Lindvig v. Lindvig, 11007

• Decision Date: 10 April 1986
• Docket Number: No. 11007,11007
• Citation: 385 N.W.2d 466
• Parties: Lawrence LINDVIG and Mary Zaye Lindvig, Plaintiffs, Appellees and Cross-Appellants, v. John LINDVIG and Mabel Lindvig, Defendants, Appellants and Cross-Appellees. Civ.
• Court: North Dakota Supreme Court

Page 466

385 N.W.2d 466

Lawrence LINDVIG and Mary Zaye Lindvig, Plaintiffs, Appellees and Cross-Appellants, v. John LINDVIG and Mabel Lindvig, Defendants, Appellants and Cross-Appellees.

Civ. No. 11007.

Supreme Court of North Dakota.

April 10, 1986.

Rustad & Schmitz, Williston, for plaintiffs, appellees and cross-appellants; argued by Cathy Howe Schmitz.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendants, appellants and cross-appellees; argued by Claudette M. Abel; appearance by Ward M. Kirby.

MESCHKE, Justice.

John and Mabel Lindvig appeal from a judgment quieting title to 16.89 acres of land in Lawrence and Mary Zaye Lindvig. Lawrence and Mary Zaye have filed a cross-appeal from that portion of the judgment which quiets title to the mineral rights underlying 2.27 acres in John and Mabel. We affirm in part and remand for modification of the judgment to include an easement for a sewer line and drainage.

John and Lawrence are brothers. Prior to 1947 they farmed with their father, Henry Lindvig. In 1947 Lawrence married Mary Zaye, and they moved into an existing house located on the home quarter of Henry's farm. John and Mabel, who were married later in 1947, planned to build a home on land owned by John, but at the urging of John's father they built their home on a portion of the Lindvig home quarter. John contends that his father promised to give him a portion of the home quarter upon which the house was located, and in this litigation he asserts ownership of a 19.16 acre tract.

Henry, Lawrence, and John continued a farming and ranching operation after 1947, and various improvements were placed on the 19.16 acre tract. In 1958, Henry and Sadie signed a warranty deed conveying land, including the 19.16 acre tract, to Henry and Lawrence. In 1964, Henry, Sadie, Lawrence, and Mary Zaye signed a quit claim deed conveying the property to Lawrence. After Henry's death in 1973, the relationship between John and Lawrence began to deteriorate, with ownership of the 19.16 acres becoming the focal point of their dispute. John continued to make improvements after learning of Lawrence's title to the land, even after Lawrence requested that no further permanent structures be placed upon the land.

Lawrence and Mary Zaye ("Lawrence") commenced this action to quiet title to property including the 19.16 acres. John and Mabel ("John") answered and counterclaimed, requesting that the court quiet title to the 19.16 acres in them, or, in the alternative, for a judgment for the value of the improvements to the property. The trial court quieted title to a 2.27 acre tract, including John and Mabel's home, in John and Mabel, and quieted title to the remaining 16.89 acres within the 19.16 acre tract in Lawrence and Mary Zaye. The court also granted use of the quonset to John for a period of five years and allowed removal by him of certain improvements. All remaining improvements were awarded to Lawrence. The court also granted to each side an easement to use the road which provides access to the property.

The following issues are presented on appeal:

I. Were the 1958 and 1964 deeds champertous and therefore void?

II. Are the trial court's findings that John did not acquire title to the entire 19.16 acres by either an executed parole gift or adverse possession, and that John's use of the property was pursuant to a tenancy at will, clearly erroneous?

III. Did the trial court's failure to award a money judgment for the value of improvements made to the property by John constitute reversible error?

IV. Did the trial court err in refusing to hold Lawrence in contempt for violating a pre-trial injunction?

V. Did the trial court err in quieting title to the mineral rights underlying the 2.27 acres in John?

I. CHAMPERTY

John contends that at the time the deeds conveying the property were executed in 1958 and 1964, the grantors were not in possession of the 19.16 acres, thereby rendering the deeds champertous and void. At the time of the conveyances, Section 12-17-14 of the North Dakota Century Code ¹ prohibited conveyance of property by one who had not been in possession of the property within one year:

"12-17-14. Buying pretended titles--Misdemeanor.-- Every person who buys or sells or in any manner procures, or makes or takes any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof or the person making such promise or covenant has been in possession, or he and those by whom he claims have been in possession of the same, or of the reversion and remainder thereof, or have taken the rents and profits thereof, for the space of one year before such grant, conveyance, sale, promise, or covenant is made, is guilty of a misdemeanor."

This Court has held that deeds executed in violation of the statute are void as to persons in adverse possession of the land purportedly conveyed. Gajewski v. Bratcher, 221 N.W.2d 614, 633 (N.D.1974). ²

We conclude that the deeds in this case were not executed in violation of the statute. The record clearly demonstrates that at the time in question Henry and Lawrence, as well as John, were using the 19.16 acres as part of the family farming operation. John has failed to establish that the property was not in the possession of the grantors when the deeds were executed. Thus, we conclude that the deeds were not executed in violation of the statute.

II. FINDINGS

John contends that the trial court's findings that John and Mabel did not acquire title to the entire 19.16 acres by either an executed parole gift or adverse possession, and that John's use of the property was pursuant to a tenancy at will, are clearly erroneous. We will consider these issues separately.

A. Executed Parole Gift

John asserts that he acquired title to the entire 19.16 acres by an executed parole gift from Henry in 1949. The trial court found an executed parole gift as to the 2.27 acres immediately surrounding John's home, but found no intent by Henry to give John the entire 19.16 acres.

A party claiming land pursuant to an alleged executed parole gift has the burden of proving each element requisite to constitute a valid gift. Hagerott v. Davis, 73 N.D. 532, 551, 17 N.W.2d 15, 25 (1944). When such a claim is asserted after the death of the alleged donor, proof of each element must be by clear and convincing evidence. Schrank v. Meade, 145 N.W.2d 514, 518 (N.D.1966).

John contends that this case is factually similar to two cases in which this Court held that, under the facts presented, the statute of frauds did not defeat parole gifts of land. Heuer v. Kruse, 67 N.D. 552, 274 N.W. 863 (1937); Heuer v. Heuer, 64 N.D. 497, 253 N.W. 856 (1934). We agree with the holding of those cases: if the donee has taken possession of the land and made improvements thereon, so that avoidance of the gift would work a substantial injustice, the statute of frauds will not defeat a parole gift of land. See Heuer v. Heuer, supra, 64 N.D. at 503, 253 N.W at 858-859. The donee, however, still has the burden of establishing the requisite elements of a valid gift.

In the cases cited by John, this Court found that there was an executed parole gift of the land. ³ Those cases, however, are clearly distinguishable from the instant case because there was a clearly defined area of land--a quarter section--involved. In this case, there is no evidence that Henry intended to give John the entire 19.16 acres. Rather, the rest of the 19.16 acres appears to be the area which John has gradually encroached upon as he has expanded his farming operations over the past 35 years.

In addition, there is substantial evidence which demonstrates that Henry continued to use most of the 19.16 acres in the family farming operation, made improvements thereon, and exercised dominion and control over the property after the alleged gift occurred in 1949. This evidence conflicts with the requirement that the donor relinquish all control over the property as a prerequisite to a finding of a valid gift:

" ' "There must be an intention on the part of the donor to relinquish the right of dominion on one hand and to create it on the other, and the delivery must be not only of possession but also of the dominion and control of the property. To have the effect of a valid gift, therefore, the transfer of possession and title must be absolute and go into immediate effect, so far as the donor can make it so by intent and delivery, and must be so complete that if he again resumes control over it without consent of the donee he becomes liable as a trespasser." ' "

Zeman v. Mikolasek, 75 N.D. 41, 53, 25 N.W.2d 272, 279 (1946) (quoting Ramsdell v. Warner, 48 N.D. 96, 102, 183 N.W. 281, 283 (1921) ). See also Schrank v. Meade, supra, 145 N.W.2d at 518; Hagerott v. Davis, supra, 73 N.D. at 550-551, 17 N.W.2d at 24-25.

In order to sustain his burden of proof, John had to establish that it was Henry's intention in 1949 "to then and there transfer title" to the entire 19.16 acres to John. See Schrank v. Meade, supra, 145 N.W.2d at 518. John failed to meet that burden. The trial court found that Henry did not intend to make a gift of the entire 19.16 acres to John. Because the record indicates that John failed to establish that Henry intended to gift the entire 19.16 acre tract of land, and that Henry exercised dominion and control over most of that tract after the alleged 1949 gift, we conclude that the trial court's finding is not clearly erroneous. ⁴

B. Adverse Possession

The trial court found that John's use of the 19.16 acre tract was not "adverse" so as to give rise to title by prescriptive use. John asserts that this finding is clearly erroneous.

The burden of proving adverse possession rests with the party alleging it, and it must be established by clear and convincing evidence. E.g., Benson v. Taralseth, 382 N.W.2d 649, 653 (N.D.1986). The determination of whether there has been an adverse use is a question of...