(180 N.W.)

ened also by the fact that section 751 is included as a part of chapter 6 and not as a part of chapter 7, and that chapter 6 has in it no requirement for a resolution of necessity unless it be found in this clause..

On the other hand, if the position of the defendant be adopted, there was no occasion at all for any reference to chapter 7. Without such reference, the other provisions of section 751 would imply power to order special assessments according to benefit. It must be held therefore that chapter 7 is to some extent at least applicable to the case. The extension of the street is classified under section 751 as a street improvement. The reference therein to chapter 7 must be deemed therefore to refer to those sections of chapter 7 which deal with street improvements. This is the subject-matter of sections 810 to 836 of such chapter.

We see no way to give effect at all to the reference contained in section 751 except to apply to such section all those sections of chapter 7 which deal with the subject of street improvements and the procedure therefor, whenever it is proposed under section 751 to pay the cost of the street improvement by special assessment upon adjacent property. Such reference does not apply when it is proposed to pay the cost out of the general

fund or out of highway or poll taxes.

It is our conclusion therefore that the contention of the plaintiffs as appellees must be sustained.

The defendant did plead estoppel, but we find no evidence in the record tending to sustain such pleading.

The decree entered below must, accordingly, be affirmed.

2. Trusts 81 (2)-Resulting trust adjudged in favor of husband who bought and paid for land title to which was taken in his wife's name.

In an action to declare a deed a deed in

trust and to determine adverse claims, where the trial court has found that the husband, the plaintiff, bought 320 acres of land in 1901 and took the title thereto in the name of his wife. and that such husband farmed, cultivated, and improved the same and alone paid all of the consideration therefor, and where it appears from the proper testimony in the record that such findings are amply sustained, and that the presumption of gift or settlement arising from the relations of the parties (husband and wife) is negatived by affirmative evidence in the record, and that such deed was not so made for any purpose of avoiding claims or demands against the husband, it is held, that a resulting trust arose in favor of the husband, pursuant to section 5365, Comp. Laws 1913.

Birdzell, J., and Christiansen, C. J., dissenting.

Appeal from District Court, Rolette County; Butz, Judge.

Action by Napoleon Roberge against NaRoberge and others to declare a deed a deed poleon E. Roberge, Estras Roberge, and Anne in trust and to determine and fix claims. Judgment for plaintiff, and the named de

fendants appealed and demand a trial de novo. Affirmed.

Duncan J. McLennan, of Rolette, and Henry G. Middaugh, of Duluth, Minn., for appellants.

Verret & Stormon, of Rolla, for respondent.

BRONSON, J. Statement.-This is an action to declare an absolute deed a deed in

WEAVER, C. J., and PRESTON and SAL- trust and to determine adverse claims in INGER, JJ., concur.

ROBERGE v. ROBERGE et al. (Supreme Court of North Dakota. Oct. 19, 1920. Rehearing Denied Nov. 9, 1920.)

(Syllabus by the Court.)

320 acres of land. The substantial facts, so far as the same are deemed necessary to be stated, are as follows: The plaintiff, now about 70 years old, was married to his wife, Virginie, in 1877. She died in December, 1909, leaving, as the result of such marriage, six children, the defendants herein, only three of whom have contested this action, and only two of whom have appealed from the decision rendered by the trial court. In October, 1901, the land involved was purchased from one Coloton, for $1,400, and deeded to the wife, Virginie. This consideration was paid by $200 in money borrowed, and by notes secured by a mortgage deed upon this land, signed by Virginie, and her husband, the plaintiff. The notes for $100 In an action under the Newman Act (sec- each fell due in consecutive years commenction 7846, Comp. Laws 1913) prior to the ing in November, 1902. The plaintiff testiamendment of chapter 8, Laws 1919, the Su-fied that when they married his wife had preme Court upon appeal reviews the proper testimony in the record, and it is to be pre-no property, and he, about $200 or $300; sumed that the findings of the trial court are they lived in Massachusetts for about 17 based upon proper testimony in the record, un- years and then came to North Dakota; he less the contrary is made to appear. had another half section of land in his own

-

In

1. Appeal and error 837(11), 931(6)
trial to court under Newman Act Supreme
Court presumes findings based on proper tes-
timony.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and to quiet title in the land. Three of the children, Napoleon, Estras, and Anne answered, claiming each an undivided oneninth interest therein. In 1916 the trial was had. Finally, in January, 1920, findings were made by the trial court that the plaintiff purchased, farmed, cultivated, and improved this land and paid the consideration agreed therefor; that a trust resulted in favor of the plaintiff in such land; and that the plaintiff is the owner in fee thereof. Pursuant to such findings, judgment was entered from which two of the children, Estras and Anne, have appealed and demand a trial de novo in this court.

name; in 1901 he learned that the land in 1915 to have the deed declared a trust involved was for sale; he bought it, borrowed $200 to make the first payment, and thereafter paid the notes of $100 each until they were all paid out of his own moneys; most of these payments were made from moneys received in the operation of a threshing machine; later, buildings were constructed on this land; there he and his wife lived, and there she died; he broke the land, cropped it, received the crop proceeds, paid the taxes, and has occupied it ever since; at the time of the purchase he was advised by John Burke, then an attorney, now United States Treasurer, and also a county commissioner, to put the title in his wife's name; he told his wife; she said she would sign her name, but that the farm would belong to him and not to her, that she would sign her name for trust and for protection and for "our old age." (The husband and wife were French and spoke French.)

Contentions.-The appellants contend that the testimony of Ovilar, Philias, and the daughter, Virginie, concerning the transac tions had with the deceased mother, was incompetent under the provisions of the statute (section 7871, C. L. 1913); that the rec ord fails to show proof so clear, specific, and satisfactory as to establish a resulting trust; that the purchase price of the land, in fact, was paid out of the profits from the land itself; that in truth the consideration was paid or contributed by the wife as well as the husband so that the principle concerning resulting trusts cannot apply; that the record discloses rather a trust for both of the parties for their old age, and an intent to place the title where the land would be clear from the debts of the plaintiff. The respondent further contends that the record clearly supports the findings of the trial court of the existence of a resulting trust free from any showing whatever, of any intent to make a gift or advancement of the

Philias, a brother of the plaintiff, testified that at the time the deed was made the wife said that she did not own the land; that it was in her name, but she never paid a cent for it; that her husband paid for it; that the plaintiff borrowed money from him to pay for this land; that he told him he was going to buy this land and pay for it out of the threshing machine. The witness Wagner testified that he was in the real estate business in 1901 and sold this land to the plaintiff; that he made the deal with the plaintiff; had no dealings with the wife; the plaintiff made the loan from his firm to apply on the purchase price. The daughter Anne testified that the mother picked out the place on the land for building the home; that the mother kept the money for every-land to the wife or to protect the plaintiff thing that was sold on the place; that it was given to mother and she would keep it for father; that she has seen her brother haul grain and bring the money home and give it to mother to put in a box; that afterwards she would give it to Ovilar to make payments on the land. Estras, a son, testified that his mother had charge of this box; that his father put money in that box and when he would pay anything he took it out of that box; that his father called this land mother's land.

Louis Roberge, a brother, testified that the plaintiff had stated several times that the land belonged to his wife; that in 1905 there were some charges on this land, but that he had paid some of them with profits earned with his threshing machine. Plaintiff testified concerning the box that it was kept only for small change, and that his wife put change money in it. He further testified that the land is not very good soil; that the S. E. quarter is worth about $3,000 with the buildings on it, and the other quarter about $2,500 to $2,800.

from any claims or demands against him.

[1] Decision.-This action was tried before the court under the so termed Newman Act (section 7846, C. L. 1913) prior to the amendment of chapter 8, Laws 1919. Under the act all of the evidence offered shall be received. The record accordingly is before this court with both the proper and improper testimony included. This appeal is here therefore for review upon the proper testimony in such record with the usual weight and influence accorded to the findings of the trial court that obtain in such cases. It will be presumed that such findings are based upon proper testimony in the record unless it appears to this court upon the review of the record that the contrary is the case. See Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58; Christianson v. Warehouse Ass'n, 5 N. D. 438, 444, 67 N. W. 300, 32 L. R. A. 730; Carter v. Carter, 14 N. D. 66, 103 N. W. 425.

Upon the oral argument the respondent practically conceded that the testimony of the sons Ovilar and Phileas, and the daughThis action was started by the plaintiff ter Virginie, concerning transactions had

(180 N.W.)

with their deceased mother, as herein in- [ The presumption stated in the statute volved, were incompetent under the statute therefore obtained provided the presumption (section 7871, C. L. 1913), but contended that the evidence otherwise is amply sufficient to sustain the findings of the trial court. In view of the conclusion to which this court has arrived upon the record, it is deemed unnecessary to pass upon or discuss the competency of such testimony under the statute. The court is satisfied that the findings of the trial court are amply sustained without any consideration of such testimony or the alleged hearsay testimony to which the appellants have also objected.

title and the complete beneficial interest would have merged in her. In fact, she had a beneficial interest from the beginning, and the most the plaintiff ever had after the original conveyance, according to the legal effect of the transaction as disclosed by his own testimony, was a charge upon the estate for his own support in old age. See Perry on Trusts, § 152; Pomeroy's Equity Juris

from the testimony of the plaintiff himself (wife, the grantee in the deed, the heirs could with regard to the nature of the transac- not have established a trust, for the legal tion when the land was conveyed to his wife. The consideration was not paid at the time the property was purchased, but was paid later, largely from the earnings of the farming operations upon the land in question. The grantee in the deed was shown to have been an important factor in the operation of the farm. So it was really paid out of the joint earnings of the husband and his wife. Where a husband causes property to be transferred to his wife or to be taken in his prudence, § 1033. In the light of the plainwife's name, a presumption of gift or set-tiff's own testimony, he surely could not tlement arises which must be overcome be- have secured a reconveyance during the life of the grantee, and, as I view the case, he is fore a court is justified in directing a reconveyance. See Pomeroy on Equity Jurispru- in no better position to do so after her death. Viewing the case in this light, I am undence, 1039; Perry on Trusts, §§ 143, 147. It does not seem to me that this presump- able to concur in the majority opinion. tion is overcome in this case. The testimony of the plaintiff himself goes a long way toward disproving the existence of a resulting trust for his benefit. He testified:

'Well,' says I, 'if I can get the $200, I believe I will try it,' and Mr. Wagner commences to make the deed out in my name, and that farm I was going to buy they were mortgaged up lots of times, and I didn't want to do any business without getting anybody to look the thing up for me, so I went down to get John Burke. Mr. Burke came to Mr. Wagner's office, and he looked things over, and Mr. Wagner asked me if I have any bond. That is all I could remember now. I told him I could get some. Mr. Burke says, 'Mr. Roberge, why don't you put that in your wife's name?' and Mr. Godfrey says that too.

"Q. Both men? A. Both men. He says, 'If there is any bond to be paid, you pay that yourself.' Then, 'For the reason it will get it in trust for you in your old age, you and your wife,' and I told Mr. Burke and Mr. Godfrey that I didn't see no difference between my name and my wife's name. Mr. Burke told me, he says, 'If you want to keep it in trust for your old age, that is the way you have got to do it.' So they made them papers, and I went down home with them papers and I told my wife, 'Here is the property for our old age,' and she says, 'I don't want to have those in my name.' She says, 'I am not supposed to know anything about farming or anything of that kind.' Says I, 'I was advised by the two wisest men in the county to do that for our protection for our old age.' My wife replied, she says, 'In this case I sign my own name, but she says the farm will belong to you and not to me.' She says, 'I will sign my name for trust and for protection for our old age.' She says, first, 'If I die I don't know whether it will be next year or 10 years or 20 years or 50 years. And you don't have no trouble with nobody, and I suppose if you die yourself it will be something for me. It is a trust, those papers for our old age.' So she signed them, and

*

*

I sent them to Mr. Burke."

From this testimony it would seem to be clear that, if the plaintiff had died before his

CHRISTIANSON, C. J. I concur in the foregoing opinion of Mr. Justice BIRDZELL,

CHRISTENSON v. GRANDY et al.

(Supreme Court of North Dakota. Oct. 20. 1920. Rehearing Denied Nov. 9, 1920.)

(Syllabus by the Court.)

I. Guardian and ward 125-Guardianship held to terminate within statute of limitations when minor attains majority; statute of limitations held to apply to suit to recover land conveyed by guardian.

Section 8923, Comp. Laws 1913, which provides: "No action for the recovery of any estate sold by a guardian can be maintained by the ward or by any person claiming under him unless it is commenced within three years next

after the termination of the guardianship or when a legal disability to sue exists by reason of minority or otherwise at the time when the cause of action accrues within three years next after the removal thereof," construed, and

held:

(1) That within the purview of said statute the guardianship is terminated when the minor attains his majority.

(2) That in the instant case wherein it appears that a guardian was duly appointed; that such guardian presented a petition setting forth certain alleged reasons why certain land belonging to the minor wards should be sold; that the county court made a decree upon such petition awarding the land to the guardian to enable her to make conveyance to the purchaser, and required the guardian to furnish an additional bond in an amount exceeding the apprais

ed value of the land; and that such guardian thereafter sold and conveyed the land to a purchaser, who paid the purchase price and commenced to exercise full and complete control over the premises as owner, the limitation prescribed in such statute is applicable.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(Additional Syllabus by Editorial Staff.)

2. Courts -"Jurisdiction" defined.

(180 N.W.)

said order, convey said premises to one Frank W. Wilder by warranty deed, which was du

“Jurisdiction” is the power to hear and de-ly recorded in the office of the register of termine, and implies the power of the court to exercise some judgment, and make some determination (citing Words and Phrases, "Jurisdiction").

deeds of Cavalier county, N. D., on April 12, 1892; that said Wilder paid to the said Margriet Myrdal the sum of $710 for her share, and for the shares of said three appellants in and to said land; that the said land was

Appeal from District Court, Cavalier Coun- subsequently sold, and conveyed to various ty; Kneeshaw, Judge.

Action by Charlie Christenson against Mrs. Margriet Grandy, Ragnhildur Myrdal, and Johann Vilhjalmur Myrdal and others. From the judgment rendered the last two named defendants appeal. Affirmed.

E. E. Fletcher, of Langdon, and McIntyre & Burtness, of Grand Forks, for appellants. G. Grimson, of Langdon, and Bangs, Hamilton & Bangs, of Grand Forks, for respond

ent.

CHRISTIANSON, C. J. This is an action to determine adverse claims to a quarter section of land in Cavalier county. The trial court rendered judgment in favor of the plaintiff and the defendants Ragnhildur Myrdal, Johann Vilhjalmur Myrdal, and Einar Myrdal have appealed and demanded a tri

al de novo in this court.

The complaint is in the usual form, and sets forth that the plaintiff has an estate in fee simple in the premises in controversy, and is in possession thereof, and that the de

fendants claim certain estates or interests in

or liens or incumbrances on said property adverse to plaintiff. The prayer for judgment is that the defendants be required to set forth their claims, and that such claims be adjudged null and void; that title be quieted in the plaintiff as to all claims of the defendants, and that the defendants be forever debarred and enjoined from asserting the same. Ragnhildur Myrdal, Johann Vilhjalmur Myrdal, and Einar Myrdal in their answer aver that they are the owners of a threefourths fee-simple estate in the land by reason of their being the heirs of one Einar E. Myrdal; and by virtue of the patent for said premises issued by the United States government to "the heirs of Einar E. Myrdal, deceased," on December 21, 1891. To this answer plaintiff interposed a reply, wherein he averred that in proceedings had in the county court of Cavalier county the said defendant Margriet Myrdal was, on August 26, 1891, duly appointed guardian of the said above-named three appellants, and that subsequently it was ordered by the county court of Cavalier county in said proceeding that the land in controversy be awarded to the said Margriet Myrdal, with privilege to sell the same at public or private sale; that said final decree so adjudging was entered on March 7, 1892; that the said Margriet Myrdal did, on March 30, 1892, in pursuance of

parties by instruments of conveyance duly recorded; that the plaintiff purchased the same cn December 11, 1914, from the then record owner thereof; that since the purchase by said Wilder on March 30, 1892, said Wilder, and those holding under him or them, have been in possession of said premises, and have paid all taxes assessed against red, among other things, that the said dethe premises. The said reply further averfendants are barred by various statutes of limitation, including section 8923, C. L. 1913, from maintaining an action for the recovery of said land, and that appellants have been guilty of laches in asserting their alleged rights to said land, and hence are estopped from now asserting such rights.

The material facts are undisputed, and 1890, one Einar E. Myrdal and his wife and may be summarized as follows: In May, children moved on the premises in controversy. der the United States pre-emption laws. On Myrdal had entered such premises unApril 12, 1891, Einar E. Myrdal died, leaving

surviving him as his heirs at law his widow, three children, the appellants in this case. Margriet (now Margriet Grandy), and his Shortly after the death of her husband Mrs. Myrdal and the children moved to the vicinity of Gardar in Pembina county, some 12 or 15 miles distant from the land in controversy, at which latter place her deceased husband owned a 40-acre tract of land. Judging from her testimony she had little or no faith in the land in controversy. It seems that she had virtually made up her mind to abandon it, and it is very doubtful if she ever would have made final proof thereon if it had not been for Bjorn Bjornson, who apparently had some claim against the deceased, Einar E. Myrdal, and through his solicitation and assistance, Mrs. Myrdal was induced to make final proof thereon. Bjornson took the matter up with one Blichfelt, who at that time was engaged in the real estate business at Langdon, and induced him (Blichfelt) to advance the necessary moneys to pay the government the purchase price and the costs and expenses incident to the final proof. It also appears that these parties after the final proof had been made induced Mrs. Myrdal to make application to the county court to be appointed guardian of the three minor children. She was so appointed guardian by order of the county court on August 21, 1891. On December 21, 1891, patent was issued by

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes