Anderson v. Shelton

• Decision Date: 15 September 1958
• Docket Number: No. 7767,7767
• Parties: Belva ANDERSON, Plaintiff and Respondent, v. Robert SHELTON, also known as Robert H. Shelton; Williams County, North Dakota, a public corporation, Defendants, and Robert Shelton, also known as Robert H. Shelton, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 166

92 N.W.2d 166

73 A.L.R.2d 1087

Belva ANDERSON, Plaintiff and Respondent, v. Robert SHELTON, also known as Robert H. Shelton; Williams County, North Dakota, a public corporation Defendants, and Robert Shelton, also known as Robert H. Shelton, Defendant and Appellant.

No. 7767.

Supreme Court of North Dakota.

Sept. 15, 1958.

Syllabus by the Court

1. Chapter 235, Session Laws N.D.1939, requires that in tax deed proceedings the county auditor, in addition to serving the notice of expiration of the period of redemption by mail on certain specified persons including the record title owner, publish a notice of expiration of the period of redemption in a form prescribed by the statute. Opposite each description of real estate in this notice must appear the name of the record title owner thereof as shown of the records in the office of the register of deeds.

2. The Latin abbreviation 'et al.' is not sufficient to designate specific parties. It merely indicates that there are other parties not named and where the law requires notice to be given to a specific party or parties the abbreviation is insufficient to designate parties not specifically named.

3. Under the provisions of Section 47-0603, NDRC 1943 and its predecessor, Section 5471, C.L.N.D.1913, one who has been in actual, open, adverse and undisputed possession of land under color of title for a period of ten years and has paid all taxes and assessments legally levied thereon has a valid title thereto.

4. A contract valid on its face executed by a county for the sale of tax deed property under the provisions of Chapter 235, Session Laws N.D.1939, is sufficient to constitute color of title and will support a claim of adverse possession on the part of the purchaser when other elements of such possession are shown.

5. It is a general rule that the continuity of adverse possession of real property which began during the owner's lifetime is not interrupted by his death but continues to run against the owner's heirs.

6. On the death of an owner of real estate who dies intestate title and the right to possession thereof vest in his heirs subject to the administration of the estate including the right of the administrator to possession for the purposes of administration.

7. Where a tax deed issued to a county is void for want of service of a valid notice of expiration of the period of redemption upon the record owner of the land the title remains in the owner the same as if no tax deed proceedings had been taken.

8. Where the owner of real property dies intestate his heirs as co-owners and tenants in common each have a right to enter upon and take possession of such real estate subject to the right of possession of the administrator appointed by the court and subject to the equal rights of the other co-owners.

9. Section 30-1501, NDRC 1943, requires an administrator of an estate to list in the inventory thereof all the real and personal property of the decedent that has come to his knowledge but he is not chargeable with a breach of duty in failing to include in the inventory or other probate proceedings any interest in or title to land belonging to the decedent of which the administrator has no knowledge.

10. One who is in adverse possession of land who later and upon the death of the owner, intestate, acquires by inheritance an interest therein as a cotenant with other heirs but continues in exclusive possession under his original adverse entry is not required to perform any other or further act of ouster in order to maintain his adverse possession against his cotenants. The continuity of his original adverse possession is not interrupted by his acquisition of an interest in the property or by the cotenancy.

Dean Winkjer, Williston, for plaintiff and respondent.

Burk & O'Connell, Williston, for defendant and appellant Robert Shelton.

MORRIS, Judge.

The plaintiff brought this action to determine adverse claims to an undivided one-fourth interest in 160 acres of land in Williams County, North Dakota. The defendant Williams County defaulted. The defendant Robert Shelton, also known as Robert H. Shelton, answered by general denial and by alleging adverse possession and payment of taxes for over ten years under the provisions of Section 47-0603, NDRC 1943 as amended. He also counterclaimed alleging a fee simple title in himself and asked that title be quieted in him as against the claims of the plaintiff. The plaintiff replied to the answer and counterclaim denying new matter alleged therein and further alleging that Robert Shelton bases his claim to title upon tax deed proceedings that were defective and void and that title to the property remained in Theodore N. Shelton, who was the father of both the plaintiff and defendant, until his death in 1942 when it passed to his heirs.

The trial court found that the plaintiff is the owner of an undivided one-fourth interest in the property subject to an equitable lien in favor of Robert Shelton for one-fourth of the amount he paid to Williams County for the purchase thereof and for one-fourth of the taxes subsequently paid by him. From a judgment entered in favor of the plaintiff the defendant Robert Shelton appeals.

A patent to this land was issued by the United States to William A. Shelton on July 14, 1908. His estate was probated in the County Court of Williams County and a final decree therein entered on May 18, 1928 and on the same day recorded in the office of the register of deeds of that county decreeing the land to Theodore N. Shelton, son, and Cora Shelton, daughter, in equal shares. There is evidence in the record to the effect that Cora Shelton died many years ago and that in 1913 she was presumed dead because of an extended absence without being heard from and a probate of her estate was started. In the course of the probate proceedings the county court found that Cora Shelton died May 15, 1901. It was also stipulated between the parties to this action that Theodore N. Shelton was the sole survivor of William A. Shelton and it was further stipulated that Theodore N. Shelton was the sole heir at law of his sister Cora Shelton. Thus it appears that Theodore N. Shelton acquired by descent the entire title to the land in question.

On March 1, 1940, a tax deed was issued in the name of the State of North Dakota by the county auditor to Williams County and recorded in the office of the register of deeds on the same day. On May 16, 1941, Robert Shelton made a written application to the Board of County Commissioners of Williams County to purchase the property. On the same day the property was sold by the county to the applicant for $480. The terms were $120 in cash and $120 on January 1 of 1942, 1943 and 1944. The purchaser immediately took possession of the land, on which there are no buildings, and has been in possession since. Theodore N. Shelton died on February 12, 1942, some nine months after the purchase of the land from the county. On April 5, 1943, Robert Shelton was appointed administrator of the estate of his father Theodore N. Shelton who died intestate. The land which Robert Shelton had purchased from the county was not listed among the assets of the estate. The inventory shows that the estate consisted of a quarter section of land not involved in this litigation, household furniture appraised at $25 and eleven items of farm machinery of little value. On March 21, 1944, Robert Shelton having made the payments provided by his contract, Williams County executed and delivered to him a tax deed for the land which had been deeded to the county on March 1, 1940. On April 22, 1952, the county court entered a final decree of distribution in the Theodore N. Shelton Estate decreeing the same to the heirs as their interest therein then appeared, no reference being made to the land in litigation. This action was commenced by the plaintiff on March 26, 1953. At the time of trial Robert Shelton had not been discharged as administrator because of objections of the plaintiff.

The first question to be determined is that of the validity of the tax deed to Williams County. Neither the original deed nor the record thereof in the office of the register of deeds is in evidence. An abstract of title was introduced in evidence without objection. Entry No. 5 of this abstract shows that a tax deed was issued to Williams County on March 1, 1940. The terms of the deed are not set forth but it shows that the property was sold at tax sale, bid in by the county and that there was no redemption. It is argued by the plaintiff and the court found that a proper notice of expiration of period of redemption was not served on the record owners of the property as provided by Chapter 235, Session Laws N.D.1939, which was the law in effect at the time the tax deed proceedings were had. It appears that the records of the county auditor of Williams County pertaining to this property are incomplete. The notice of expiration of the period of redemption with proof of service thereof is missing from the files. We have held in certain instances where a part of a county auditor's files is missing that it will be presumed that the auditor performed his official duty in the absence of any proof to the contrary. See Coulter v. Ramberg, 79 N.D. 208, 55 N.W.2d 516; Remmich v. Wagner, 77 N.D. 120, 41 N.W.2d 170. In this case, however, the fragmentary files of the county auditor do show a failure to perform official duty with respect to service of the notice of expiration of the period of redemption.

Chapter 235, Session Laws N.D.1939, requires the county auditor in addition to serving the notice of expiration of the period of redemption by mail on certain specified persons including the record title owner, to publish a notice of the expiration of the period of redemption in a form prescribed by statute which includes the provision that:

'Opposite each description of real estate appears the name of the record title owner...