Gruebele v. Gruebele, 10386

• Citation: 338 N.W.2d 805
• Decision Date: 30 September 1983
• Docket Number: No. 10386,10386
• Parties: Jacob W. GRUEBELE, a/k/a Jake Gruebele, Plaintiff and Appellee, v. Erna GRUEBELE, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 805

338 N.W.2d 805

Jacob W. GRUEBELE, a/k/a Jake Gruebele, Plaintiff and Appellee, v. Erna GRUEBELE, Defendant and Appellant.

Civ. No. 10386.

Supreme Court of North Dakota.

Sept. 30, 1983.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for plaintiff and appellee; argued by Ward M. Kirby, Dickinson.

Rosenberg, Evans, Moench, & Baird, Bismarck, for defendant and appellant; argued by LaRoy Baird, Bismarck.

ERICKSTAD, Chief Justice.

The appellant, Erna Gruebele, appeals from a judgment of the District Court of Hettinger County, dated January 21, 1983, quieting title to the following 640 acres of farmland in Hettinger County:

Township 136 North, Range 91 West

East Half of the Southwest Quarter (E 1/2SW 1/4) and South Half of the Southeast Quarter (S 1/4) of Section 8;

Northwest Quarter (NW 1/4) of Section 16;

North Half (N 1/2) of Section 17.

The appellee, Jacob W. Gruebele, initiated this quiet title action to ascertain the validity and priority of Erna's adverse claim to the described real property. Erna claims to be the owner in fee simple of an undivided one-fourth interest in all oil, gas, asphalt, coal, uranium, sand and gravel and all other minerals in and under and that may be produced from the property. The District Court of Hettinger County, The Honorable Allan L. Schmalenberger, decreed that Jacob is the owner in fee simple of the property, free of all claims of Erna, and that Erna has no right, title or interest in and to the land and premises. We reverse the judgment of the District Court of Hettinger County.

On November 8, 1979, a judgment was entered in the District Court of Burleigh County pursuant to findings of fact, conclusions of law, and order for judgment of the Honorable Benny A. Graff entitling Erna to an absolute decree of divorce from Jacob upon grounds of adultery. The court's judgment contained the following language: ¹

"It is FURTHER ADJUDGED AND DETERMINED that the real estate described as ..., all in Township One Hundred Thirty-six North (136N), Range Ninety-one West (91W), Hettinger County, North Dakota, and all of the personal property consisting of farm machinery, grain, and all other personal property used in connection with the farming operation inclusive of motor vehicles shall be sold by a receiver and the proceeds therefrom less expenses of the receivership and other legitimate expenses of sale and any encumbrances thereon being deducted, and the balance thereof divided equally between the parties hereto, less the sum of $800.00 to be deducted from the share of the plaintiff." ²

Service of the notice of entry of judgment was made on November 26, 1979. A partial transcript of the order dated September 20, 1979, clearly reveals the district court's "intention ... to divide this property equally among the parties subject to the payment of all debts presently outstanding."

On November 26, 1979, the district court entered an order appointing a receiver, Jim Raaum, for purposes which included the liquidation by public auction of "all of the real estate of the parties." Raaum filed an acknowledged surety bond in the amount of $50,000, dated November 21, 1979, and executed an acceptance of receivership on November 26, 1979. Thereafter, Raaum caused the placement of several advertisements in newspapers in the general circulation area of the land. The advertisements included, apparently without written direction from the court, the language: "Mineral rights will be retained by the present owners."

Jacob was the successful bidder at the May 5, 1980, sale of the real property. ³ An order confirming the propriety of the sale by Raaum to Jacob was entered in the District Court of Burleigh County on March 11, 1981. The order directed Raaum to execute and deliver a receiver's deed to Jacob. The receiver's deed, executed by Raaum and dated March 23, 1981, conveyed to Jacob "all of the estate, title and interest" in the described real property. The deed was recorded on September 18, 1981, in the office of the Register of Deeds in Hettinger County. Neither the district court's order confirming the sale nor the receiver's deed executed by Raaum contain any language which may be construed as a reservation of a mineral interest in the property. ⁴

On June 2, 1981, the District Court of Burleigh County issued an ex parte order purporting to convey to Erna a mineral interest in the described real property previously conveyed to Jacob by court-ordered receiver's deed. The district court's order provided as follows:

"Max D. Rosenberg, attorney for the above-named plaintiff, having brought to the court's attention that the plaintiff Erna Gruebele is entitled to an undivided one-half interest in and to certain mineral interests in and to the real estate hereinafter described, and having found that the defendant has failed and refused to execute the proper conveyance to convey to the said plaintiff her share of said mineral interests, and it appearing to the court from all of the files and records herein that the said plaintiff is entitled to such conveyance, and having further found that the defendant has refused to execute a mineral deed in favor of said plaintiff, Erna Gruebele, and having determined that it was unnecessary to set a hearing in this matter and having determined that he could act in said matter on an ex parte order, it is hereby

"ORDERED that the plaintiff be and she is hereby entitled to an undivided one-half interest as shown by the records of the Register of Deeds of Hettinger County, North Dakota, in and to all of the oil, gas, asphalt, coal, uranium, sand and gravel, and all other minerals in and under and that may be produced from the ... described [real property].

"It is FURTHER ORDERED that upon the filing of record of this order with the above-named Register of Deeds, it shall constitute and have the same force and effect as a proper conveyance of said mineral interests from the defendant, Jacob W. Gruebele, to the plaintiff, Erna Gruebele."

Thereafter, because of an error in the legal description of the property in the order of June 2, 1981, an amended order, also ex parte, dated January 11, 1982, and recorded January 12, 1982, in the office of the Register of Deeds of Hettinger County, was entered in the District Court of Burleigh County on motion of Erna's attorney.

On January 27, 1982, another ex parte order was executed, amending further the order of June 2, 1981, which purported to convey to Erna an undivided one-half interest in the mineral estate held by Erna and Jacob in the described real property on November 9, 1979. This order was apparently deemed necessary to reflect the fact that Jacob and Erna together owned only a one-half mineral interest rather than the entire mineral interest in the described real property prior to their divorce on November 8, 1979. The order was recorded February 10, 1982, in the office of the Register of Deeds of Hettinger County.

Jacob contends that he first learned of the ex parte orders after receiving a less than adequate delay rental payment from Gulf Oil Exploration and Production Company for an oil and gas lease on the described real property. Upon inquiry, Jacob received a letter, dated March 30, 1982, from Gulf Oil, along with copies of the order of June 2, 1981, and the amended order of January 11, 1982. The amended order of January 27, 1982, was apparently not brought to his attention until he secured updated abstracts of title dated April 12, 1982.

Jacob then initiated a quiet title action by service of summons and complaint on April 26, 1982. The action was heard in the District Court of Hettinger County on December 15, 1982. In her trial brief, Erna alleged fee title ownership of an undivided one-fourth mineral interest in the described real property "based upon the record that has developed concerning the divorce between Erna and Jacob Gruebele." Erna contended that the ex parte orders of the District Court of Burleigh County were properly entered pursuant to Rule 60(a) of the North Dakota Rules of Civil Procedure and that the District Court of Hettinger County lacked jurisdiction to hear the case because it was "seeking to circumvent the valid orders of the divorce court."

Judgment was entered on January 21, 1983, pursuant to the findings of fact, conclusions of law, and order for judgment of the District Court of Hettinger County, which quieted title to the described real property in favor of Jacob. The court found that the District Court of Burleigh County lacked jurisdiction to enter its ex parte orders purporting to affect the mineral rights of the described property. Specifically, the court found that the ex parte orders of the District Court of Burleigh County were not properly entered pursuant to Rule 60(a), N.D.R.Civ.P., because the "effect of the orders issued subsequent to judgment [was] ... to change the original authority and direction of the receiver." The court determined that the divorce court's intent for equal distribution "was accomplished all pursuant to the clear, concise orders of the court, by the sale of all the property, and the division of the proceeds." As to the advertisements placed by Raaum, the court found that the language of the purported mineral reservation was unclear and was inserted in the advertisements by the receiver contrary to the clear intent and wording of the judgment and order appointing the receiver.

Erna now contends that the quiet title action was heard without jurisdiction in the District Court of Hettinger County and, therefore, represents an impermissible collateral attack upon the orders of the District Court of Burleigh County.

The record before us reflects that Jacob did not move, pursuant to Rule 60(b), N.D.R.Civ.P., to set aside the ex parte orders of the District Court of Burleigh County. Instead, he initiated a quiet title action in a different district court.

Erna raises the following issues:

1. Was the collateral action in the...