Petersen v. Petersen

• Decision Date: 03 September 1976
• Docket Number: No. 11736,11736
• Citation: 245 N.W.2d 285,90 S.D. 666
• Parties: Hans PETERSEN, Plaintiff and Appellant, v. Chris PETERSEN et al., Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 285

245 N.W.2d 285

90 S.D. 666

Hans PETERSEN, Plaintiff and Appellant, v. Chris PETERSEN et al., Defendants and Respondents.

No. 11736.

Supreme Court of South Dakota.

Sept. 3, 1976.

Gary E. Davis, Johnson, Johnson & Eklund, Gregory, for plaintiff and appellant.

J. W. Grieves, Winner, for defendants and respondents.

WOLLMAN, Justice.

This is an appeal from an order denying appellant's motion to set aside a judgment quieting title to and ordering the partition sale of some 505 acres of land in Mellette County South Dakota. We affirm.

In June of 1945 appellant commenced an action for the partition and sale of the land in question. On November 24, 1945, the circuit court entered a judgment decreeing appellant to be the owner of a 15/18th interest in the land; two of appellant's brothers, Chris and Knut Petersen, and a sister-in-law, Mary Petersen, were adjudged to be the owners of the remaining 3/18ths interest in the land. The judgment further decreed that the land be sold at partition sale and that the real estate taxes that appellant had paid on the land during prior years should be held to be in full satisfaction of all rents that appellant might have been charged with for his use and occupancy of the land (the court having found that appellant had been in possession of the land since 1932).

The partition sale was never held, however, and appellant continued in possession of the land, apparently without incident, until sometime in 1972 when he asked Attorney William F. Day of Winner, South Dakota, to commence legal action to determine his rights in the land, Knut Petersen and Mary Petersen having died. Mr. Day in turn asked J. M. Grossenburg, who subsequently went into partnership with him, to work on the matter. Mr. Grossenburg prepared a legal memorandum for Mr. Day in which he concluded that appellant's claim of adverse possession against the owners of the remaining fractional interest in the land was not likely to be successful. After discussing the matter with Mr. Day and having several conferences with appellant, Mr. Grossenburg prepared and served a complaint asking that appellant be adjudged to be the sole owner of the land on the basis of his adverse possession of the same, or in the alternative that appellant be decreed to be the owner of a 600/720th interest in the land, that Chris Petersen and the heirs of Knut Petersen and Mary Petersen (hereinafter referred to as defendants) be decreed to be the owners of their respective shares of the remaining fractional interest in the land, and that the land be partitioned among the parties according to their respective interests or sold if actual partition could not be had.

By letter dated July 9, 1974, Mr. Grossenburg informed appellant that the action was scheduled to be heard on the morning of July 23, 1974, and advised appellant to be present at the courthouse in White River, South Dakota, at that time. When appellant did not appear for trial at the appointed time, Mr. Grossenburg went to his home in White River. Appellant was not there, however (appellant testified at the hearing on the motion that he was lying ill at his ranch home on the morning of trial), and Mr. Grossenburg was unable to contact him by phone. Mr. Grossenburg returned to the courtroom and entered into a stipulation with defendants' attorney that appellant's claim of ownership based upon adverse possession be withdrawn, that the ownership of the land be decreed as set forth in appellant's complaint, that the trust officer of the Farmers State Bank in Winner be named as referee for the purpose of making a partition sale, and that the amount of taxes paid by appellant on defendants' share of the land should be offset against plaintiff's use of defendants' share of the land. Judgment was subsequently entered decreeing ownership of the land in the proportions set forth in appellant's complaint and ordering that a partition sale be held.

On July 24, 1974, Mr. Grossenburg sent appellant a two-page letter which fully and completely explained the actions that Mr. Grossenburg had taken during the trial on the preceding day. Mr. Grossenburg explained that he had withdrawn the claim of adverse possession of the 3/18th interest because of the fact that in the 1945 action appellant had admitted that he did not own the 3/18ths interest and also because appellant had apparently written a letter in 1972 to one of the owners of the fractional interest asking how much she and the other heirs wanted for their interests in the land. Mr. Grossenburg explained in the letter, as he apparently had done in office conferences with appellant, that his purpose in including the adverse possession claim in the complaint was to attempt to generate a reasonable settlement with the owners of the outstanding factional interest. He pointed out that because all of the owners of the fractional interest were living it might be possible to negotiate a settlement with them, and that failing a settlement the land would be sold at a partition sale. The letter closed by asking appellant to advise Mr. Day and Mr. Grossenburg whether he was interested in buying the fractional shares owned by defendants or whether he desired that the property be sold and the proceeds divided.

On August 16, 1974, Mr. Grossenburg wrote to the trust officer who had been appointed as referee and asked him to proceed with the appraisal of the land; a copy of this letter was sent to appellant. Mr. Grossenburg subsequently sent a copy of the appraisal report to appellant and advised him that defendants' attorney was in the process of obtaining a settlement proposal from his clients.

By letter dated January 22, 1975, a copy of which was sent to appellant, Mr. Grossenburg advised defendants of the size of their undivided fractional interests and the amount of money those shares would be worth at the appraised price. The letter stated in part that:

'Our client, Hans Petersen, hereby offers to purchase your share in the 505 acres for the appraised amount which is listed below. If you want to accept this offer, please let us know immediately and we will send a Deed and once the Deed is returned to us signed by you, we will send a check for the appraised amount.

'If all of the property can not be purchased in this manner, it will be sold at public auction and the proceeds distributed.'

Mr. Grossenburg testified that this letter was sent after appellant had spent a good deal of time with him going over the fractional interests and computing the amounts due each owner. Prior to the time the letter was sent appellant had told Mr. Grossenburg to, in Mr. Grossenburg's words,

"Definitely sell it if we can sell it for the appraised price.' And in fact I believe he had written a check--we had made an offer to one of the heirs for less than the appraised price and he gave me a check to hold in the file because that heir refused to take less than the appraised price.'

On January 27, 1975, appellant wrote to Mr. Grossenburg and in substance stated that he did not like the way the paper (presumably the judgment) was made up and that he was going to go to court with them (presumably the defendants) if he could. Mr. Grossenburg testified that appellant had expressed unhappiness over the fact that he could not acquire full ownership of the property by adverse possession but had agreed with Mr. Grossenburg's advice that he could not get it by adverse possession and should attempt to resolve the matter by offering to pay defendants the appraised value for their interests in the property. Mr. Grossenburg testified...