Neset v. Rudman

• Decision Date: 03 February 1956
• Docket Number: No. 7563,7563
• Citation: 74 N.W.2d 826
• Parties: Ole N. NESET and Mabel R. Neset, Plaintiffs and Respondents, v. M. B. RUDMAN and George Neset, and all other persons unknown claiming an estate in, or lien or encumbrance upon the real property described in this complaint, Defendants, M. B. Rudman, Defendant and Appellant, George Neset, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 826

74 N.W.2d 826

Ole N. NESET and Mabel R. Neset, Plaintiffs and Respondents, v. M. B. RUDMAN and George Neset, and all other persons unknown claiming an estate in, or lien or encumbrance upon the real property described in this complaint, Defendants M. B. Rudman, Defendant and Appellant George Neset, Defendant and Respondent.

No. 7563.

Supreme Court of North Dakota.

Feb. 3, 1956.

Syllabus by the Court.

1. A wife as such has no title to or estate in the homestead owned by her husband but she has a right to reside thereon until she abandons it or joins with her husband in alienating it.

2. A person who has no estate, interest in, lien or encumbrance upon real property may not maintain an action to determine adverse claims to it.

3. An action to determine adverse claims is essentially equitable in nature.

4. A conveyance or encumbrance of a homestead not executed by both husband and wife is void.

5. A contract executed by the husband alone for the sale of the homestead of himself and his wife is void.

6. Section 31-1106, NDRC 1943 enacts into substantive law the equitable principle that one who by his representations or conduct leads another to do that which he would not otherwise have done may not by changing his position subject such person to loss or injury.

7. In an action to determine adverse claims affirmative relief may be granted to remove a cloud which results from a title that cannot be asserted or enforced because of circumstances creating an estoppel.

Burk & O'Connell, Williston, for plaintiffs and respondents and defendant and respondent George Neset.

Bjella, Jestrab & Neff, Williston, for defendant and appellant.

MORRIS, Judge.

The plaintiffs brought this action on October 27, 1954, to determine adverse claims to the Southwest Quarter of Section 19, Township 157, Range 94 in Mountrail County. The only named defendant was M. B. Rudman. Upon motion of Rudman, George Neset was added as a second party defendant.

The complaint is substantially in statutory form. Section 32-1704, NDRC 1943. The defendant Rudman answered denying generally the allegations of the complaint. By way of a further defense and counterclaim, he alleged that on the tenth of August 1949 he purchased and secured an oil and gas lease from George Neset, the owner of the land in question, and further alleged that the plaintiffs represented to Rudman that George Neset was the owner of the land; urged Rudman to purchase an oil and gas lease from him; and that the plaintiffs are now estopped from asserting title to the property as against the lease.

The plaintiffs by way of reply allege that they are the owners of the property; that they are husband and wife and entered into possession in 1908; and that they occupied the property as their home and homestead continuously from 1913 until May 8, 1954. They further allege that agreements to convey the land to George Neset, if any, were not reduced to writing or subscribed by the plaintiffs and are barred by Section 47-1001, NDRC 1943 and Section 47-1805, NDRC 1943.

The trial court found that the plaintiffs were the owners of the property in fee simple and that Rudman's oil and gas lease was null and void. Judgment was entered quieting title in the plaintiffs. From this judgment Rudman appeals and demands a trial de novo.

The record shows that the rights, if any, which the plaintiffs have and which they assert to this land are entirely separate and distinct from each other. Therefore the evidence and the law with respect to the plaintiffs' claims will be considered separately. The rights of Mabel R. Neset rest exclusively upon her relationship as spouse of the owner with whom she made a home upon the land until May 8, 1954.

A written stipulation of the parties was entered into through their respective counsel and admitted as an exhibit at the trial. It pertains to the testimony of the plaintiff, Mabel R. Neset, who was unable to be present. In this stipulation it was stated that if she were present she would testify that she moved into a dwelling house on the land and continuously resided there with her husband, Ole N. Neset, from 1913 until May 8, 1954, and that since that date she has not resided on the land. It is further stipulated:

'She is not a record owner of the property and any rights she may have had in the property she acquired under the homestead laws of the State of North Dakota.'

A wife as such has no title or estate in the homestead owned by her husband but she has a right to reside thereon until she abandons it or joins with her husband in alienating it. Kuhnert v. Conrad, 6 N.D. 215, 69 N.W. 185; Roberts v. Roberts, 10 N.D. 531, 88 N.W. 289; Helgebye v. Dammen, 13 N.D. 167, 100 N.W. 245. The trial court found that at the time the oil and gas lease was executed the plaintiffs were living on and occupying the land as a homestead but made no finding with respect to abandonment. When the stipulation and the allegations of the complaint are considered in connection with the testimony of Ole N. Neset it is clear that his wife had no homestead right or interest in the land when this action was commenced. He testified to the effect that his son purchased the land in question and two other quarter sections of land from him in 1947 or 1948 and that the son had lived with the father as long as the latter had lived there and that the son continued to live there after Mr. and Mrs. Neset moved into Tioga. The transcript further shows this:

'Q. Mrs. Neset left the SW 1/4 of 19 at the same time in May of last year and you both live together now in Tioga? A. Yes.

'Q. That's your home now isn't it Mr. Neset? A. Yes, now it is.'

It is clear that the plaintiffs abandoned the homestead when they left the farm to the possession of a son and moved to Tioga. Since Mrs. Neset never had anything but a homestead right in the property, when she abandoned that homestead for a new home in Tioga there remained in her no right, title, or interest in the land.

In State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767, 787, we said:

'Under the express terms of the statute [Section 32-1701, NDRC 1943] it is only a person who has 'an estate or an interest in, or lien or encumbrance upon real property' who may maintain an action to determine adverse claims thereto. It follows that a person who has no estate or interest in, or lien or encumbrance upon the real property may not maintain an action to determine adverse claims thereto.'

In this case Mabel R. Neset, having abandoned the homestead right which she once had prior to the commencement of the action, has no right, title, or interest in the land and no right to maintain an action to quiet title with respect thereto. Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227.

We will now consider the facts and the law as they apply to Ole N. Neset. During all of the times pertinent to this action he was the record title owner to the land involved therein. He and his wife lived on and occupied the land as their homestead until May 8, 1954, when they abandoned it and moved to Tioga. In 1947 or 1948 Ole sold the land to his son George Neset, who had lived with his parents since childhood, who was then about thirty years of age. At the same time he sold two adjacent quarter sections of land to George. Ole and his wife gave George a deed to these two tracts but apparently the transaction regarding the home quarter was entirely verbal. After May 8, 1954, George continued to live on the farm. The record is silent as to the consideration that was to be paid but George testified that he still owed his father money on the transaction. On August 10, 1949, George Neset executed the oil and gas lease that is under attack. This lease covered the three quarter sections of land that Ole had sold to George. George received all of the delay rentals provided for in the lease. Ole contends that the lease is void because George, the lessor, had no title to the land at the time the lease was made. He asserts that George had no title because the land was a homestead and Mabel R. Neset, the wife, did not join in the sale to him and that the contract under which George purchased the land being wholly oral was void as being violative of the statute of frauds, Section 47-1001, NDRC 1943.

This is an action to determine adverse claims and is therefore essentially equitable in nature. Northwestern Mutual Savings and Loan Association v. Hanson, 72 N.D. 629, 10 N.W.2d 599; Udgaard v. Schindler, 75 N.D. 625, 31 N.W.2d 776; Mueller v. Mercer County, N.D., 60 N.W.2d 678.

With respect to the statute of frauds it appears that there was no compliance in the first instance with Sections 9-0604 and 47-1001, NDRC 1943, and that the contract by which the land was sold to George Neset was void unless, at the time the lease in question was made, there had been sufficient performance to take the contract out of the operation of these statutes. See Brey v. Tvedt, 74 N.D. 192, 21 N.W.2d 49; Henry S. Grinde Corp. v. Klindworth, 77 N.D. 597, 44 N.W.2d 417; Fried v. Lonski, 48 N.D. 1023, 188 N.W. 582; Syrup v. Pitcher, N.D., 73 N.W.2d 140. There was part performance on the part of George Neset but the nature and extent of that performance is not shown by the record and it is impossible to determine therefrom whether the part performance was sufficient to take the transaction out of the operation of the statute. Were this point vital to a decision of the case, we would remand the record for the taking of further testimony. We do not do so because, as will appear by our further discussion, the statute of frauds is not a controlling issue.

Turning now to the question of the homestead and its effect upon the contract by which Ole N. Neset sold the land to his son, we find that a conveyance or encumbrance of a homestead not executed by both the husband and the wife is void. Dixon v. Kaufman, 79 N.D. 633, 58 N.W.2d 797 and cases cited therein. Also Hoffer v. Crawford, N.D., 65 N.W.2d 625, and ...