Giertsen v. Giertsen ( 1894 )

Gimtllan, C. J.

The complaint alleges that plaintiff’s husband, Neis H. Giertsen, held the title to one piece of real estate, and she to another piece, and that August 6, 1891, they executed a deed conveying both pieces to the defendant Herman J.; that this deed was without any consideration, but was made for the purpose of passing the title to the plaintiff, in connection with a deed to her to be executed by Herman J. and his wife, which they promised to execute, and that they did, on or about the same day, execute and deliver to her such deed, conveying to her the same pieces; that the former deed was recorded, and the latter was not, but remained in her possession until it was fraudulently got from her by the defendant Henry, and that November 23,1891, Herman J., with intent to defraud the plaintiff, executed to Eli Giertsen a mortgage for $5,000 on the two pieces, which was recorded, and which he assigned to the defendant Albertina. The gist of the relief asked is that plaintiff be adjudged the owner of the real estate, free from all liens put on it by defendants since August 6, 1891.

The answer denies that the deed from plaintiff to Herman J. was without consideration, that it was made for the purpose of passing the title to plaintiff, and that he and wife promised to execute a deed of the pieces to plaintiff, and alleges that it was executed as security for two notes of plaintiff and her husband held by Herman J.,— one for $3,400, and one for $1,500; and it denies that the deed from Herman J. to plaintiff was ever delivered, but alleges that it was placed in escrow with Henry Giertsen, to be delivered by him to her when those two notes should be paid, and that, without the notes being paid, it was, without authority, taken from the possession of Henry by plaintiff’s husband, and she got it from him, and that she voluntarily redelivered it to Henry.

There is a great deal more in the pleadings, but the above statement shows where the real stress of the controversy is.

The court below found the execution and delivery of the deed from plaintiff.and her husband to Herman J.; the making, November 16, 1891, of the deed from Herman J. and wife to plaintiff, and that it was deposited in escrow with Henry, to be delivered when the notes above mentioned should be paid, and that it was taken from his possession, without the knowledge or consent of Herman J. or his wife, or of Henry, by plaintiff’s husband, from whom she got it, and Henry afterward regained it from her. The evidence fully sustained these findings.

The court did not find either way upon the alleged want of consideration for the deed from plaintiff and her husband to Herman J., nor that its purpose was to pass the title to plaintiff, and the plaintiff did not ask any findings on those issues.

The court also found that the deed was executed to secure the notes above mentioned. The plaintiff assails this finding as unsup- • ported by the evidence. But, if that finding were set aside, then, on the other findings, the deed to Herman J. would stand as an absolute conveyance; and, the other deed never having been legally delivered, plaintiff would have no interest in the property. That finding is in her favor, and, if erroneous, she cannot complain of it, nor of the conclusion of law based on it, because she is not prejudiced.

There are a good many assignments of error to rulings of the-court in admitting or excluding evidence, but there is no error in any of them that affects the findings of fact that determine the case.

There is no assignment of error to any conclusion of law upon the facts found. Every such assignment assumes that some fact ought to have been found differently, so there can be no reversal or modification on such grounds.

But we will say that the direction for judgment ought, on an application by plaintiff to the court below, to be conformed to the essential conclusions of law, so that the judgment shall adjudge plaintiff to be the owner of the piece which she owned prior to the-deed of August 6th, and that that deed is in effect a mortgage on that piece and on the other piece to secure the said two notes, and that the mortgage from Herman J. to Eli is void.

Order affirmed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 1004.)