Gjerstadengen v. Hartzell

• Citation: 9 N.D. 268,83 N.W. 230
• Parties: GJERSTADENGEN et al. v. HARTZELL.
• Decision Date: 12 May 1900
• Court: United States State Supreme Court of North Dakota

9 N.D. 268
83 N.W. 230

GJERSTADENGEN et al.
v.
HARTZELL.¹

Supreme Court of North Dakota.

May 12, 1900.

Syllabus by the Court.

1. An administrator, who, as such, and under the direction of the probate court, sells land which, under a mistake of law, in which the purchaser shares, is believed to belong to the estate, but which in fact does not, and executes an administrator's deed therefor, without personal covenants, is not estopped by such deed from asserting title in himself; neither does the deed estop his heirs from asserting title derived from him. Gjerstadengen v. Van Duzen, 76 N. W. 233, 7 N. D. 612, followed.

2. Held, further, that the fact that such administrator individually received the entire proceeds derived from a sale of the land, the same being allowed and paid upon a debt due him from the estate, does not, under the circumstances of this case and set out in the opinion, estop him or his heirs from asserting title which he then had or thereafter acquired, which title was then unknown to him.

3. Held, further, that it is essential to an estoppel which will defeat his title to the land that it shall appear that the party asserting the estoppel will suffer loss, unless the holder of the title is prevented from asserting it.

4. This is an action in equity to partition farm lands owned by several co-tenants. One of the co-tenants demands that he be allowed compensation for certain breaking and backsetting done by a remote grantor in his chain of title. Held that, inasmuch as it does not appear that such improvements were necessary, or that they were assented to by his co-tenants, and it does appear that they were for the personal benefit of the person making them, and that the rents of the premises for the time he possessed them more than offset the value of such improvements, such claim should not be allowed.

5. Held, that the demurrer interposed to the portions of the answer which set up facts by way of an estoppel to defeat plaintiff's title and the counterclaim for improvements was properly sustained.

Appeal from district court, Ransom county; W. S. Lauder, Judge.

Action by Martin Peterson Gjerstadengen and others against William J. Hartzell. Judgment for plaintiffs. Defendant appeals. Affirmed.

[83 N.W. 230]

C. D. Austin, J. E. Bishop, and Newman, Spalding & Stambaugh, for appellant. T. A. Curtis and Morrill & Engerud, for respondents.

YOUNG, J.

This case was before us at a former term upon an appeal from an order of the district court striking out portions of the answer. The order striking out was sustained in part only. It was held as to certain portions that plaintiff's attack should have been by demurrer. See Gjerstadengen v. Hartzell, 8 N. D. 424, 79 N. W. 872. A demurrer was interposed, when the case went back to the district court. The present appeal is from an order sustaining the demurrer to those portions. The action is in equity to partition a quarter section of land situated in Ransom county. Plaintiffs allege that they are the owners of 26/27 thereof; that on April 11, 1895, G. W. Van Dusen & Co., a Minnesota corporation, became the owner of the other 1/27, and thereafter claimed title to all of said land; that on August 23, 1897, in an action in the district court of Ransom county, wherein they were plaintiffs and G. W. Van Dusen & Co. was defendant, a judgment and decree was rendered and entered adjudging them to be the owners of the share they now claim; that in March, 1898, thereafter, G. W. Van Dusen & Co. executed and delivered to the defendant herein a warranty deed purporting to convey to the defendant the fee-simple title to all of said premises, and that the defendant now claims to own the whole of said premises. Plaintiffs ask that the land be partitioned, and, if that is not found practicable, that it be sold, and the proceeds divided. The defendant, in his answer, denies that the plaintiffs own any interest in the land, but admits his purchase from G. W. Van Dusen & Co. by warranty deed, as alleged in

[83 N.W. 231]

the complaint, and alleges that he purchased the same in good faith, for a valid consideration, and without notice. Defendant also sets forth the origin, nature, and extent of his title, and it is to these portions of the answer the demurrer is directed. So far as important, the facts alleged are substantially these: Olia Mikkleson, who had a homestead entry upon the land in question under section 2289, Rev. St. U. S., died on July 22, 1885, and before making final proof. She left surviving three children, Martin Peterson Gjerstadengen, Peter Peterson Sandvig, and Ole Peterson. The two children first named are parties plaintiff in this action. The third one-Ole Peterson-died in 1893, leaving surviving a widow and six children. With the exception of the interest of one of these children,-Bradley...