Olson v. Brodell
| Decision Date | 21 April 1964 |
| Docket Number | No. 8116,8116 |
| Citation | 128 N.W.2d 169 |
| Parties | Syverin OLSON, Plaintiff and Appellant, v. Melvin BRODELL, Jerry Brodell, and Marvin Waldo, Defendants and Respondents. Syverin OLSON, Plaintiff and Respondent, v. Jerry BRODELL, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Where a court has jurisdiction of the subject matter of an action, general appearance, without objection to jurisdiction, and the invoking of the power of the court in a matter pertaining to and directly affecting the proceedings to be had in the action, give jurisdiction of the person.
2. The findings of a trial court are entitled to appreciable weight.
3. A purchaser who has exercised his option to purchase real estate is not entitled to possession until he has fully performed the contract of purchase unless the contract provides for possession.
4. A provision in a contract of purchase of real estate requiring the payment of four per cent interest in a contract that could conceivably be in effect for eighteen years is not sufficient in itself to give rise to an implication that the purchaser was entitled to possession prior to full performance of the contract.
5. Where a purchaser exercises his option to purchase an undivided one-half interest in real estate by tendering the full purchase price of the one-half interest, the making of which payment would constitute full performance of the contract, he thereby becomes the equitable owner of said interest and is entitled to share in the possession of the real estate.
6. An option to purchase an undivided one-half interest in real estate was not lost by a lessee-vendee through a subsequent deed to the lessor-vendor joined in by the lessee-vendee and other heirs of the vendee's father, who had sold the land on contract to the lessor-vendor prior to the execution of the option, where reference was made to the option in a lease entered into between the lessor-vendor and the lessee-vendee subsequent to the deed.
7. A provision in an option agreement for the purchase of real estate providing for payments 'on or before November 1 of each year' permitted prepayment of the entire purchase price.
8. When an option to purchase real estate is exercised, it becomes a contract of purchase and is assignable unless there is a specific provision in the option prohibiting assignment.
9. A motion to amend a complaint after an answer has been interposed and the case has been placed on the trial calendar is addressed to the sound discretion of the trial court, and its denial of such motion will not be disturbed on appeal except for an abuse of discretion.
10. Whether in a given case a situation exists which justifies or requires the appointment of a receiver is a question addressed to the sound discretion of the trial court, and its order will not be disturbed on appeal unless it is clearly wrong.
Stokes, Vaaler, Gillig & Warcup, Grand Forks, for plaintiff and appellant.
Duffy & Haugland, Devils Lake, for defendants and respondents and for defendant and appellant Jerry Brodell.
This case involves two appeals. The first appeal is from a judgment ordered by the District Court of Eddy County, dismissing the plaintiff's action of forcible entry and detainer. In his appeal the plaintiff demands a trial de novo. In the second appeal the defendant Jerry Brodell appeals from an order of the district court appointing a receiver to manage the real estate involved, pending the determination of the first appeal.
The facts will be stated in chronological order as far as possible.
In November of 1956 the plaintiff, Syverin Olson, purchased a tract of land located in Eddy County, North Dakota, consisting of approximately 2,000 acres, at a price of $35,000. This property was purchased from the father of the defendant Melvin Brodell. At the time of the purchase the plaintiff leased 'one-half interest of operation and income of' the property to the defendant Melvin Brodell at a cash rental of $1,150 per year. This lease was dated November 1, 1956.
The same parties also entered into an instrument entitled 'Option to Purchase.' The pertinent parts of the option, omitting the description of the property, read as follows:
'(Option to Purchase)
'Terms of purchase through option shall be as follows:
On full payment of the purchase price by the plaintiff, the defendant Melvin Brodell and his brothers and sister joined in conveying the property to the plaintiff by warranty deed dated November 10, 1959. No reference to the lease or the option was contained in the deed. The defendant Melvin Brodell contends that this deed was executed subsequent to the death of his father, merely to carry out the terms of the contract for deed entered into between the plaintiff and the father of the defendant Melvin Brodell.
On April 12, 1960, the plaintiff, Syverin Olson, and the defendant Melvin Brodell entered into a new lease for the years 1960 and 1961, covering all the premises, except perhaps the 'soil bank land,' and calling for a cash rental of $2,300 per annum.
This lease contained the following language:
'(Melvin Brodell, party of the second part, has option to buy the within described real estate upon agreement with the party of the first part, Syverin Olson, during time of this lease.)'
Prior to the first of November in the years 1960, 1961, and 1962, the defendant Melvin Brodell made payments of $1,000 plus interest to the Farmers & Merchants State Bank of Tolna, North Dakota, to be submitted to the plaintiff according to the installment payment terms of the option dated January 29, 1957; but in all three instances the plaintiff refused to accept the payments.
On November 1, 1961, the plaintiff sent the defendant Melvin Brodell notice by certified mail to quit the premises. When the defendant did not quit the premises, the plaintiff had the sheriff of Eddy County, on August 6, 1962, serve upon the three defendants in the instant case an instrument entitled 'Landlord's Three Days Notice to Quit' which was dated August 3, 1962. The plaintiff followed this notice with a complaint dated November 10, 1962, bringing an action of forcible entry and detainer seeking to evict the defendants from the premises. The defendant Melvin Brodell alleged in his answer that he was the owner of one-half interest in the land and thus was entitled to possession. The other defendants alleged that they were entitled to possession of parts of the land as lessees of Melvin Brodell, who, they said, was the owner of one-half interest in the land. The county justice concluded that these defenses raised a question of title to real estate, which deprived his court of jurisdiction. For this reason, the county justice, on demand of the defendant contained in the answer, transmitted to the district court the pleadings and papers filed with him.
At the commencement of the trial in district court the plaintiff moved to amend his complaint to ask for $4,000 in damages for the withholding of the premises during the year 1962. The court delayed making a decision on this motion until the case was tried and then denied the motion on the ground that the defendant Melvin Brodell had validly exercised his option to purchase; that, in so doing, he became a cotenant; and that, under these circumstances, the plaintiff's only recourse was an action for an accounting.
The court, in a memorandum decision dated March 20, 1963, further found that the defendant was not entitled to possession of the land but that he should be permitted to make payment in full of the purchase price of a one-half interest in the land within thirty days thereof. The time for payment was later extended to May 1, 1963.
Prior to May 1, 1963, the defendant Melvin Brodell conveyed his interest in the land to the defendant Jerry Brodell, who made payment of the balance of the purchase price, with accrued interest, by delivering said payment to the Farmers & Merchants Bank of Tolna, North Dakota, where previous payments had been made by the defendant Melvin Brodell and retained by the bank for delivery to the plaintiff.
Because of Melvin Brodell's assignment of his interest in the land to Jerry Brodell and because of the tender by Jerry Brodell of the purchase price of the one-half interest in the land, the district court found the defendant Jerry Brodell to be the equitable owner of one-half interest in the land and that for these reasons the issue raised as to the right of the defendants to possession of the land, under the option agreement, had become moot. The court then ordered that the action be dismissed. A judgment rendered pursuant to this order was entered, and it is from this judgment that the plaintiff appealed and asked for a trial de novo.
After the appeal was taken in this case the plaintiff and appellant requested the trial court to appoint a receiver of the land involved in the first proceeding, pending the determination of the appeal. On submission upon affidavits of the order to show cause why a receiver should not be appointed, the trial court appointed a receiver.
The order, which was dated August 20, 1963, provided that the receiver should 'have the power as receiver to harvest and preserve...
To continue reading
Request your trial
-
State v. Howe, 569-A
...rather the "appearance" was made by appointment of the court. Neither did the parties participate at the "trial." See Olson v. Brodell, 128 N.W.2d 169 (N.D.1964), where party invoked jurisdiction of court to permit amendment to complaint. For further discussion on appearances, general and s......
-
Johnson v. Mark
...with Jeanne Johnson. The Barnes reasoning does not apply when the party is in possession under a lease agreement. See Olson v. Brodell, 128 N.W.2d 169, 177 (N.D.1964). [¶ 23] We conclude the district court's finding Steven Johnson and Jeanne Johnson abandoned the contract for deed is not cl......
-
Mann v. Zabolotny
...deed is not entitled to possession of the land until full performance unless the contract provides for possession. See Olson v. Brodell, 128 N.W.2d 169, 176-77 (N.D.1964); Lee v. Shide, 69 N.D. 541, 544, 288 N.W. 556, 557 (1939); 77 Am. Jur.2d Vendor and Purchaser § 355 (1997); 92A C.J.S. V......
-
Bjorgen v. Kinsey
...property in satisfaction of the judgment." The decision to appoint a receiver rests in the discretion of the trial court. Olson v. Brodell, 128 N.W.2d 169 (N.D.1964); see 30 Am.Jur.2d, Executions, Sec. 851 (1967); 65 Am.Jur.2d, Receivers, Sec. 19 (1972). We review a trial court's exercise o......