Rasmusson v. Schmalenberger, 5879.

• Decision Date: 09 March 1931
• Docket Number: No. 5879.,5879.
• Citation: 235 N.W. 496,60 N.D. 527
• Parties: RASMUSSON v. SCHMALENBERGER.
• Court: North Dakota Supreme Court

60 N.D. 527

235 N.W. 496

RASMUSSON

v.SCHMALENBERGER.

No. 5879.

Supreme Court of North Dakota.

March 9, 1931.

Syllabus by the Court.

A judgment of a district court of this state valid on its face is not subject to collateral attack.

Syllabus by the Court.

The district court is a court of general jurisdiction of causes at law and in equity, and has power to determine all controversies or questions of difference that can be made the subject of a civil action.

Syllabus by the Court.

“Jurisdiction” is the power to inquire into the facts and apply the law and adjudge concerning the question involved. Jurisdiction does not relate to the rights of the parties, but to the power of the court to hear and determine the questions of difference between them. A court which has jurisdiction over a cause, and the parties thereto, does not lose jurisdiction because it makes a mistake in determining either the facts or the law, or both.

Syllabus by the Court.

For the purpose of preserving the interests of beneficiaries in a trust estate, or the interests of remaindermen under a deed, a court of equity has power to order a sale of real property, although the instrument creating the interests of such beneficiaries or remaindermen contains no power or authority for so doing, and to bind by its judgment parties, not in being, who may thereafter become beneficiaries of the trust or remaindermen under the deed.

Syllabus by the Court.

A contingent interest in real estate is bound by judicial proceedings affecting the property where the court had before it all the parties that can be brought before it, and the court acts upon the property according to the rights that appear, without fraud. These powers are inherent in a court of equity, and rest upon considerations of necessity and expediency.

Additional Syllabus by Editorial Staff.

Appeal from District Court, Stark County; Pugh, Judge.

Action by George N. Rasmusson, trustee, against Fred J. Schmalenberger. Judgment for plaintiff, and defendant appeals.

Affirmed.

S. P. Rigler, of Hebron, for appellant.

Ritchie & Ployhar, of Valley City, for respondent.

CHRISTIANSON, C. J.

Plaintiff brought this action to enforce specific performance of a certain contract for the sale of land by the plaintiff to the defendant. The defendant admits that he purchased the land from the plaintiff under a written contract as alleged in the complaint, and he alleges that he is ready, willing, and able to perform the terms thereof by paying the balance of the purchase price and will do so upon plaintiff's delivery to him of a merchantable title; but he asserts that plaintiff is not in position to convey such title. The case was submitted upon a stipulated statement of facts. The trial court found the facts to be as stipulated; and from such facts drew the conclusion of law that the plaintiff was able, ready, and willing to convey a good and merchantable title, and had tendered such title in accordance with the terms of the contract. The defendant has appealed and demands a trial anew in this court. The facts, as stipulated, are as follows:

Plaintiff is the duly appointed and acting trustee and grantee under a certain trust deed, made, executed, and delivered by Nels P. Rasmusson and Mary E. Rasmusson, his wife, on the 27th day of November, A. D. 1908, and which said trust deed was duly filed for record in the office of the register of deeds in and for the county of Stark, state of North Dakota, on the 12th day of June, A. D. 1909, at 11 o'clock a. m., and recorded in Book 21 of Deeds on page 538. (The original deed was attached to and made part of the stipulation of facts.)

The grantors in said trust deed, that is, Nels P. Rasmusson and Mary E. Rasmusson, his wife, were the father and mother of the plaintiff, George N. Rasmusson, trustee, and at the time of the conveyance under said trust deed as hereinbefore stated, the said Nels P. Rasmusson was the owner and holder of the legal title of the real estate therein conveyed.

The deed contained the following provision:

“And the said parties of the first part (Nels P. Rasmusson and Mary E. Rasmusson, his wife) hereby grant and convey the hereinbefore described premises in trust unto the said party of the second part to be demised as follows, to-wit:

Unto George N. Rasmusson, for and during his natural life, to be by him used and enjoyed during his natural life, conditioned, however upon the payment of all legal taxes and assessments, which may be levied or assessed against the said premises.

And upon the death of the said George N. Rasmusson the said above described premises and the whole thereof are hereby granted in fee simple unto the lawful issue of the body of the said George N. Rasmusson share and share alike.

To have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining unto the said George N. Rasmusson for and during his natural life, and upon his death unto the issue of his body then living, share and share alike, forever.”

The plaintiff, as trustee, did on the 20th day of March, A. D. 1930, enter into a contract in writing, for the sale of the real property as hereinafter set forth, with the defendant, Fred J. Schmalenberger, wherein and by the terms of which the said plaintiff did agree to sell and convey and said defendant did agree to purchase lots 1, 2, 7, 8, 9, and 10 of section 3, in township 140 north, of range 91, west of the Fifth Principal Meridian, Stark county, N. D., for the purchase price of $6,000, payable in the following manner, to wit, $300 at the time of the execution and delivery of said contract of purchase, which amount has been paid by the said defendant, and the balance, that is, $5,700, on or before May 1, 1930, upon delivery of deed together with abstract of title, showing merchantable title, free from all incumbrances. (It was stipulated that a copy of the contract be received in evidence.)

On the 11th day of February, A. D. 1930, the plaintiff herein instituted an action in the district court of Mercer county, N. D., wherein the plaintiff herein, that is, George N. Rasmusson, trustee, was plaintiff, and George N. Rasmusson, Henrietta I. Rasmusson, Robert F. Rasmusson, Helen A. Rasmusson, Margaret E. Rasmusson, Nels Paul Rasmusson, George Howard Rasmusson, and Charles W. Rasmusson were defendants, for the purpose of obtaining an order and judgment by said court, authorizing and directing this plaintiff to convey and sell the real property above described and other properties, all of which were conveyed by the deed of trust from Nels P. Rasmusson.

At the time of the commencement of the action by the plaintiff herein in the district court of Mercer county, N. D., the lawful issue of the plaintiff, George N. Rasmusson, trustee, and Caroline Rasmusson, his wife, were the beneficiaries then existing and now existing and are as follows, to wit: Henrietta I. Rasmusson, twenty-four years of age; Robert F. Rasmusson, twenty-two years of age; Margaret E. Rasmusson, twenty years of age; Helen A. Rasmusson, nineteen years of age; Nels Paul Rasmusson, seventeen years of age; and George Howard Rasmusson, ten years of age.

After proceedings duly had in the said action commenced by this plaintiff in the district court of Mercer county, N. D., judgment was duly entered therein, wherein and by the terms of which the said district court did authorize and direct the plaintiff to sell the real property above described to the purchaser thereof and to receive the consideration therefor; such consideration to be substituted and held in lieu of the real estate so ordered to be sold.

Thereafter and on the 29th day of May, A. D. 1930, the plaintiff tendered to the defendant the abstract of title covering the property above described, together with a quitclaim deed to said property running to the defendant from George N. Rasmusson and Caroline Rasmusson, his wife, also quitclaim deeds running to this defendant from Henrietta I. Rasmusson, Robert F. Rasmusson, Helen A. Rasmusson, and Margaret E. Rasmusson, who are the adult beneficiaries under said deed of trust now existent; also a warranty deed from George N. Rasmusson and Caroline Rasmusson, his wife, to the defendant herein, and which said warranty deed conveys the interest of the grantors in and to the real property above described, to the defendant herein, and which said interest consists of a life interest in and to said property and that the plaintiff herein did further tender to the defendant at said time a warranty deed executed by Charles N. Rasmusson and Hannah G. Rasmusson, his wife, to the defendant and covering lots 9 and 10, of section 3, in township 140 north, of range 91, Stark county, N. D., conveying all of the right, title, and interest of the said Charles N. Rasmusson and Hannah G. Rasmusson, his wife, in and to said property to the defendant.

At the same time, to wit, on May 29, 1930, the plaintiff herein also tendered to the defendant a certain deed executed by plaintiff as trustee and running to the defendant covering the real property involved in this action.

Said tender was duly and regularly made by this plaintiff to the defendant together with demand for the balance of the purchase price for said property, but the defendant, Fred J. Schmalenberger, refused to accept said deeds of conveyance for the reason that in his opinion the title to said real property was and is defective and imperfect and that the plaintiff is not in position to convey to this defendant merchantable title to this land.

The defendant is ready, able, and willing to perform and carry out the terms of the contract for deed covering the purchase by this defendant of the premises first above described, and he will make such payment upon the tender and delivery of a merchantable title to the premises. But the “defendant contends the plaintiff herein is without legal authority to sell and convey the land which the defendant has...