Gehlhar v. Konoske

• Decision Date: 05 December 1924
• Docket Number: 22635
• Court: North Dakota Supreme Court

201 N.W. 341

51 N.D. 913

CAROLINE GEHLHAR, Respondent, v. HERMAN KONOSKE, John Konoske, Elsie Konoske, W. B. S. Trimble Company, a Corporation, Herman Rode, Rosena Konoske, John A. Konoske, Mary Konoske, Arthur Konoske, and all Persons Unknown Claiming any Estate or Interest in the Property Described in the Complaint, Defendant. HERMAN KONOSKE, Appellant

No. 22635

Supreme Court of North Dakota

December 5, 1924

From a judgment of the District Court of Stutsman County Jansonious, J., defendant Herman Konoske appeals.

Reversed in part.

Reversed and remanded.

C. S Buck, for appellant.

John A Jorgenson, for respondent.

CHRISTIANSON, J. BRONSON, Ch. J., and NUESSLE and JOHNSON, JJ., concur. BIRDZELL, J., dissents.

OPINION

CHRISTIANSON, J.

This is a sequel to Gehlhar v. Konoske, 50 N.D. 256, 195 N.W. 558. By that decision it was established that plaintiff and her two brothers in 1908 entered into a joint enterprise in course of which they acquired certain lands in Stutsman County in this state. Under the arrangement between the plaintiff and her brothers, the brothers farmed the land, and she served as their house-keeper. Plaintiff discontinued her service in November or December, 1915. In the former decision in this case this court held that at this time, to-wit: when plaintiff's services were so discontinued," she was entitled to an undivided one-third interest in this land to the extent of the right interest and equity of this joint adventure so earned at that time." 195 N.W. 558, 563. In considering the question of how this interest might be ascertained this court said: "If the land then (at the time plaintiff ceased to participate actively in the joint adventure), for the purposes of liquidating the joint adventure and paying each of the joint adventurers, had been sold and the cash therefor, less the liens, brought into court for an accounting, it would have been a simple matter to have divided the cash among the parties. But, the land has not been sold; it has remained in specie; subsequent liens have attached; taxes and interest subsequent have accrued; use and occupation of the land has been had. An accounting in equity now must be had for the purpose of this joint adventure. In order to have such accounting now, the net value of the joint adventure concerned must be considered as if the property which constituted the assets of the joint adventure was in court now and was liquidated in cash less the liens that existed thereupon at the time when plaintiff's active relations ceased and the joint adventure was accomplished. The net assets of such joint adventure then remaining must necessarily be balanced by deducting or adding thereto as equity may determine in considering all the circumstances, the use and occupation of the land subsequent, less or plus the interest on the liens existing at the time when plaintiff's active relations ceased, and the taxes and assessments. In other words, equity must ascertain the value of this joint adventure, as it existed when it was accomplished and when plaintiff's active relations ceased, upon the basis of the present value of the land." (195 N.W. 558, 563).

In accordance with the decision of this court, the cause was remanded to the district court, and a hearing was there had along the lines outlined in the decision. Upon such hearing evidence was adduced as to the value of the land, both at the time plaintiff's active participation in the joint enterprise ceased, and at the time of the trial; the amount of outstanding liens against the premises; the amount of taxes and interest payments made by the defendant; and the reasonable rental value of the land during the years it had been occupied by the defendants. Upon such hearing it was also established that after plaintiff's active participation in the joint adventure had ceased and prior to the commencement of the present action the defendants made valuable improvements on the lands to-wit: they constructed a large barn and silo and fenced and cross-fenced the entire tract.

The...