Fettig v. Estate of Fettig

934 N.W.2d 547

Howard F. FETTIG, Plaintiff and Appellee

v.ESTATE OF Anton L. FETTIG, Gerald A. Cullen as Conservator for S.F.F., Charles E. Fettig, Morgen J. Fettig, Gabriel W. Fettig, and all other persons known and unknown having or claiming any right, title, estate or interest in or lien or encumbrance upon the real property described in the complaint, whether as heirs, devisees, legatees or Personal Representatives of the aforementioned parties or as holding any claim adverse or Plaintiffs' ownership or any cloud upon Plaintiffs' title thereto, DefendantsandAnton Jacob Fettig, Defendant and Appellant

Morgen J. Fettig, Plaintiff and Appellee

v.Estate of Anton L. Fettig, Gerald A. Cullen as Conservator for S.F.F., Charles E. Fettig, Howard F. Fettig, Gabriel W. Fettig, and all other persons known and unknown having or claiming any right, title, estate or interest in or lien or encumbrance upon the real property described in the complaint, whether as heirs, devisees, legatees or Personal Representatives of the aforementioned parties or as holding any claim adverse or Plaintiffs' ownership or any cloud upon Plaintiffs' title thereto, DefendantsandAnton J. Fettig, Defendant and Appellant

No. 20190102

No. 20190103

Supreme Court of North Dakota.

FILED October 29, 2019

Christina M. Wenko, Dickinson, ND for plaintiffs and appellees.

Nathan M. Bouray, Dickinson, ND for defendant and appellant.

VandeWalle, Chief Justice.

[¶1] Anton Jacob Fettig appealed from two district court judgments quieting title to real property in McKenzie County. We conclude the district court erred in determining that the deed conveying the property was void, but that the issue is barred by collateral estoppel. We affirm.

I

[¶2] Anton L. Fettig (Anton) owned three parcels of real property located in McKenzie County [hereinafter referred to as section 5, section 17, and section 22].¹ On December 19, 2001, Anton executed a warranty deed conveying sections 5, 17, and 22 to his two minor children, A.J.F. and S.F.F. Anton recorded the deed the same day. At the time of the conveyance, A.J.F. and S.F.F. were approximately three and five years of age.

[¶3] On March 15, 2004, Anton received an email from Margit Williams, an attorney with the United States Department of Agriculture, stating that the Department considered the 2001 deed void, and that Anton still owned the land. As a result of this email, and in an attempt to clear title to the land, Anton executed a warranty deed on April 14, 2004, conveying the land back to himself. The deed named Anton as both the grantor and grantee. The deed was recorded the same day.

[¶4] On June 21, 2005, Anton executed a quitclaim deed conveying section 17 to his son Howard Fettig. The deed was recorded on May 11, 2006.

[¶5] On July 10, 2005, Anton executed a quitclaim deed conveying section 22 to his son Morgen Fettig. Also on July 10, 2005, Anton deeded section 5 to his son Charles Fettig. These deeds were both recorded on May 1, 2006.

[¶6] In January 2016, Charles Fettig filed suit seeking to quiet title to section 5. The complaint named Anton, Anton as conservator for A.J.F. and S.F.F.,² and Howard, Morgen, and Gabriel Fettig as defendants. Anton died on January 23, 2016. Charles and Anton as conservator for A.J.F. and S.F.F. each filed motions for summary judgment. In November 2016, the district court ordered summary judgment in favor of Charles. The court concluded that the 2001 deed conveying the land to A.J.F. and S.F.F. was void under N.D.C.C. §§ 9-02-02 and 14-10-10, and that Charles was the true and correct owner of section 5. None of the parties to this action appealed the court’s judgment.

[¶7] Because the district court ruled for Charles, Howard and Morgen filed separate suits seeking to quiet title to the sections previously conveyed to them (sections 17 and 22). These lawsuits named the estate of Anton L. Fettig, A.J.F., Gerald A. Cullen as conservator for S.F.F., Charles Fettig, Gabriel Fettig, and each other as defendants. A.J.F. answered and counterclaimed seeking quiet title to sections 17 and 22. Howard, Morgen, and A.J.F. each filed motions for summary judgment. On January 31, 2019, the district court ordered summary judgment in favor of Howard and Morgen. The district court concluded that the 2001 deed conveying the land to A.J.F. and S.F.F. was void under N.D.C.C. §§ 9-02-02 and 14-10-10, that Howard was the true and correct owner of section 17, and that Morgen was the true and correct owner of section 22. A.J.F. timely appealed the district court’s orders.

II

[¶8] Our standard for reviewing summary judgments is well-established:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.

Gerrity Bakken, LLC v. Oasis Petroleum N. Am., LLC , 2018 ND 180, ¶ 8, 915 N.W.2d 677 (quoting Arnegard v. Arnegard Twp. , 2018 ND 80, ¶ 18, 908 N.W.2d 737 ).

III

[¶9] Howard and Morgen contend that the 2001 deed conveying the land is void because A.J.F. and S.F.F. were minors at the time of conveyance and, therefore, could not enter into contracts relating to real property. A.J.F. argues that the conveyance was meant as a gift, and that contractual capacity was not needed for conveyance. In all three cases relating to the validity of the 2001 deed, the district court determined that the deed was void under N.D.C.C. §§ 9-02-02 and 14-10-10 because A.J.F. and S.F.F. were minors when the land was conveyed and lacked capacity to enter into contracts relating to real property. We cannot agree with Howard and Morgen’s argument or the district court’s determination that the 2001 deed is void under N.D.C.C. §§ 9-02-02 and 14-10-10.

[¶10] Title to property of any kind may be transferred from one living person to another. See N.D.C.C. §§ 47-09-01, -02. Voluntary transfers are executed contracts, subject to all rules of law concerning contracts, except that consideration is not necessary for the transfer to be valid. N.D.C.C. § 47-09-03. "An estate in real property ... can be transferred ... by an instrument in writing, subscribed by the party disposing of the same ...." N.D.C.C. § 47-10-01. A deed is a writing sufficient to transfer an estate in real property. See Mehus v. Thompson , 266 N.W.2d 920, 925 (N.D. 1978). We have stated that deeds are contracts and are generally construed in the same manner as contracts. Motter v. Traill Rural Water Dist. , 2017 ND 267, ¶ 10, 903 N.W.2d 725 ; Riverwood Commercial Park, LLC v. Standard Oil Co. , 2011 ND 95, ¶ 7, 797 N.W.2d 770 ; Radspinner v. Charlesworth , 369 N.W.2d 109, 112 (N.D. 1985).

[¶11] Generally, "[a] contract requires parties capable of contracting, consent of the parties, a lawful object, and sufficient consideration." Stout v. Fisher Indus., Inc. , 1999 ND 218, ¶ 11, 603 N.W.2d 52 ; N.D.C.C. § 9-01-02. "[P]arties capable of contracting" refers to the contractual capacity of the parties. See Galloway v. Galloway , 281 N.W.2d 804, 805-06 (N.D. 1979). Whether a minor is capable of contracting (i.e., possesses contractual capacity) is provided for in N.D.C.C. ch. 9-02. Section 9-02-02, N.D.C.C., states: "Minors and persons of unsound mind have only such capacity as is specified in statutes relating to such persons." Under N.D.C.C. § 14-10-10, "a minor may make any contract other than contracts specified in section 14-10-09 in the same manner as an adult, subject only to the minor’s power of disaffirmance." Section 14-10-09, N.D.C.C., provides: "A person under the age of eighteen may not make a contract relating to real property or any interest therein ...."

[¶12] However, when a voluntary transfer is intended as a gift, the rules of law concerning gifts, not contracts, applies. See Bleick v. N.D. Dep't of Human Servs. , 2015 ND 63, ¶ 19, 861 N.W.2d 138 ; Doeden v. Stubstad , 2008 ND 165, ¶ 12, 755 N.W.2d 859. A valid gift requires donative intent, actual or constructive delivery, and acceptance by the donee. Kovarik v. Kovarik , 2009 ND 82, ¶ 13, 765 N.W.2d 511 ; In re Paulson’s Estate , 219 N.W.2d 132, 134 (N.D. 1974) ; In re Kaspari’s Estate , 71 N.W.2d 558, 567 (N.D. 1955) ; Ramsdell v. Warner , 48 N.D. 96, 183 N.W. 281, 283 (1921). These requirements apply to gifts of both real and personal property. See Lindvig v. Lindvig , 385 N.W.2d 466, 469 (N.D. 1986) (citing Hagerott v. Davis , 73 N.D. 532, 551, 17 N.W.2d 15, 25 (1944) ); Paulson’s Estate , at 135.

[¶13] Consistent with our previous holdings and general principles of law, we hold here that a donative transfer of real property, intended as a gift, between a parent and child need not comport with all rules of law concerning contracts. See 67A C.J.S. Parent and Child §§ 306 - 318 (2019) ; Restatement (Third) of Property §§ 6.1, 6.3, 8.2 cmt. e (2003). Rather, such a transfer must be consistent with the rules of law concerning gifts and transfers of real property as provided in N.D.C.C. § 47-10-01. Therefore, a gift of real property to a minor does not fall within the purview of N.D.C.C. §§ 14-10-09, -10.

[¶14] Because real...