Bronson, J.
This is an action to determine adverse claims to 152 acres of land in Nelson county. The parties to the action are the children of Charles L. Wehe and Pauline E. Wehe, both deceased. The action was originally instituted in February, 1916, by Charles L. Wehe, the father; it came to trial in November, 1916. Before its determination in the trial court, but after his testimony had been taken, the father, on December 20, 1916, died. His son, the executor of his will and one of the defendants herein, was substituted by order of court as party plaintiff on March 13, 1917.
On April 7, 1917, the trial court made findings adjudging the defendants Arthur O. Wehe, Eliada P. Wehe, and Herbert C. Wehe to be the owners in fee of the land, and quieting title in them, and ordering, further, a judgment against the defendant Laureas J. Wehe in favor of Arthur O. Wehe, for $136.01 on account of rents and profits of such land, for the year 1915. Pursuant thereto, on May 21, 1917, judgment was entered. The plaintiff and the defendants, excepting Arthur C. Wehe, have appealed and demand a trial de novo.
The facts substantially are as follows:
The father squatted on this land in 1883. In February, 1891, a United States patent thereof was issued to him. On April 13, 1891, the premises then being a statutory homestead, he gave a warranty deed of the same to his wife. The reason, as stated in his testimony, why he placed title in his wife, was that creditors might not get at it; that he might protect his family. At the time there was apparently a [283]*283judgment for a large amount against him, and thereafter, under execution, this land, as well as other land, was subjected to the levy thereof, but this land was exempted not only by reason of the deed given, but also on acount of its being a homestead. The parents lived on the land until 1896, when they moved to.Grand Forks, and there they subsequently resided up to the time of their death. The father continued to operate the farm, pay the taxes, and in a general way to receive the profits therefrom up until 1913, when on account of, or to avoid, some family troubles, the mother then began to look after and operate the farm. Sometime in 1900 the mother made a will, which was filed in the county court. This will was later taken out by Arthur 0. Wehe about the time he visited his mother, on or about October 30, 1913, at Grand Forks, when, in accordance with his testimony, a new will was drawn up and signed by the mother, which devised $1,000 each to her children the defendants Arthur O. Wehe, Eliada P. Wehe, and Herbert O. Wehe, and the rest and residue of her estate to her other children, share and share alike. Likewise, in accordance with Arthur O. Wehe’s testimony, on the morning of October 31, 1913, the mother executed a warranty deed conveying the land to said Arthur 0. Wehe, Eliada P. Wehe, and Herbert 0. Wehe, mentioned as legatees in the will made the night before. Arthur 0. Wehe further testified that this will so made the night of October 30th was subsequently destroyed by his mother, and a new will executed by her sometime in the month of February, 1914, at Grand Forks, at her home, containing the same terms, and dated the same day as the will so destroyed. This will was offered in evidence. It designates the defendant Arthur 0. Wehe as the executor. It is witnessed only by Arthur 0. Wehe and Eliada P. Wehe, two of the children named as legatees therein. As a reason why such deed was executed, Arthur 0. Wehe further testified, that his mother was afraid the will might be attacked, and it was therefore proposed that the deed be given to the three of them; that there was an implied understanding that the will should be used as a memorandum in connection with the deed; that it was the mother’s wish that the land so be disposed upon her death as provided in the will; that, out of this land, the three grantees in the deed should each get $1,000, and that the surplus remaining, if any, after the sale of such [284]*284land, should be divided among the remaining children. That there was further an implied understanding that the mother should receive the income and receipts off the land so long as she lived. In another place, he directly testified that the deed was not an absolute deed, but it had connection with the will, and that it was his wish and desire to carry out the instructions of his mother concerning the disposition of the land.
In the year 1914, Arthur C. Wehe looked after the land. On October 13, 1914, the mother died. Shortly prior to that time, on October 5, 1914, the deed of the mother to the children was recorded. On October 28, 1914, the will dated October 31, 1913, was filed in the county court. On November 3, 1914, a statement was rendered, covering the crop on the land for the year 1914, made by Arthur C. Wehe, showing a balance of $37.45 due the mother. After the death of the mother this will and deed became known to the other children not mentioned therein, and apparently difficulties and troubles concerning this land rapidly arose between the father and all of the children.
In January, 1915, Herbert Wehe appointed the defendant L. J. Wehe as his attorney and agent to look after his interests in the land. Likewise, on February 13, 1915, Eliada P. Wehe did the same. Subsequently on February 4, 1916, both Herbert Wehe and Eliada P. Wehe executed a full power of attorney to said L. J. Wehe, authorizing him to manage, farm, rent, sell, or transfer their right and interest in the land. In 1915, said L. J. Wehe took charge of the farm.
In this record, therefore, two of the grantees named in the deed, Eliada P. Wehe and Herbert Wehe, seek to repudiate such deed as an absolute deed, and join with the remaining appellants in the contentions made to set aside the judgment of the trial court, so determining in their favor.
There are various and conflicting contentions made by-the appellants upon this appeal, dependent upon the construction that the court may give to the two deeds and the will involved. Hpon the record herein there are presented the following major legal questions:
1. The effect of the deed from father to mother in 1891.
[285]*2852. The question of the adverse possession of the father, after the delivery of such deed.
3. The construction to be given the deed from the mother to the three children dated October 31, 1913.
1. The deed of father to mother m 1891. The deed from husband to wife covering the homestead was not void for the reason that both did not concur in and sign the same joint instrument. Dak. Comp. Laws 1887, § 2451. The homestead statute was enacted for the purpose of the protecting and preserving the home for the benefit of the family as a whole. Dieter v. Frame, 20 N. D. 484, 128 N. W. 684. The disabilities of coverture under common-law principles was removed by § 2590, Dak. Comp. Laws 1887, now § 4411, Comp. Laws 1913, which provides that either husband or wife may make any agreement with the other concerning the property which the other might make, if unmarried. Under this statute this homestead protection of the law cannot be devested without the consent of both spouses. In a conveyance from husband to wife there is no intention to devest the wife of her right, or the family, of this homestead protection. The deed is therefore valid as against such objection. Furrown v. Athey, 21 Neb. 671, 59 Am. Rep. 867, 33 N. W. 208; Harsh v. Griffin, 72 Iowa, 608, 34 N. W. 441. See also Olson v. O’Connor, 9 N. D. 504, 81 Am. St. Rep. 595, 84 N. W. 359.
Free access — add to your briefcase to read the full text and ask questions with AI
Bronson, J.
This is an action to determine adverse claims to 152 acres of land in Nelson county. The parties to the action are the children of Charles L. Wehe and Pauline E. Wehe, both deceased. The action was originally instituted in February, 1916, by Charles L. Wehe, the father; it came to trial in November, 1916. Before its determination in the trial court, but after his testimony had been taken, the father, on December 20, 1916, died. His son, the executor of his will and one of the defendants herein, was substituted by order of court as party plaintiff on March 13, 1917.
On April 7, 1917, the trial court made findings adjudging the defendants Arthur O. Wehe, Eliada P. Wehe, and Herbert C. Wehe to be the owners in fee of the land, and quieting title in them, and ordering, further, a judgment against the defendant Laureas J. Wehe in favor of Arthur O. Wehe, for $136.01 on account of rents and profits of such land, for the year 1915. Pursuant thereto, on May 21, 1917, judgment was entered. The plaintiff and the defendants, excepting Arthur C. Wehe, have appealed and demand a trial de novo.
The facts substantially are as follows:
The father squatted on this land in 1883. In February, 1891, a United States patent thereof was issued to him. On April 13, 1891, the premises then being a statutory homestead, he gave a warranty deed of the same to his wife. The reason, as stated in his testimony, why he placed title in his wife, was that creditors might not get at it; that he might protect his family. At the time there was apparently a [283]*283judgment for a large amount against him, and thereafter, under execution, this land, as well as other land, was subjected to the levy thereof, but this land was exempted not only by reason of the deed given, but also on acount of its being a homestead. The parents lived on the land until 1896, when they moved to.Grand Forks, and there they subsequently resided up to the time of their death. The father continued to operate the farm, pay the taxes, and in a general way to receive the profits therefrom up until 1913, when on account of, or to avoid, some family troubles, the mother then began to look after and operate the farm. Sometime in 1900 the mother made a will, which was filed in the county court. This will was later taken out by Arthur 0. Wehe about the time he visited his mother, on or about October 30, 1913, at Grand Forks, when, in accordance with his testimony, a new will was drawn up and signed by the mother, which devised $1,000 each to her children the defendants Arthur O. Wehe, Eliada P. Wehe, and Herbert O. Wehe, and the rest and residue of her estate to her other children, share and share alike. Likewise, in accordance with Arthur O. Wehe’s testimony, on the morning of October 31, 1913, the mother executed a warranty deed conveying the land to said Arthur 0. Wehe, Eliada P. Wehe, and Herbert 0. Wehe, mentioned as legatees in the will made the night before. Arthur 0. Wehe further testified that this will so made the night of October 30th was subsequently destroyed by his mother, and a new will executed by her sometime in the month of February, 1914, at Grand Forks, at her home, containing the same terms, and dated the same day as the will so destroyed. This will was offered in evidence. It designates the defendant Arthur 0. Wehe as the executor. It is witnessed only by Arthur 0. Wehe and Eliada P. Wehe, two of the children named as legatees therein. As a reason why such deed was executed, Arthur 0. Wehe further testified, that his mother was afraid the will might be attacked, and it was therefore proposed that the deed be given to the three of them; that there was an implied understanding that the will should be used as a memorandum in connection with the deed; that it was the mother’s wish that the land so be disposed upon her death as provided in the will; that, out of this land, the three grantees in the deed should each get $1,000, and that the surplus remaining, if any, after the sale of such [284]*284land, should be divided among the remaining children. That there was further an implied understanding that the mother should receive the income and receipts off the land so long as she lived. In another place, he directly testified that the deed was not an absolute deed, but it had connection with the will, and that it was his wish and desire to carry out the instructions of his mother concerning the disposition of the land.
In the year 1914, Arthur C. Wehe looked after the land. On October 13, 1914, the mother died. Shortly prior to that time, on October 5, 1914, the deed of the mother to the children was recorded. On October 28, 1914, the will dated October 31, 1913, was filed in the county court. On November 3, 1914, a statement was rendered, covering the crop on the land for the year 1914, made by Arthur C. Wehe, showing a balance of $37.45 due the mother. After the death of the mother this will and deed became known to the other children not mentioned therein, and apparently difficulties and troubles concerning this land rapidly arose between the father and all of the children.
In January, 1915, Herbert Wehe appointed the defendant L. J. Wehe as his attorney and agent to look after his interests in the land. Likewise, on February 13, 1915, Eliada P. Wehe did the same. Subsequently on February 4, 1916, both Herbert Wehe and Eliada P. Wehe executed a full power of attorney to said L. J. Wehe, authorizing him to manage, farm, rent, sell, or transfer their right and interest in the land. In 1915, said L. J. Wehe took charge of the farm.
In this record, therefore, two of the grantees named in the deed, Eliada P. Wehe and Herbert Wehe, seek to repudiate such deed as an absolute deed, and join with the remaining appellants in the contentions made to set aside the judgment of the trial court, so determining in their favor.
There are various and conflicting contentions made by-the appellants upon this appeal, dependent upon the construction that the court may give to the two deeds and the will involved. Hpon the record herein there are presented the following major legal questions:
1. The effect of the deed from father to mother in 1891.
[285]*2852. The question of the adverse possession of the father, after the delivery of such deed.
3. The construction to be given the deed from the mother to the three children dated October 31, 1913.
1. The deed of father to mother m 1891. The deed from husband to wife covering the homestead was not void for the reason that both did not concur in and sign the same joint instrument. Dak. Comp. Laws 1887, § 2451. The homestead statute was enacted for the purpose of the protecting and preserving the home for the benefit of the family as a whole. Dieter v. Frame, 20 N. D. 484, 128 N. W. 684. The disabilities of coverture under common-law principles was removed by § 2590, Dak. Comp. Laws 1887, now § 4411, Comp. Laws 1913, which provides that either husband or wife may make any agreement with the other concerning the property which the other might make, if unmarried. Under this statute this homestead protection of the law cannot be devested without the consent of both spouses. In a conveyance from husband to wife there is no intention to devest the wife of her right, or the family, of this homestead protection. The deed is therefore valid as against such objection. Furrown v. Athey, 21 Neb. 671, 59 Am. Rep. 867, 33 N. W. 208; Harsh v. Griffin, 72 Iowa, 608, 34 N. W. 441. See also Olson v. O’Connor, 9 N. D. 504, 81 Am. St. Rep. 595, 84 N. W. 359.
The appellants, however, contend that, there was no real intention of the father to part with his title. That there was no consideration for such deed. That the father, not knowing that the homestead was exempt from seizure to satisfy claims or judgments of creditors, through mistake conveyed to his wife in order to protect the family and save his home. That therefore a trust was created. Clearly, this contention cannot be sustained. The intention of the father to place the title of the land absolutely in the mother is clearly disclosed in the record, by his own testimony. The relation of the parties furnished a sufficient consideration if any was needed. The fact that he was ignorant concerning his legal exemptions, or that the conveyance, legally, was not in fraud of creditors,• does not serve to alter his real intention and purpose at the time, or thereby to create in his favor a trust of any kind, no fraud or misrepresentation being practised by [286]*286the mother, and no agreement to recovery being shown. Further, for many years after the parties removed from the premises and the property lost its homestead character, the father acquiesced in this title residing in the mother, and made no claim therefor until after the death of the mother. There might have been possible judgments or claims that might have attached to this property, if the title had been in him.
Upon plain principles of estoppel as well as upon equitable principles that apply when a reconveyance is sought of a deed made to defraud creditors, the father was in no position to assert a trust or claim a reconveyance. 20 Cyc. 617; 21 Cyc. 1302; 16 Cyc. 791, 804.
The trial court, therefore, did not err in finding that such deed from father to mother was an absolute deed.
2. The adverse possession of the father: The appellants further contend that the continuous occupation and management of the farm as well as the payment of the taxes after the execution of such deed constituted adverse possession. This contention is wholly without merit. There was no such actual open, notorious, exclusive, continuous and hostile possession under a claim of right adverse or in hostility to the claim of the mother which, upon elemental principles, is required to establish adverse possession. Comp. Laws 1913, § 7365; 2 C. J. 50, 122, 135, 156; Ward v. Cochran, 150 U. S. 597, 37 L. ed. 1195, 14 Sup. Ct. Rep. 230.
3. The effect of the deed from mother to the three children dated October 81, 1918: The appellants contend that either the deed is in the nature of a testamentary disposition of the property, or it created a constructive trust for the benefit of the persons entitled by law to her estate. Upon this phase of the case the question presented is not without difficulties. It is clear that, upon the testimony of Arthur C. Wehe concerning the intention of his mother, the deed given was not intended as, and is not, an absolute deed. In fact, he so directly testified. He further testified, as hereinbefore stated, that the will was to be used as a memorandum in connection with the title conveyed by this deed; that it was his mother’s wish that the land be so disposed upon her death, as provided in the will.
It is the opinion of the writer, after full consideration, that this [287]*287deed, under all the circumstances in the record, must be construed to be a testamentary disposition, in order to give any force and effect to the real intention and purpose of the mother.
In arriving at this conclusion the evidence is considered as follows:
The mother, practically at the same time that the deed was executed, made a will which gave to the three children the same interest as Arthur C. Wehe testified that they were supposed to receive by the deed. The deed, after being so made, was not recorded until very shortly before the death of the mother. The grantees therein did not attempt to consider the land as theirs, but treated it as belonging to the mother, and so the land was so considered by all the children until the mother died. Furthermore, in the month of February, 1914, the mother made another will exactly the same in terms as the will made in October previous. Certainly, if she had intended to dispose presently of her property by the deed there was no occasion for her making another will. It is not disputed that this land is the entire property that she possessed. The only reason that is given why she made this deed was because she feared that the will might be broken. In other words, the only inference to be drawn, after full consideration concerning her intentions, is that she might be better assured that after her death the property involved would go to the persons in the manner that she had designated it to go in her will. Furthermore, the testimony of Arthur C. Wehe, that the will was to be used as a memorandum in connection with this deed, to aid in arriving at the conclusion that the real intention of the parties was to make, by the instrumentalities of the will and the deed, a testamentary disposition of the property of the mother effective upon her death. The acts of the parties who knew about this will and about this deed confirm in every respect this intention as so construed.
In this connection, it is to be noted that the will, as yet not probated, was made subsequent in point of time to the deed; this is an element to be considered in determining the intention of the testator to make a testamentary disposition of the property covered in the deed, which all of the parties concede did not convey and was not intended to convey the land as prescribed in the deed. The deed therefore, so construed, would operate to pass no title to the grantees therein. Dev-[288]*288lin, Deeds 3d ed. §§ 855c, 309a, 854; see notes in 1 L.R.A.(N.S.) 315, and 89 Am. St. Rep. 494.
The majority of this court, however, are of the opinion that effect should be given to the deed as a deed; that the intention of the testatrix fairly construed was to pass a title in prcesenti to the three grantees named therein upon a trust to carry out and perform the terms of disposition contained in the will; that this interpretation gives full effect to the intention of the testatrix, upholds the deed, and can be sustained upon principles of equity to prevent fraud. The evidence fully warrants the imposition of a constructive trust upon the grantees as opposed to the contention of the respondent and the holding of the trial court that the deed was absolute. The will properly serves all of the purposes of a memorandum in writing, expressing in specific terms the trust imposed. Hanson v. Svarverud, 18 N. D. 550, 120 N. W. 550; Arntson v. First Nat. Bank, 39 N. D. 408, L.R.A.1918F, 1038, 167 N. W. 760. In terms of the final result, the intention of the testatrix will be substantially fulfilled under either construction. It is therefore held by the majority of this court that the deed in question imposed a constructive trust upon Arthur C. Wehe, Eliada P. Wehe, and Herbert C. Wehe, the grantees in the deed, pursuant to the terms of the will, and that the will shall be used as a memorandum of the duties and obligations of such grantees, as trustees.
It is therefore ordered that the judgment of the trial court be reversed and the case be remanded for further proceedings in order to carry out and execute the duties of such grantees as trustees of the title consonant with this opinion. The appellants will recover the costs of this appeal.
Christianson, Ch. J., Birdzell and Grace, JJ.,' concur.