Piper v. Taylor
| Decision Date | 26 April 1922 |
| Citation | 188 N.W. 171,48 N.D. 967 |
| Court | North Dakota Supreme Court |
Action to quiet title in District court, Dickey county, McKenna, J.
The plaintiff has appealed from the judgment.
Affirmed.
Judgment of the trial court affirmed, with costs.
E. E Cassels, T. L. Brouillard, and E. T. Burke, for appellant.
F. J Graham, W. S. Lauder, for respondents.
The mere fact that a lease of certain premises exists does not estop one named as lessee to question the other's title. Hebden v. Bina, 17 N.D. 235.
"Open notorious and adverse possession of the real property is notice to the world of every right or interest owned by or held by the person or persons in possession whether such right be legal or equitable." Krause v. Krause, 30 N.D. 54-67; See also O'Toole v. Omlie, 8 N.D. 444; Hadlin v. Les, 21 N.D. 495; 48 Cent. Dig. 765.
Statement.
The administratrix brings this action to quiet the title of the estate in two lots, and a two-story building situated thereupon, in the town of Monango, N.D. The facts necessary to be stated are as follows: In 1899, one Caldwell, then the owner of the lots, contemplated the erection of a store building. Various persons in the town were interested in erecting a town hall. Some $ 1,200 was raised for such purpose through the sale of shares at $ 10 per share to some 60-odd individuals. A voluntary unincorporated association was formed called the Monango Hall Association. Through negotiations had between Mr. Caldwell and the trustees of this association, it was agreed that the association might construct, upon the first story of the building to be erected by Mr. Caldwell, a second story for its use. Pursuant to such negotiations, bids were requested, and a contract made for the construction of a two-story building, the cost of the second story to be paid by the association. The building was accordingly so erected. The cost of the second story, about $ 1,300, was paid by the association. This amounted to four-ninths of the total cost of the building. The parties secured legal advice upon the manner in which the right of the association should be evidenced. Legal advice was given, to the effect that a deed of the second story alone could not be made; that a lease for more than 20 years could not be made by reason of the inhibition of the statute, then in force, prohibiting leases of town or city lots for a period longer than 20 years. Section 3310, R. C. 1899. The Hall Association desired a lease for 99 years. Caldwell agreed so to lease. The inhibitions of the statute prevented. Accordingly, a lease was executed from Caldwell and his wife to five persons, including Caldwell, as trustees of and for the Monango Hall Association, and any assignee thereof and to their successors in office, demising the second story of the building for a period of 20 years from November 4, 1899, upon a consideration of $ 1,308 paid. This lease further provided that the trustees should pay four-ninths of all taxes assessed, and the leased premises should be insured for the benefit of such trustees; that such trustees should keep in repair the leased premises and the roof thereof, excepting that Caldwell should keep the eavestroughs in repair; that upon its termination the trustees should have the right of renewal for a further period of 20 years upon the payment of $ 1. This lease was dated October 31, 1899. It was acknowledged March 15, 1901, and recorded a few days thereafter. The parties thereafter had negotiations for the purpose of making an effort to change the law. Their attorney drew a proposed law. Their representative from Dickey county urged its passage. The legislature, in 1903, did amend the law so as to permit the leasing of city lots for a period of 99 years. Chap. 151, Laws 1903; § 5289, C. L. 1913. Caldwell agreed that after the law was changed he would execute a lease for 99 years. Prior to the time that such act became effective as a law, Caldwell sold and conveyed the premises to one Piper, now deceased. During his lifetime, Piper was a member or director of the association. He was at some of the meetings of the association in 1902. He was elected as a director, and served his first term in 1903. The deed to Mr. Piper recited that it was subject to all the terms, covenants, and agreements of the lease of the upper story to the trustees, and that the grantee assumed and agreed to perform all acts under said lease agreed to be done and performed. The attorney who drew the lease testified that a lease for 99 years was drawn, and was signed after the law was amended. Mr. Piper, the deceased, and his wife (not his present widow) signed it, and he took their acknowledgement. Members of the Hall Association signed the same, but he does not know who they were. He had a copy of this lease; he has hunted for it, but cannot find it. The term in such lease began upon the date of the 20-year lease. None of the members or officers of the association were able to testify to the delivery, existence, or provisions of such 99-year lease.
The Hall Association went into possession of the second story of the building upon its completion. It has had possession, and has paid four-ninths of the taxes ever since. (From 1901 to 1919 the premises have been assessed in the name of Piper and the Hall Association). It has carried insurance in its own name. It has received the rents and profits in...
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