Smith v. Mountrail County

• Citation: 70 N.W.2d 518
• Decision Date: 19 April 1955
• Docket Number: No. 7489,7489
• Parties: John W. SMITH, Plaintiff and Appellant, v. MOUNTRAIL COUNTY, a duly organized County in North Dakota; Edward Will, Alan Miller, Trustee, Charles R. Fox, Bruce Cabot, J. J. Cohn, Hayes Goetz, Walter Bruington, J. S. Abercrombie, Edward Dannewitz, F. B. Taylor, Flora Walter, and all other persons unknown, claiming to have any right, title interest in or lien or encumbrance upon the property described in the Complaint, Defendants and Respondents.
• Court: United States State Supreme Court of North Dakota

Page 518

70 N.W.2d 518

John W. SMITH, Plaintiff and Appellant, v. MOUNTRAIL COUNTY, a duly organized County in North Dakota Edward Will, Alan Miller, Trustee, Charles R. Fox, Bruce Cabot, J. J. Cohn, Hayes Goetz, Walter Bruington, J. S Abercrombie, Edward Dannewitz, F. B. Taylor, Flora Walter and all other persons unknown, claiming to have any right title interest in or lien or encumbrance upon the property described in the Complaint, Defendants and Respondents.

No. 7489.

Supreme Court of North Dakota.

April 19, 1955.

Rehearing Denied June 6, 1955.

Syllabus by the Court

1. Section 32-1707, NDRC 1943, provides the grounds upon which service by publication may be obtained upon an unknown person or persons defendant in an action to quiet title, and where the affidavit for publication of summons has been properly drawn in accordance with said statute and the other statutory provisions for securing service upon an unknown person or persons defendant have been strictly complied with, a judgment obtained in an action to quiet title is binding upon such unknown person or persons.

2. A valid judgment obtained in an action to quiet title against an unknown person is not subject to collateral attack by a successor in interest of such unknown person in a subsequent action to quiet title to the real property involved in a prior action to quiet title. Bartell v. Morken, N.D., 65 N.W.2d 270.

3. A person whose interest in real property does not appear of record in the Office of the Register of Deeds, Clerk of the District Court, or the County Auditor of the county in wich the land lies, and who is out of possession, and the land is idle, unimproved, and vacant, and there is nothing to put a prudent person on notice of the interest of such person, is an 'unknown person' within the terms of Section 32-1707, NDRC 1943, and a judgment entered in an action to quiet title in which such person has been properly served with process is binding upon such unknown person and is a bar to a subsequent action by such person and his successors in interest in an action to quiet title to the same real property involved in the first action.

Hyland, Foster & Conmy, Bismarck, for plaintiff and appellant.

Ella Van Berkom, Minot, for defendants and respondents Edward Will and Edward Dannewitz.

Cox, Pearce & Engebretson, Bismarck, for defendants and respondents J. S. Abercrombie and Charles R. Fox.

JOHNSON, Judge.

This action is brought in statutory form, Section 32-1704, NDRC 1943, to determine adverse claims. The action involves the East Half of the Northwest Quarter (E 1/2 NW 1/4) and the West Half of the Northeast Quarter (W 1/2 NE 1/4) of Section 26, Township 157 North of Range 94 West of the 5th P.M., Mountrail County, North Dakota.

The defendant, Edward Will, answered separately alleging ownership of the East Half of the Northwest Quarter (E 1/2 NW 1/4) and the Southwest Quarter of the Northeast Quarter (SW 1/4 NE 1/4) of Section 26, Township 157, Range 94, and sets forth that his source of title is derived from a tax deed from Mountrail County, dated December 20, 1943. He further alleges that his title was adjudicated by the District Court of Mountrail County, North Dakota, resulting in judgment filed and docketed on the 31st day of August, 1944; that he has placed improvements on the land consisting of fencing, removing rocks, and breaking the land, of the aggregate value of $500 and prays for judgment in that amount in the event that the plaintiff prevails.

Edward Dannewitz answered separately, alleging his ownership of the Northwest Quarter of the Northeast Quarter (NW 1/4 NE 1/4) of Section 26, Township 157, Range 94. Dannewitz obtained his title from Edward Will by warranty deed dated December 12, 1947, and he alleges that he has been in open and notorious possession of the premises since that date.

The defendant Charles R. Fox answers separately and states that he has a valid and subsisting royalty interest in and to the premises under and by virtue of an oil and gas lease dated August 10, 1949, made, executed and delivered by Edward Will, a single man, to Alan Miller, Trustee, covering the premises described in the plaintiff's complaint, which lease was for a term of ten years from date and as long thereafter as drilling operations are continued; that thereafter on March 7, 1950, Alan Miller, Trustee, for value, conveyed a 1/64th of 8/8th royalty interest in and under said lease to this defendant.

The defendant, J. S. Abercrombie, answered separately and alleges that he has a valid and subsisting leasehold interest in the premises described in the plaintiff's complaint under and by virtue of the oil and gas lease made, executed and delivered by Edward Will, dated August 10, 1949, to Alan Miller, Trustee, and covering the premises described in the plaintiff's complaint, which lease was for a term of ten years from said date and as long thereafter as drilling operations were conducted, as provided in said lease; that thereafter and on May 15, 1951, said oil and gas lease was for value sold and assigned to the defendant by Alan Miller individually and as trustee for himself, Bruce Cabot, J. J. Cohn, Hayes Goetz and Walter Bruington, as beneficiaries.

All of the instruments referred to in the answers have been recorded in Mountrail County, North Dakota, the county in which the land is situated.

Separate replies were made to the answers filed by the above mentioned defendants. It is unnecessary to set forth the contents of these replies. None of them allege any affirmative defenses or other grounds of relief included within the scope of Section 32-1709, NDRC 1943.

The trial court determined that the quiet title action maintained by Edward Will adjudicated the adverse claims of Clent Smith and his successors in interest, Alice M. Smith and John W. Smith, as parties to said action under the designation of 'all other persons unknown'. Upon this determination by the trial court, judgment was entered decreeing that Edward Will was the owner in fee simple of the premises described as the East Half of the Northwest Quarter (E 1/2 NW 1/4) and the Southwest Quarter of the Northeast Quarter (SW 1/4 NE 1/4) of Section 26, Township 157 North, Range 94, subject to existing oil and gas leases made, executed and delivered by Edward Will on said premises. It was further decreed and determined that Edward Dannewitz was the owner in fee simple of the premises described as the Northwest Quarter of the Northeast Quarter (NW 1/4 NE 1/4) of Section 26, Township 157, Range 94, subject to existing oil and gas leases made and executed by Edward Dannewitz upon the premises.

The plaintiff appeals and demands a trial de novo.

He makes two contentions: First, that the judgment in the previous quiet title action of Edward Will, plaintiff, v. Axel Pearson, Civil No. 3600, in the District Court of Mountrail County, which judgment was entered August 31, 1944, covering the lands in controversy in the case at bar and other lands, is subject to collateral attack for the reason that the plaintiff was not a party to said action, and was not served as a person unknown; and, Second, that the tax title proceedings are fatally defective by reasons of the absence of a certificate of tax sale.

Mountrail County issued a tax deed by its County Auditor to itself as a municipal corporation, dated October 1, 1941, and filed January 27, 1942, at 9 a. m., covering the premises involved in this action and other lands. Thereafter it sold the land to Edward Will, by tax deed dated December 20, 1943, and filed for record March 4, 1944. The tax deed covers the land in question as well as other land. On the 19th of April, 1944, Edward Will, one of the defendants in this action, commenced an action as plaintiff against Axel Pearson and others to quiet the title to the land involved in this action as well as other land. The summons states that the complaint will be filed in the Office of the Clerk of the District Court in and for Mountrail County, North Dakota, and there is subjoined to the summons a notice signed by the plaintiff's attorney containing a description of the land to which the action relates, which includes the land involved in this action. Section 32-1707, NDRC 1943. The title to the action covers several named defendants and also 'all persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the complaint.'

On August 29, 1951, Alice M. Smith, the mother of the plaintiff, by warranty deed conveyed the premises involved in this action to the plaintiff. The present action was commenced on March 17, 1952. The deed to the plaintiff was recorded in Mountrail County, February 29, 1952, or less than three weeks before the commencement of this action. Alice M. Smith was made a party plaintiff in this action, but it would appear she had no interest in the property at the time of the commencement thereof. This action was tried on the 4th day of September, 1953, in the city of Stanley, Mountrail County, North Dakota. At that time, Alice M. Smith was deceased. The plaintiff's attorney moved to have her name stricken from the title and this motion was granted. This action, therefore, is being carried on by John W. Smith as plaintiff and appellant.

Attached to the summons and complaint in the action of Edward Will against Axel Pearson and others, and known as Case No. 3600 in Mountrail County, North Dakota, is sttached a Sheriff's Return--Defendants Not Found. This return recites:

'that the summons and complaint in the above entitled action came into my hand for service upon the following named defendants on the 22nd day of April 1944, to-wit: (and then it names all of the named defendants and refers to all persons unknown, etc., then goes on to say) That after making diligent inquiry for the purpose of serving the said summons and complaint, I am unable to make personal service thereof upon said defendants, or...