Anderson v. Blixt

• Decision Date: 11 October 1955
• Docket Number: No. 7505,7505
• Parties: Ruth ANDERSON, Plaintiff and Respondent, v. George C. BLIXT, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 799

72 N.W.2d 799

Ruth ANDERSON, Plaintiff and Respondent, v. George C. BLIXT, Defendant and Appellant.

No. 7505.

Supreme Court of North Dakota.

Oct. 11, 1955.

Rehearing Denied Nov. 22, 1955.

Syllabus by the Court

1. A demand for a trial anew in the notice of appeal to the Supreme Court is not sufficient. Such a demand must be included in the statement of the case. Section 28-2732, NDRC 1943.

2. Specifications of error accompanying the notice of appeal to the Supreme Court are sufficient if they reveal the precise questions presented to the trial court for determination.

3. A deed of homestead property executed by a husband to himself, his wife, and a third party as joint tenants with survivorship rights is void as to such third party by reason of the fact that the wife did not concur in and sign the same as grantor. Section 47-1805, NDRC 1943.

4. A lease of agricultural land reserving rent or service of any kind which 'shall continue so long as any one of the owners is still alive * * *', although of indefinite duration, is not a lease of agricultural land for a longer period than ten years, and the same is valid for the life of the surviving lessor or at least ten years from the date of the complete execution thereof if she lives that long. Section 47-1602, NDRC 1943.

5. Where the termination of an agricultural lease depends upon a contingency or future event, which may happen within the period of the statute, it cannot be said to be void ipso facto, as being for a longer period than ten years, but is for an indefinite period, which can only be made definite or fixed by the happening of the contingency or future event.

6. An option in the nature of a first preference to purchase contained in a lease of agricultural land, if and when a decision is made to sell, is a right to exercise a privilege granted to the optionee and becomes a mutual contract when an offer to sell is accepted by the optionee or his heirs under the terms of the lease.

7. Where one construction of a lease will make it legal and another one that will make it contrary to law, the former construction will be adopted, if reasonable.

8. Where a lease with an option to purchase is valid, if it should extend for a longer period than ten years, is not determined in this action.

Burnett, Bergesen, Whittlesey, Shermoen & Pancratz, Fargo, for defendant and appellant.

J. E. Hendrickson, Roy K. Redetzke, Fargo, for plaintiff and respondent.

JOHNSON, Judge.

This is an action to quiet title brought by Ruth Anderson, the record title owner of the Northwest Quarter (NW 1/4) of Section 12, Township 141 North of Range 51, Cass County, North Dakota. It is in statutory form.

The defendant asserts that he has an interest in the real property described in the complaint by reason of a lease with option to purchase dated August 11, 1950, and signed and acknowledged by Ruth Anderson, the plaintiff, and the defendant, George C. Blixt, and one Viktor Swanson, on that day, and by Andrew M. Anderson on October 2, 1950.

The lease with option to purchase, insofar as is pertinent to the issues, reads as follows:

'This Lease and Agreement Made this 11th day of August, 1950, by and between Andrew M. Anderson, Ruth Anderson, his wife, and Viktor Swanson, all of Argusville, North Dakota, hereinafter called the Owners; and George C. Blixt, of Argusville, North Dakota, hereinafter called the Tenant;

'Witnesseth; That the said owners, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said tenant, his heirs, executors and administrators, have demised and leased to the said tenant, all those premises situate in the County of Cass and State of North Dakota, and described as follows, to-wit:

'The Northwest Quarter (NW 1/4) of Section Twelve (12) Township One Hundred Forty-One (141) Range Fifty-one (51), Cass County, North Dakota;

'The term of this lease shall continue so long as anyone of the said owners is still alive or until the option hereinafter given shall have been fully exercised. * * *

'In consideration of the mutual promises contained herein and of $1.00 and other valuable consideration, receipt of which is hereby acknowledged by the owners, the undersigned owners hereby agree that if they should, individually or collectively, decide to sell his or her interest in the above described real property, that it is hereby given to the said tenant, George C. Blixt, his heirs, administrators, or executors, the option of purchasing the said farm at the agreed price of $65.00 per acre upon such terms as may then be agreed upon, with interest on any deferred payments at the rate of 3% per annum.

'Upon payment of the same the said parties agree to deliver to the said purchaser, warranty deeds to said premises together with abstract of title showing good and merchantable title in themselves free and clear of all encumbrances.

'This option shall continue in full force and effect until the same has been fully performed and shall be binding upon all the parties hereto, their heirs, administrators, executors and assigns.' (Emphasis supplied.)

This case was tried to the district court of Cass County, North Dakota, and determined in favor of the plaintiff. The court held that the lease and option were wholly and completely null and void and of no legal effect whatsoever. The defendant appeals.

Other facts necessary to the complete understanding of the issues involved are as follows:

On May 29, 1950, Andrew M. Anderson, the then owner of the land involved in this action, executed a warranty deed to himself, Ruth Anderson, his wife, and to one Viktor Swanson 'as joint tenants, and not as tenants in common, their assigns, the survivor of said parties, and the heirs and assigns of the survivor.' This deed was recorded in the office of the Register of Deeds, Cass County, on the 4th day of August, 1950, and appears in Book 207 of Deeds on page 633. The plaintiff, the wife of Andrew M. Anderson, did not sign as grantor, although the real property at the and herself. On August 11, 1950, Ruth Anderson, the plaintiff and respondent, and Viktor Swanson, and the defendant and appellant signed a lease with option to purchase, which is the subject matter of this action. This was later executed by Andrew M. Anderson. The defendant took possession of the premises under the lease and has been farming the land since. The lease with option was recorded in the office of the Register of Deeds of Cass County on the 8th day of November, 1950. Andrew M. Anderson, the plaintiff's husband, died on October 13, 1950, eleven days after he signed the lease and option to purchase. His estate was probated and final decree issued on the 22nd day of July, 1952. Under the terms of this decree the plaintiff acquired title to the property. On January 7, 1953, Viktor Swanson, one of the surviving grantees under the deed, sold and quit claimed his interest to Ruth Anderson. This deed was involved in a settlement of an action brought by Viktor Swanson against Ruth Anderson in which he had asserted a one-half interest in the land involved in this action. Thereafter she brought this action seeking the invalidity of both the lease and the option to purchase contained therein.

The lease and option cover agricultural land. It provides for delivery of one-half of the crops to the plaintiff, except corn, at an elevator to be designated from year to year. The lessee, Blixt, receives the corn crop in exchange for summer fallowing of an equal acreage planted to corn.

The defendant and appellant has assigned twelve specifications of error. The argument presented involves particularly three of these specifications. These are argued fully. With reference to the others the defendant and appellant refers to the argument made and says:

'If the specifications which are discussed in detail * * * are sustained, then the holding of the district court below must be reversed and judgment should be rendered in favor of the appellant and the validity of the lease with option to purchase sustained.'

The defendant and appellant first argues specification No. 9, in which it is stated:

'The District Court erred in its memorandum opinion in holding that the lease provisions of the lease with option to purchase dated August 11, 1950, (Exhibit 2) violates the provision of Section 47-1602 of the North Dakota Revised Code for 1943 by a failure to set a definite term not to exceed ten (10) years.'

The next specification argued is No. 7, in which the appellant states:

'The District Court erred in its Memorandum Opinion in holding that the lease with option to purchase dated August 11, 1950, (Exhibit 2), failed to create an option which the appellant can enforce.'

Next the appellant sets forth and argues specification No. 8, which is stated as follows:

'The District Court erred in its memorandum opinion in holding that appellant waived or abandoned any right under the lease with option to purchase dated August 11, 1950, (Exhibit 2), by failure to assert a right to buy from Viktor Swanson at the time Exhibit 4, a quit claim deed from Viktor Swanson to Ruth Anderson, was executed.'

The plaintiff and respondent contends that the specifications are invalid as they do not refer to the findings of the court or the conclusions of law, but to the memorandum opinion. Although a trial de novo was requested in the notice of appeal it was not made a part of the settled statement of the case. This court has held that such a request and demand for trial de novo is not sufficient. Retterath v. Retterath, 76 N.D. 583, 38 N.W.2d 409. Section 28-2732, NDRC 1943.

An examination of the specifications of error reveals a direct challenge of the trial court's conclusion,

'That the certain lease and option to purchase * * * is hereby declared wholly and completely null and void and of no legal effect whatsoever, * * *.'

Most of the specifications refer to designated findings of fact or...