Heggen v. Marentette

• Decision Date: 30 June 1966
• Docket Number: No. 3238,3238
• Citation: 144 N.W.2d 218
• Parties: Howard HEGGEN, Plaintiff and Respondent, v. Mabel MARENTETTE, formerly Mabel Leer, Glen Humphrey, Louise Humphrey McManus, also known as Lois McManus, and Marion Humphrey Howard, Defendants andAppellants.
• Court: North Dakota Supreme Court

Page 218

144 N.W.2d 218

Howard HEGGEN, Plaintiff and Respondent, v. Mabel MARENTETTE, formerly Mabel Leer, Glen Humphrey, Louise Humphrey McManus, also known as Lois McManus, and Marion Humphrey Howard, Defendants andAppellants.

No. 3238.

Supreme Court of North Dakota.

June 30, 1966.

Rehearing Denied Aug. 16, 1966.

Syllabus by the Court

1. In a case where a party is entitled to trial de novo upon proper demand, where a demand for trial de novo is contained in the settled for trial de novo is contained in fied by a district judge, the Supreme Court will retry the entire case on appeal.

2. For reasons stated in the opinion, it is held that the plaintiff entered onto the premises in dispute as a tenant in common.

3. A tenant in common who enters into possession is exercising his rights as tenant in common, and his possession is presumed to be consistent with his title as cotenant. Mere possession and payment of taxes are presumed to be for the benefit of all tenants in common.

4. A cotenant may oust other cotenants, but ouster can be accomplished only by acts so hostile that his intention to dispossess his contenants is clear and unmistakable.

5. In order to establish an ouster by one cotenant of his cotenants, there must be evidence of such ouster followed by possession for the entire statutory period.

6. The evidence in this case as it relates to the Southeast Quarter of Section 10 and the Northeast Quarter of Section 15, Township 150 North, Range 101 West of the Fifth Principal Meridian, has been examined, and it is held that the plaintiff has failed to show that he had, for himself and not as a cotenant, adversely possessed the premises in dispute for the statutory period necessary to establish title by adverse possession. The same is true as to the Northwest Quarter of Section 15 and the Southwest Quarter of Section 11, Township 150 North, Range 101 West, and as to certain lots in the original townsite of Rawson.

7. A decree establishing heirship is final and conclusive upon all heirs. § 30--22--11, N.D.C.C.

8. A decree rendered by the county court having jurisdiction of the parties and the subject matter imports absolute verity as long as it stands.

9. As decrees establishing heirship were entered in 1954 and an action to quiet title to all of the property described in this action was commenced in 1961, alleging title by adverse possession, title by adverse possession could not be established for the reason that the statutory period necessary to establish title by adverse possession had not run.

10. As the plaintiff held possession as a cotenant and not adversely, his possession is deemed possession by the cotenants and their heirs. The conveyance here being by an heir of a cotenant, it cannot be said that the conveyance was made by someone not in possession. The conveyance was therefore not champertous.

William R. Tschetter and Phyllis A. Ratcliffe, Watford City, for appellants.

Bjella, Jestrab, Neff & Pippin, Williston, for respondent.

ERICKSTAD, Judge (on reassignment).

The plaintiff, Howard Heggen, brought an action to quiet title to the Southeast Quarter of Section 10, the Southwest Quarter of Section 11, and the North Half of Section 15, all in Township 150 North, Range 101 West of the Fifth Principal Meridian, situated in McKenzie County, North Dakota. In his complaint he alleged that he had a fee simple interest in the property and that he was entitled to the immediate possession thereof.

The defendant McKenzie County failed to answer the complaint.

The other named defendants, Mabel Marentette, formerly Mabel Leer, Glen Humphrey, Louise Humphrey McManus, also known as Lois McManus, and Marion Humphrey Howard, in their answer generally denied the allegations of the complaint and alleged that they together claimed a 2/7 undivided interest in the property and that their interest is as tenants in common with Mr. Heggen.

In their counterclaim they asserted that they and Mr. Heggen are the owners in fee simple and are in actual possession of the real estate described in the complaint and of Lots 1 and 2 of Block 6 and Lots 7 and 8 of Block 2 of the original townsite of Rawson in McKenzie County. They alleged that Mr. Heggen had been in possession of the land during the years 1954 through 1961 as a tenant in common, that he was still in possession of the premises, and that he had retained all of the income from the property and had paid none of it to the defendants. They alleged that the property was so situated that a division of it could not be made without gross injury and prejudice to the owners.

In their prayer for relief they asked that the plaintiff's claim be dismissed and that they be granted judgment on their counterclaim for a partition of the real estate; or, if a partition could not be had without material injury to the owners, that a sale of the premises be ordered and that the proceeds thereof be divided among the parties according to their respective rights; and that an accounting be ordered and proper payment be made by the plaintiff. Lastly, they asked that the costs of partition, including counsel fees and all other expenses incurred by the defendants for the benefit of all, be fixed by the court and ordered paid by the parties entitled to share in the lands, or that the lands be charged with these costs and fees proportionately.

In the plaintiff's amended reply to the answer and counterclaim of the defendants, he denied that the defendants had any right, title, or interest in the property and, in a number of defenses, he asserted his legal reasons in support of his contention that he was entitled to have the title of the property quieted in him.

The trial court found for the plaintiff and ordered judgment accordingly. It is from the judgment entered pursuant to this order that the named individual defendants have appealed, demanding trial do novo.

The respondent, Howard Heggen, contends that the defendants are not entitled to a trial de novo. He contends that the demand for trial do novo was contained only in the notice of the appeal. This is not the case. An examination of the order settling the statement of the case discloses that the order incorporates a demand for trial de novo. Accordingly, we are required to try the case anew. See Syllabus 1, Renner v. Murray, 136 N.W.2d 794 (N.D.1965).

The material facts do not appear to be in conflict.

For purposes of discussion of the issues, we need trace the chain of title to the Southwest Quarter of Section 11 and the North Half of Section 15 back only to Neils Heggen and the chain of title to the Southesat Quarter of Section 10 back only to John Heggen.

Neils Heggen died intestate in 1930, leaving his wife Maren and his son John surviving him. John died intestate in 1936 and Maren died intestate in 1940. John's wife Otilda preceded him in death in 1920. Title to the land descended to the children of John Heggen, namely, the plaintiff herein, Howard Heggen, his brothers Neil Heggen, Norman Heggen, and James Heggen, and his sisters Mabel Heggen, Inga Heggen, and Stella Heggen, so that they each became owners of an undivided 1/7 interest as tenants in common of this property.

It should be noted that the parties stipulated that Inga Heggen died in 1932. If this is true, on her father's and grandmother's deaths her two children acquired the undivided 1/7 interest which otherwise would have descended to her.

Neil, Norman, James, and Stella have each conveyed their interest in the property to Howard. Thus, through inheritance of an undivided 1/7 interest and by conveyances of an undivided 4/7 interest, Howard has acquired an undivided 5/7 interest in the property.

Heirship proceedings initiated by Howard purport to distribute the 1/7 interest that would have descended to Inga, had she survived her father and grandmother, to her surviving husband Glen Humphrey and her two daughters Louise Humphrey McManus and Marion Humphrey Howard. So that the issues raised by respective counsel and parties may be more fully discussed, we shall assume that the stipulation as to Inga's date of death is in error and that the decree was correct in this respect.

Mabel Heggen, who owned an undivided 1/7 interest, is now married to Steve Marentette, who is also known as Steve Leer. Unless these parties have lost their interests in this property, Mabel Heggen Marentette would now be entitled to an undivided 1/7 interest, and Glen Humphrey, Louise Humphrey McManus, and Marion Humphrey Howard woudl each be entitled to an undivided 1/21 interest.

Howard Heggen contends that he is entitled to have full title to all four quarter sections of land quieted in him. He asserts as reasons therefor the following: He took possession of the Southeast Quarter of Section 10 in the spring of 1941 and has continued in possession ever since. He has cropped it, paid taxes on it up to the time of this lawsuit, and has improved the soil by following soil conservation practices. He has retained all of the income, and no demands for a division of the income have been made upon him during this period of time. He has leased the land for oil and gas purposes and retained the rentals therefrom; he has repaired the fences and annually picked the rocks on the land; he has built and erected on the premises a quonset building costing $5,000.

He has possessed the Northeast Quarter of Section 15 in the same manner except that he has not constructed a building on it.

Howard's testimony as to how he acquired these two quarter sections of land is as follows:

'Q. Now as to these other two quarters of land, that would be the Southeast of 10 and the Northeast of 15, how did you acquire those?

A. I just moved onto them.

Q. Well, did you ever buy them from anybody?

A. No.

Q. You didn't ever purchase that from anybody?

A. Nobody chased me off neither.

Q. You never received any deed, did you?

A. Only I have got them there, quitclaim deeds (indicating).

Q. Except for those...