Berg v. Kremers

• Decision Date: 08 December 1970
• Docket Number: No. 8637,8637
• Citation: 181 N.W.2d 730
• Parties: Shirley BERG and Thomas Neidlinger, Plaintiffs and Respondents, v. Rosamond KREMERS and Larry Kremers, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 730

181 N.W.2d 730

Shirley BERG and Thomas Neidlinger, Plaintiffs and Respondents, v. Rosamond KREMERS and Larry Kremers, Defendants and Appellants.

Civ. No. 8637.

Supreme Court of North Dakota.

Dec. 8, 1970.

Syllabus by the Court

1. Under Section 32--16--12, N.D.C.C., partition is a matter of right when several cotenants are in possession of real property as tenants in common.

2. It is for the court to determine whether the premises can be physically partitioned or whether the premises should be sold at partition sale and the proceeds divided among the tenants in common.

3. Where it can be had without great prejudice to the owners, the law favors a partition in kind rather than a sale and a division of the proceeds among the owners.

4. Whether a finding of 'great prejudice' exists in a decision to partition in kind is a question of fact to be determined by the trial court and, absent an abuse of discretion, its decision will not be disturbed on appeal.

5. The test of whether partition in kind would result in great prejudice to the owners is whether the value of the share of each owner, in case of a partition, would be materially less than his share of the money equivalent that could probably be obtained for the whole.

6. In devising a partition plan without causing great prejudice to the owners, the trial court may take into consideration the situation of the parties and their respective financial abilities, the location and the character of the property, and the size and utility of the respective shares if a partition in kind were made.

7. Evidentiary facts showing four quarters of very good farmland of approximately equal value which would not be materially lessened in value by dividing into two half-sections will sustain a finding that partition in kind can be made without serious loss to the parties.

8. On trial de novo of a partition action in the Supreme Court, where the evidence is such that the appellate court is in full agreement with the lower court's findings, they will be approved and judgment affirmed.

9. For reasons stated in the opinion, the accounting of the trial court is approved as modified with respect to correction of a figure of expense.

Faegre & Benson, Minneapolis, Minn., and Floyd B. Sperry, Bismarck, for defendants-appellants.

Traynor & Traynor, Devils Lake, and Barnett, Ratelle, Hennessy, VanderVort & Stasel, Minneapolis, Minn., for plaintiffs-respondents.

HAMILTON E. ENGLERT, District Judge.

This is an appeal from the final judgment and the addendums thereto, which also denies the motion for a new trial, of the district court of Ramsey County in a partition and settlement of accounts action.

The four parties to this action, two plaintiffs and two defendants, are the owners in cotenancy of a section of farmland.

Testimony showed that one E. A. Neidlinger died in 1957, leaving a will in which he gave a life estate in said farmland to his wife, and devised the remainder interest in said property to the following persons in the following proportions:

Rosamond Kremers (daughter) 30%

Larry Kremers (grandson) 20%

Thomas Neidlinger (grandson) 20%

Shirley Berg (granddaughter) 20%

Mildred Neidlinger (daughter-in-law) 10%

The life tenant, grace Neidlinger, died in 1964, and thereafter one of the remaindermen, Mildred Neidlinger, conveyed her undivided 10% Interest in said property, in equal shares to Thomas Neidlinger and Shirley Berg.

At the time this action was commenced the respective interests of the parties in the farmland were: Plaintiff Shirley Berg, an undivided 25%; plaintiff Thomas Neidlinger, an undivided 25%; defendant Rosamond Kremers, an undivided 30%; and defendant Larry Kremers, an undivided 20% Thereof.

Evidence was presented to the trial court at three separate hearings. Testimony was heard as to the partition action in October of 1966, following which, upon partition in kind, an appeal was taken to the Supreme Court by the defendants. We dismissed that appeal as not being from a final judgment, and therefore not appealable. The matters of accounting and other issues set forth in the counterclaim had not been adjudicated. Berg v. Kremers, 154 N.W.2d 911 (N.D.1967).

Thereafter, further evidence was submitted in the case in July and December of 1968.

This appeal is now from the final judgment in the case deciding all issues set forth in the pleadings. Defendants have demanded a trial de novo.

The complaint of the plaintiffs seeks partition of a section of farmland, an accounting of the 1965 crop, and division of the net proceeds.

Defendants' answer and counterclaim ask that a sale of the farm property and certain residential lots be made and the proceeds divided according to the respective interests of the parties. The counterclaim further demands an accounting as to farming operations thereon during 1965, 1966, and to date of trial.

The residential property has been sold under stipulation, and no issue remains thereto.

As stated in Section 32--16--01, N.D.C.C., partition is a matter of right when several cotenants are in possession of real property as tenants in common.

The section of land involved herein consists of three quarters which are coterminous and one quarter situated approximately one mile west, each quarter being of approximately equal value. The plaintiffs testified that it was all worth around $85 an acre. The defendants followed with evidence that the land was worth approximately $100 an acre if sold as one farm unit. The testimony showed that over the years. the four quarters of farmland have been rented by as many as three separate tenants in one year.

As a part of the proceedings in such an action, the trial court appointed three referees as set forth in the statutes and, following their report, partitioned the farmland as follows: to the defendants, Rosamond Kremers and Larry Kremers, the North Half of Section 20; and to the plaintiffs, Shirley Berg and Thomas Neidlinger, the Southwest Quarter of Section 17 and the Northwest Quarter of Section 24.

The primary question presented on this appeal is whether or not the trial court committed error in the holding that the defendants failed to establish by a preponderance of the evidence that 'great prejudice to the owners' would result from a partition of the farmland. Should the court, from the evidence, have ordered a sale and division of the proceeds for the reason that the property was shown to be so situated that a partititon could not be made without great prejudice to the owners?

Section 32--16--12 of the N.D.C.C. on partition states:

'If it is alleged in the complaint and established by evidence, or if it appears by the evidence without such allegation in the complaint, to the satisfaction of the court, that the property, or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof. Otherwise, upon the making of requisite proof, it must order a partition according to the respective rights of the paries as ascertained by the court and appoint three referees therefor, and must designate the portion to remain undivided for the owners whose interests remain unknown or unascertained.'

In line with our North Dakota statutes:

'The court must decide in partition action whether the premises can be physically partitioned or whether the premises should be sold at partition sale and proceeds divided among the tenants in common.' murphy v. Connolly, 81 S.D. 644, 140 N.W.2d 394 (1966).

With respect to whether or not 'great prejudice' exists in a partition action, we adhere to the following test as set by the courts:

'The generally accepted test of whether a partition in kind would result in great prejudice to the owners is whether the value of the share of each in case of a partition would be materially less than his share of the money equivalent that could probably be obtained for the whole.' 40 Am.Jur. Partition, Sec. 83 at 74. See also, 10 of the Syllabus in Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950).

The burden is on the one demanding a sale to prove that partition in kind cannot be made without great prejudice to the owners.

In regard to whether a sale shoudl be made, courts with statutes similar to North Dakota have held as follows:

'Sale of realty should not be made for purpose of partition unless it is necessary to protect parties from serious loss.' White v. Tillotson, 256 Wis. 574, 42 N.W.2d 283 (1950);

and further:

'A sale of land in partition should not be ordered, unless it is necessary to protect the parties from serious pecuniary injury.' Idema v. Comstock, 131 Wis. 16, 110 N.W. 786.

We find no North Dakota decisions covering the main points involved in the instant appeal. This necessitates a more comprehensive discussion of whether or not a sale should be made in a partition action.

Appellants cite a number of cases wherein the trial court ordered a sale of the property from the evidence in the case and, on appeal, these decisions were affirmed. Idema v. Comstock, Supra; Leavitt v. Benzing, 97 N.H. 118, 82 A.2d 86 (1951); Blanchard v. Cross, 97 Vt. 370, 123 A. 382 (1924); Hagerty v. Nobles, 244 Or. 428, 419 P.2d 9 (1966); Nelson v. Hendricks, 74 S.D. 441, 54 N.W.2d 324 (1952); Kluthe v. Hammerquist, 45 S.D. 476, 188 N.W. 749 (1922); Henkel v. Henkel, 282 Mich. 473, 276 N.W. 522 (1937).

In other cases wherein the trial courts ordered a sale, the higher court on appeal reversed the trial court and ordered a partition in kind. Trowbridge v. Donner, Supra; White v. Tillotson, Supra; Williams v. Wells Fargo Bank & Union Trust Co., 56 Cal.App.2d 645, 133 P.2d 73 (1943).

A further contention of appellants is that they had an absolute right to a partition by sale since the property is so situated that partition in kind cannot be made without great prejudice to the owners. In support of this contention they cite the South Dakota case of Nelson v. Hendricks, Supra.

We...