185 N.W. 969. The only evidence of payment in this record is the testimony of the defendant, Antonia Bartholomay. At the time she testified, she was 95 years old. She stated that she made some payments upon the mortgage while it was owned by William Piper but did not say how many payments were made or what the amount of the payments was. She said that she received credit on the note, while it was owned by Nick Seiwert, as payment for work done by her for him. She did not state how much credit she was to receive. She had no receipts or records of any kind. Certainly, there is nothing in this evidence which would establish that she was entitled to more than the $1,000 credit which was given on the note while Piper had it or to more than the $200 credit which was given while Seiwert owned it. She testified that after plaintiff bought the note and mortgage she paid him eighty dollars. She was asked “Did you give him (the plaintiff) $80.00?” and she aswered “Yes, straightened up and it was even.” Defendant’s proof of payment thus rests upon evidence of one definite payment of $80 and Antonia Bartholomay’s statement that this payment “straightened up and it was even.” In view of her indefinite and uncertain testimony as to prior payments and credits, and her lack of receipts or records of any kind, we do not see how she could have possibly known what was due on the indebtedness at the time she made the payment. Upon the record her statement that the $80 payment paid the indebtedness in full is only an unsupported conclusion. That there was no agreement between the plaintiff and Antonia Barthol-omay that the $80 should be paid and accepted as full payment of the debt is shown by the fact' that after the payment was made plaintiff continued to pay the taxes upon the land for the next seven years or up to the time of trial. It is hardly conceivable that plaintiff would pay these taxes for the benefit of the defendant, the State Welfare Board, which holds a subsequent mortgage on the property.

Upon all the evidence we are satisfied that defendants have failed to establish the defense of payment.

The judgment of the District Court is therefore reversed. Since the amount due upon the mortgage debt may have been enlarged by the payment of additional taxes since the time of the trial, the case is remanded to the district court for computation of the amount now due on the mortgage and the entry of judgment in accordance with this opinion.

■MORRIS, C. J., and SATHRE and GRIMSON, JJ., concur.

JOHNSON, J., did not participate.


text:
    DIETZ v. DIETZ.
    No. 7398.
    Supreme Court of North Dakota.
    July 23, 1954.
    Rehearing Denied Aug. 25, 1954.

      Emil A. Giese, Carson, R. J. Bloedau, Mott, for plaintiff and appellant.
    W. J. Austin, Bismarck, for defendant and respondent
   BURKE, Judge.

Here there are three appeals in one action. The plaintiff obtained a default judgment of divorce from the defendant on February 1, 1952. This judgment decreed a property settlement between the parties in accordance with the terms of their written agreement which was filed in the action. Upon the petition and affidavits of the defendant, the trial court on March 28, 1952, issued its order requiring the plaintiff to show cause why the judgment in so far as the property settlement was concerned, should not be vacated, why the contract between the parties should not be voided upon the ground of fraud and why the question of an equitable property settlement should not be adjudicated anew. After a hearing upon the order to show cause the trial court, on April 12, 1952, made its order reopening the action in so far as the property settlement was concerned upon the condition that defendant, as part of her rescission of the contract of settlement, deposit with the clerk of court, the proceeds of the settlement which she had received. Thereafter a further hearing was had and the trial court gave judgment awarding the defendant one half of the property of the parties, fixing the value of the half share at the sum of $19,140, and giving the parties time in which to agree upon a division of the property. This judgment was entered upon November 15, 1952. Thereafter on April 8, 1953, the parties having failed to agree upon a division of the property a supplemental judgment was entered decreeing a division of the property. On May 22, 1953, plaintiff took separate appeals from the order reopening the action, from the judgment entered on November 15, 1952, and from the judgment entered upon April 8, 1953.

Before reaching the merits of the case there are two motions to be considered. The first of these is defendant’s motion to dismiss the appeals. The first ground urged for dismissal is that only one undertaking was filed for the three separate appeals. The undertaking is as follows:

“Undertaking on Appeal (to Supreme Court)”
“Whereas a ‘Modified and Supplemental Judgment and Decree’ was dated and entered in said action on November 15, 1952, and a ‘Supplemental Judgment’ was dated and entered in said action on April 8th, 1953, and a certain ‘Order’ was entered and filed in said action on April 22, 1952, and the Plaintiff feels aggrieved thereby, and intends to appeal and is taking an appeal from said Judgments and from said Order and each of them, to the Supreme Court of North Dakota, and Plaintiff intends this instrument as an undertaking for costs on such appeals as well as an undertaking to stay execution on appeal.
“Now Therefore to render such appeals effective and in force, and in order to stay the execution of said Judgments on appeal, the undersigned Reinhold Dietz as Plaintiff in said action, as Principal, and Wm. Dietz and Gott-lieb Lippert as sureties, do hereby for good consideration, undertake, promise and agree to and with the Defendant and the Plaintiff-Appellant will pay to the Defendant all costs and damages which may be awarded against the Plaintiff on appeal on said appeals or a dismissal thereof, not exceeding seven-hundred-fifty dollars ($750.00), and we
also further undertake promise and agree that if the judgments and order appealed from, or any part thereof, is affirmed, the Plaintiff-Appellant will pay the amount directed to be paid by the judgments, or the part of such amount as to which the said judgments or judgment shall be affirmed if it is . affirmed only in part, and all damages which shall be awarded against the Plaintiff-Appellant on appeal as here-inabove set forth.
“Dated at Mott, North Dakota, this 22nd day of May, 1953.
•“Reinhold Dietz,
Principal,
“Wm. Dietz,
Surety,
“Gottlieb Lippert,
Surety.”

Section 28-2709 NDRC 1943 provides:

“To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties to the effect that appellant will pay all costs and damages which may be awarded him on appeal not exceeding two hundred fifty dollars.”

We are of the opinion that the undertaking in this case complies with the statute. All the appeals are in one action. The undertaking specifically describes the order and the two judgments from which, the appeals have been taken. The condition is that the appellant will pay all costs-that may be awarded in any or all the appeals in a sum not exceeding three times-the amount fixed by statute for one appeal. The undertaking clearly gives the defendant all the protection contemplated by the-statute.

Where there is more than one appeal in a single action, separate undertakings are not necessary if the undertaking adequately describes the matters appealed from and is in a sufficient amount to comply with the statute. Sucker State Drill Co. v. Brock, 18 N.D. 598, 120 N.W. 757.

The second ground urged for dismissal is that the appeals from the order of April 12, 1952, and from the judgment of November 15, 1952, were not timely taken.

Section 28-2704, NDRC 1943 provides:

“An appeal from a judgment may he taken within six months after the entry thereof by default or after written notice of entry _ thereof, in case the party against whom it is entered has appeared in the action, and from an order within sixty days after written notice of the same shall have been given to the party appealing.”

This statute is clear. Where a party has appeared in an action, the time for appeal from a judgment or order does ■not commence to run until written notice of entry thereof has been given. Prescott v. Brooks, 11 N.D. 93, 90 N.W. 129; King v. Hanson, 13 N.D. 85, 99 N.W. 1085. We Rave carefully searched the entire record for some evidence of such written notice and find none. We must therefore hold that this objection to the appeals is wholly unfounded.

The third challenge to the sufficiency of the appeals is that no demand for a trial de novo is incorporated into the settled statement of the case; that there is no sufficient specification of the insufficiency of the evidence and that there is therefore nothing for the court to review. Defendant’s counsel is mistaken as to the facts in connection with this contention. The order of the trial court settling the statement of the case specifically incorporates a demand for a trial de novo in the statement of the case.

Defendant also moved to strike a portion of the statement of the case, upon the ground that the statement of the case contains matter which is not a part of the statement of the case as defined by statute. On its face such a motion is too indefinite and uncertain to warrant any consideration.

Upon the merits plaintiff contends generally upon all three appeals that the trial court, upon the evidence submitted, was without authority to reopen the judgment or modify its provisions with respect to the division of the property of the parties.

The parties were married in January 1937. There were two children, issue of the marriage, Virgil, born July 27, 1939 and, Russel, born .May 16, 1950. Differences between the parties brought about a separation in 1951. On December 5, 1951, they entered into an agreement for a division of their property and for the custody of the children. By the terms of the agreement defendant was to receive $11,200 and all of the household furniture and furnishings, or cash and property of a value in excess of $13,000. She was to receive the custody of the younger child. On December 15, 1951 plaintiff commenced this action for divorce by causing a summons to be served upon the defendant personally. The defendant defaulted and after a trial of the action on January 24, 1952, a judgment of divorce in favor of the plaintiff, which adjudged a division of the property in accordance with the terms of the agreement, was entered on February 1, 1952.

Upon the hearing upon the order to show cause why the judgment should not be reopened, the trial court found that there had been no fraud or duress in connection with the property settlement as had been alleged by the defendant. We believe this finding to be correct. Defendant’s affidavit in support of her petition contains some statements which on the face of the record before us are not true and others which are reckless exaggerations. Considering the affidavit as a whole we cannot accept it as credible.

The trial court did find, however, that it was the purpose of the parties, at the time the agreement was made, to divide all of their property equally between them and that there had been no meeting of the minds upon the question of values. He found that the value of all of the property of the parties was $38,280 and ordered the judgment amended to provide that plaintiff should pay to defendant the sum of $19,140.

We find no evidence in the record whatever to support a finding that “parties purposed to divide the property equally between them.” There is no evidence that any particular share which defendant was to receive or that the value of any particular asset was ever mentioned in the negotiations for settlement. There are no circumstances, which, in our view would justify such an inference and the fact that defendant was to receive property and cash of a value in excess of $13,000 or a little more than one third of the estate would indicate that there was no overreaching on the part of the plaintiff.

In the case of Sinkler v. Sinkler, 49 N.D. 1144, 194 N.W. 817, this court discussed at length the nature and effect of a judgment in a divorce case which made a final distribution of the estate of the parties. We there held that such a judgment may not be modified except in the same manner and upon the same grounds as other judgments. We are of the opinion that the judgment entered in this case is such a judgment. The judgment provides that the defendant shall be awarded certain described personal property and that all other personal property owned by the parties shall be awarded to the plaintiff. It provides that all the real property of the parties, itemizing it by specific description, shall be awarded to the plaintiff. It provides that the plaintiff shall pay to the defendant the sum of $11,200, of which $6,200 was to be paid at the time of the entry of the judgment and the balance of $5,000 in equal annual installments. It impressed a lien upon certain of the real property assigned to the plaintiff as security for these deferred payments and it provided that upon compliance with the terms of the judgment the plaintiff shall be forever released of any and all further obligations of every kind and description for any property or alimony.

In view of these provisions of the judgment we have no doubt but that it was intended to and did decree a final distribution of the estate of the parties. It follows, that in the absence of fraud or duress the trial court was without authority to modify that judgment.

The suggestion has been made in defendant’s brief that the modification of the judgment could be sustained upon the theory that the additional award could be considered as an allowance for the support of the minor child in the custody of the defendant. As to this suggestion we think it sufficient to say that defendant's petition was made entirely in her own behalf and not in behalf of the child in her custody. There is no question but that the parties to a divorce may not by contract deprive a child of its right to support from either parent or that a judgment decreeing a property settlement will have that effect. It remains within the power of the court to make additional allowance for the support of the child in the custody of the defendant when and if it is needed. Nelson, Divorce and Annulment 2d Vol. 2, § 1703; Metson v. Metson, 56 Cal.App.2d 328, 132 P.2d 513; Corbett v. Corbett, 36 Ohio App. 321, 173 N.E. 316, affirmed 123 Ohio St. 76, 174 N.E. 10.

The judgments and the order appealed from are reversed.

MORRIS, C. J., and SATHRE and GRIMSON, JJ., concur.

JOHNSON, J., did not participate.