Northern Pac. Ry. Co. v. Advance Realty Co.
| Decision Date | 13 July 1956 |
| Docket Number | No. 7535,7535 |
| Citation | 78 N.W.2d 705 |
| Court | North Dakota Supreme Court |
| Parties | NORTHERN PACIFIC RAILWAY COMPANY, a corporation, Plaintiff and Respondent, v. ADVANCE REALTY COMPANY, a corporation et al., Joseph E. Gross, Susanna Gross, Shell Oil Company, a corporation, V. V. Bull, J. W. Harris, V. L. Jopling, Harold A. Wood, Trustee, Grady Jean, T. Craig Wright and Nattie E. Wright, Grady Jean, Trustee, James F. Weekes, Jr., J. P. Evans, Albert Oswald, G. W. Wallace, Dewey Daniell, Dave Black, Jacob Hieb, C. H. Hopkins, M. M. Hopkins, Harry H. Hunter, Gottlieb F. Werner, W. H. Skiff, Elizabeth Fuchs, Henry Fuchs, Frederick Fuchs, Martha Fuchs, also known as Martha Johnson, William Fuchs, Betty Lou Fuchs, Estell K. Healy, also known as Estelle K. Healy, The Security Land Company, a corporation, H. F. Hunter, Grant County, a municipal corporation, Archie Stewart, Goldie Stewart, Sacony-Vacuum Oil Company, Incorporated, Clarence L. Werner, William Besser, Sr., Gottlieb Werner, Kate A. Hopkins, United States of America, acting by and through the Administrator of the Farmers Home Administration, Uline Loan Company, John C. Dalk, Florence M. Dalk, O. F. Warren, Thomas W. Leach, White Eagle Oil Company, a corporation, White Eagle, Gerald Hostetler, Otillia Hostetler, Delbert A. Wells, Arlene Wells, Lario Oil & Gas Company, a corporation, T. W. MacKay, W. A. McDowell, Violet Fuchs, L. G. Johnson, United States Smelting, Refining and Mining Company, Lee Hoff, Jr., Sacony-Vacuum Oil Company, Incorporated, Esther Zacher, Harry R. Zacher, Reinhold Zacher, Emilie Zacher, J. J. Ryan, Gottlieb Zeller, Jesse Bruhn, Elizabeth Bruhn, The Federal Farm Mortgage Corporation, a corporation, The Federal Land Bank of St. Paul, a corporation, Placid Oil Company, a corporation, Erle C. Beede, State Treasurer as Trustee for the State of North Dakota of Bismarck, North Dakota, State Treasurer, Bismarck, North Dakota, Los Nietos Company, a corporation, L. P. Arnold, Attorney-in-Fact for Los Nietos Company, a corporation, and all other persons unknown claiming any estate or |
Syllabus by the Court.
1. The sufficiency of the foundation to permit the admission of evidence within the provision of Section 31-0801 NDRC 1943, is primarily for the trial court and his ruling thereon will not be disturbed in the absence of manifest abuse of discretion.
2. Section 47-1908 and Section 47-1945 NDRC 1943, must be read together in determining what constitutes constructive notice. It is not only the deposit of the original instrument but the correct record thereof that constitutes constructive notice.
3. When a deed contains a provision excepting and reserving the minerals from the grant of the title to the surface of land two estates are created, one for the minerals and one for the surface of the land. Each may be conveyed separately thereafter. Such provision constitutes a conveyance as defined by Section 47-1942.
4. To preserve his rights in the minerals it is the duty of the holder of the title to said minerals to record the deed for his own protection. He is the beneficiary of the provision placing the minerals in a separate estate.
5. Unless such a conveyance of the minerals is recorded it is void against subsequent innocent purchasers under Section 47-1941 NDRC 1943.
6. An innocent purchaser is one who makes the purchase of property in good faith, for value and without notice, actual or constructive, of any outside claim against the property bought.
7. 'Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact and who omits to make such inquiry with reasonable diligence is deemed to have constructive notice of the fact itself.' Section 1-0125 NDRC 1943.
8. When a mortgagee has notice that the real property mortgaged is subject to a reservation of all minerals therein, such mortgage covers only the surface of that land and on a foreclosure of such mortgage the sheriff's deed passes only title to the surface.
9. A tax deed conveys only the interest in real property which was assessed for taxation.
10. In an action to quiet title a corporation or person appearing of record as having a possible claim to, or interest in, the real property involved, is a proper party to the action and service upon such corporation or person as 'unknown persons' is insufficient to give the court jurisdiction. Section 32-1706 NDRC 1943.
Strutz, Jansonius & Fleck, Bismark, for appellants, V. L. Jopling, White Eagle, White Eagle Oil Co., John C. Dalk, Lee Hoff, Jr., Thomas W. Leach, Erle C. Beede, James F. Weekes, Jr., Joseph E. Gross, O. F. Warren, Placid Oil Co.
Emil A. Giese, Carson, for appellants, Joseph E. Gross, Susanna Gross, Placid Oil Co. and James F. Weekes, Jr.
Leslie H. Burgum, Atty. Gen., for appellant, State.
Robert A. Birdzell, Asst. Atty. Gen., for State Treasurer as Trustee for the State of North Dakota.
Torkelson & Morland, Bowman, for appellant Federal Farm Mortgage Corp., Robert J. Barry, Harold W. Lee and Stanley F. Casey, St. Paul, Minn., of counsel.
Conmy & Conmy, Fargo, for respondent.
This action is brought for the purpose of quieting title in plaintiff to all minerals in or under the following described property located in the County of Grant, State of North Dakota.
'All of fractional Section Nineteen (19), in Township One Hundred Thirty-One (131) North, Range Eighty-four (84) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 628.88 acres, more or less.
'All of Section One (1) in Township One Hundred Thirty (130) North, Range Eighty-six (86) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres, more or less.
'All of Section Three (3) in Township One Hundred Thirty (130) North, Range Eighty-six (86) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres, more or less.
'All of Section Nine (9) in Township One Hundred Thirty (130) North, of Range Eighty-six (86), West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres.
'All of Section Seventeen (17) in Township One Hundred Thirty (130) North, Range Eighty-six (86), West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres.
'All of Section Nineteen (19) in Township One Hundred Thirty (130) North, Range Eighty-six (86) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 632.32 acres.
'All of Section Thirty-three (33) in Township One Hundred Thirty-two (132) North, Range Eighty-six West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres, more or less.
'All of Section Thirteen (13) in Township One Hundred Thirty (130) North, Range Eighty-seven (87) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres, more or less.
'All of Section Fifteen (15), in Township One Hundred Thirty (130), North, Range Eighty-seven (87), West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres.
'All of Section Twenty-three (23), in Township One Hundred Thirty (130) North, or Range Eighty-seven (87), West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres, more or less.
'All of Section Twenty-five (25) in Township One Hundred Thirty (130) North, Range Eighty-seven (87) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres, more or less.
'All of Fractional Section Thirty-one (31) in Township One Hundred Thirty-two (132), North Range Eighty-seven (87) West of the Fifth Principal Meridian, in Grant County, North Dakota, containing 625.76 acres, more or less.
'All of Section Seven (7), in Township One Hundred Thirty-two (132), North, Range Eighty-eight (88) West of the Fifth Principal Meridian, Grant
County, North Dakota, containing 624.68 acres, more or less.
'Lots One (1), Two (2), Three (3), Four (4) and the East Half of the Northwest Quarter (E 1/2 NW 1/4), The Northeast Quarter of the Southwest Quarter (NE 1/4 SW 1/4), the Southeast Quarter of the Southwest Quarter (SE 1/4 SW 1/4), and the East Half (E 1/2) of Section Thirty-one (31), in Township One Hundred Thirty-two (132), North, Range Eighty-eight (88) West of the Fifth Principal Meridian, Grant County, North Dakota, containing 624.08 acres, more or less.
'All of Section Thirty-five (35), in Township One Hundred Thirty-one (131), North of Range Eighty-nine (89), West of the Fifth Principal Meridian, Grant County, North Dakota, containing 640 acres.'
The complaint is in statutory form asking that the defendants set forth their claims; that they be declared void and that title be quieted in the plaintiff.
Fourteen of the defendants made separate answers. They all make a general denied of plaintiff's claim of ownership and set up various defenses. Some make counterclaim that they own various interests in different portions of the lands and minerals involved; some claim to be innocent purchasers thereof, in good faith and for value.
Plaintiff replies denying all of these claims. The balance of the defendants defaulted. The court found for the plaintiff. Twelve defendants appeal and ask for trial de novo.
The record shows that all of these lands were originally granted by the United States to the Northern Pacific Railway Co. In 1903, for the purpose of handling sales of the land, the Railway Company organized the Northwestern Improvement Company of New Jersey to whom these lands were deeded for that purpose. On Feb. 18, 1914, the Northwestern Improvement Company deeded the lands involved here to the Advance Realty Company. That deed was recorded on March 16, 1914, in Book 33, page 380, in Morton County Register of Deed's Office and thereafter, when a part of Morton County was organized...
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