Bernauer v. McCaull-Webster Elevator Co.

Bronson, J. This is an action brought to determine adverse claims under the statute, § 8144, Comp. Laws 1913. On October 11, 1915, the Moreau Lumber Company, the owner in fee of the farm lands involved, gave a contract for a deed to the plaintiff and respondent herein. Thereafter on April 27, 1916, Nick Hoffman and wife made a mortgage on the lands involved herein to the appellant, the McCaull-Webster Elevator Company. In this action, the appellant, in its answer, sets forth only a general denial. Upon the trial, another action, with said Moreau Lumber Company as plaintiff and Anna Bernauer, the respondent and appellant herein, and others as defendants, was consolidated with this action and tried together. The district court, pursuant to findings made, rendered a separate judgment in this action quieting title in the plaintiff as the equitable owner of the premises herein, and adjudging the mortgage as well as other liens in favor of such appellant by said Nick Hoffman to be invalid as against the title of the plaintiff. At the trial it was stipulated that the Moreau Lumber Company was the owner of the premises involved, and that the lien of the appellant, if any, was subordinate to the rights of such Moreau Lumber Company. The appellant herein prosecutes this appeal, and demands a trial- de novo in this court challenging the judgment of-the trial court, upon grounds that the plaintiff has failed to establish in the record her title to the premises; that the contract for such deed was made to said plaintiff in trust for Nick Hoffman; and that, further, such contract is void, because made to defraud creditors. In this action appellant has not demanded that its rights and claims be determined. The sole issue presented, as involved herein, is the question, whether or not the plaintiff in this action has established her title as found by the trial court. The evidence in the record well establishes by the contract itself the [564] right and interest of the plaintiff thereunder, unless the record shows in accordance with the contentions of the appellant that a resulting trust arose, by reason of the fact that the consideration for the contract in question was paid by one Nick Hoffman, and the title taken in the name of the plaintiff (Comp. Laws 1913, § 5365), or that such contract was so made to defraud creditors (Comp. Laws 1913, § 7220). The evidence in the record is insufficient to establish clearly or by substantial proof, that the consideration was so paid by Nick Hoffman. On the contrary, there is some evidence in the record that part of the consideration at least was paid by the plaintiff. Likewise with respect to the contention of the appellant that the contract so made to the plaintiff was void, because made to defraud creditors under Comp. Laws 1913, § 7220, the evidence again is insufficient outside of the question of the appellant pleading any issue in that regard to establish any fraudulent intent. We deem it unnecessary to discuss at length in this opinion, the evidence in that regard. We deem it sufficient to state that the findings of the trial court in this respect are correct. As stated in Dalrymple v. Security Loan & T. Co. 9 N. D. 306, 318, 83 N. W. 245: “We know of no rule of law which can be invoked to prevent a purchaser of real estate from directing the vendor to convey the title of the purchased property to another than the purchaser. This is a matter of frequent occurrence, and in such cases the deed will fake effect and pass title according to the nature of the grant. Nor does the mere fact that the party who furnishes the consideration is in debt at the time, or that judgments have been docketed against him, operate in the law to defeat a title so conveyed. . . . True, the law sometimes conclusively presumes a fraudulent intent from a transaction which necessarily and inevitably operates to hinder, delay, or defraud creditors; but no such transaction is pleaded here. There is no allegation of any fraudulent intent, nor that Oliver 0. Dalrymple was insolvent when this conveyance was made or at any time, and there is no such presumption arising from the facts pleaded.” Plaintiff in this action established prima facie a good and sufficient title as found by the trial court. No title, superior to that of the plaintiff shown by the necessary and satisfactory proof requisite, was [565] established by the defendant. The judgment of the trial court therefore is accordingly affirmed, with costs.