Schmidt v. Schmidt, 960197
Decision Date | 20 March 1997 |
Docket Number | No. 960197,960197 |
Citation | 1997 ND 44,560 N.W.2d 886 |
Parties | Arnold SCHMIDT, Personal Representative of the Estate of Odelia Schmidt, Deceased, Plaintiff and Appellee, v. Gerald SCHMIDT, Defendant and Appellant. Civil |
Court | North Dakota Supreme Court |
Thomas A. Wentz, of Pringle & Herigstad, P.C., Minot, for plaintiff and appellee.
Gerald Schmidt, Max, pro se.
¶1 Gerald Schmidt appealed from a district court judgment evicting him from farmland in Odelia Schmidt's estate. We affirm.
¶2 The relevant facts underlying this eviction action are not in dispute. In 1978 Wilson and Odelia Schmidt sold their family farm to their son, Gerald, on a contract for deed. Wilson died in 1980 and Odelia died in 1990. Odelia's estate brought an action to cancel the contract for deed, because Gerald had not made annual payments for many years. The district court entered a judgment canceling the contract for deed and ordering the property sold at a sheriff's sale. Gerald appealed and in Schmidt v. Schmidt, 540 N.W.2d 605 (N.D.1995), this court upheld that judgment.
¶3 On March 5, 1996, the McLean County sheriff issued a sheriff's deed conveying the farmland to Arnold Schmidt, Gerald's brother, as personal representative of Odelia's estate. The personal representative leased the farmland to tenants, but Gerald refused to surrender possession of the farmland or to allow the tenants to farm it. The estate then brought this eviction action under Chapter 33-06, N.D.C.C., requesting the court to order Gerald removed from the premises and to deliver possession of the farmland to the estate and its lessees. Gerald filed an answer claiming that he, as an heir of the estate and one of the farmland devisees, The court held a bench trial, and on May 16, 1996, entered a judgment of eviction. Gerald appealed.
¶4 Gerald's defense to the eviction action raises only a legal issue whether the estate, through its personal representative, was legally entitled to the judgment of eviction. We conclude, as a matter of law, the estate was entitled to a judgment of eviction against Gerald. 1
¶5 Under Section 33-06-01(3) and (5), N.D.C.C., a party can bring an eviction action to recover possession of real estate when another "unlawfully holds and keeps the possession of any real property" or "continues in possession after a sale of the real property under ... any judicial process and after ... the execution and delivery of a deed, or after the cancellation and termination of any contract for deed...." Under Section 30.1-18-09, N.D.C.C., the personal representative has the authority to take possession of the decedent's property, as against the heirs and devisees, to administer the estate:
(Emphasis added.)
The Editorial Board Comment to this section of the probate code clearly states the personal representative's decision that he needs to take possession of the property for administration purposes is conclusive against heirs and devisees:
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In re Estate of Hass, 20010233.
...sale." The personal representative's decision to take possession of estate property is conclusive against the heirs and devisees. Schmidt v. Schmidt, 1997 ND 44, ¶ 5, 560 N.W.2d 886 (N.D.1997); N.D.C.C. § [¶ 14] DeKrey testified that he believed the $62,000 offer made by the tenants was a f......
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Estate of Schmidt, Matter of, 970183
...action. A judgment of eviction was entered on May 16, 1996. Gerald appealed. We affirmed the eviction judgment in Schmidt v. Schmidt, 1997 ND 44, 560 N.W.2d 886. ¶6 In a petition of May 29, 1996, Gerald alleged heirs and devisees other than himself may have received improper distributions f......