Smith v. Nyreen

• Decision Date: 05 March 1957
• Docket Number: No. 7604,7604
• Citation: 81 N.W.2d 769
• Parties: Mary Frances SMITH, Plaintiff and Appellant, v. Minnie NYREEN and Carl W. Nyreen, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 769

81 N.W.2d 769

Mary Frances SMITH, Plaintiff and Appellant, v. Minnie NYREEN and Carl W. Nyreen, Defendants and Respondents.

No. 7604.

Supreme Court of North Dakota.

March 5, 1957.

Syllabus by the Court

1. The possession of land or minerals under one tenant in common is also the possession of the other cotenants.

2. The possession of the vendee under contract for deed is the possession of the vendor.

3. As long as there is no severance of minerals from the surface of the land the title of the owners of real property includes the minerals that lie beneath.

4. When one of the cotenants of land buys the interest of the other cotenants by contract, which reserved their undivided 8/9 share of the minerals thereunder, he becomes the vendee of the surface including his 1/9 interest of the undivided minerals thereunder. He is still a tenant in common of the minerals with his cotenants and his possession of the surface and the minerals is the possession of all.

5. Where a cotenant of the land and minerals has been in open adverse and undisputed possession thereof for ten years under color of title and paid all taxes assessed against the premises a valid title thereto is acquired which inures to all the tenants in common.

Burk & O'Connell, Williston, Meehl & Catlin, Marshall, Minn., for plaintiff-appellant.

Earl Walter and B. L. Wilson, Sr., Bowbells, for defendants-respondents.

GRIMSON, Chief Justice.

This is an action brought to vacate a final decree of distribution in the estate of Charles Nyreen issued by the County Court of Burke County, North Dakota, dated January 6, 1939. Said decree vested title to a one-third undivided interest in the N 1/2 of Section 18, Township 163, North, Range 92 West of the 5th P. M. in Minnie Nyreen as the widow of Charles Nyreen and a one-ninth undivided interest each in Morris Nyreen, Carl W. Nyreen, Anna Green, Ellen Austad, Herman H. Nyreen, and Harry Co. Nyreen, his children.

Plaintiff claims that she is the daughter and sole heir of Esther Nyreen, the second wife of Charles Nyreen and that as such she is entitled to the one-third in his estate that was awarded to Minnie Nyreen, who was the first wife of Charles Nyreen.

It appears that at the final hearing on the petition for distribution of the Nyreen Estate in County Court, the question was raised by Anna Green, the daughter of Charles and Minnie Nyreen, whether Charles and Minnie had ever been divorced. On a search of the clerk of court's records of Burke County a divorce file was found which showed that a divorce action between Charles and Minnie had been commenced but never completed. The hearing was adjourned to give plaintiff time to investigate and present any contrary evidence. She did not do that. The county court decree the widow's interest to Minnie. Plaintiff did not appeal from the decree nor do anything at all about it until September or October 1950, about eleven years later, when she had the records of the clerk searched and found a later action granting Charles a divorce from Minnie. Then she started this action December 22, 1952 claiming fraud in the issuance of the final decree.

The defendants deny the fraud and other charges of the plaintiff's complaint and plead laches by the plaintiff and other defenses. They claim ownership of the land by virtue of the final decree and set up a further title in themselves by adverse possession and payment of taxes for more than ten years as provided by Chapter 276, S.L.1951, Sec. 47-0603, NDRC 1943. They ask that title be quieted in them.

The evidence shows that upon the issuance of the final decree, the heirs named therein went into possession of the real estate as tenants in common. Stevahn v. Meidinger, 79 N.D. 323, 57 N.W.2d 1; Ellison v. Strandback, N.D., 62 N.W.2d 95. That decree professed to pass title. It was, therefore, color of title even if the proceedings on which it was based should be found invalid. 1 Am.Jur. Adverse Possession, Sec. 190, p. 898, and Sec. 196, p. 901.

The defendants first rented the land to one Stompero as their tenant. In April 1941 Carl W. Nyreen, one of the co-owners under the decree and one of the defendants, moved onto said premises as tenant. He lived on said premises and farmed them up to the time of the trial of this action. Possession of one cotenant is the possession of all. Ildvedsen v. First State Bank, 24 N.D. 227, 139 N.W. 105, 14 Am.Jur., Cotenancy, Sec. 23, p. 94 and cases cited. Carl had possession of the land including the minerals from April 1941 until 1946 as tenant in common of all the owners. Where there has been no severance of the minerals from the surface the title of the owners of real property includes not the surface thereof alone but also that which lies beneath the surface. 1 Am.Jur., Adverse Possession, Sec. 117, p. 857; Jones v. Brown, 211 Ark. 164, 199 S.W.2d 973.

In 1946 Carl purchased the premises on contract from the other co-owners. However, all of his co-owners reserved their undivided interest in the minerals in said land which amounted to 8/9ths of the undivided minerals.

Carl W. Nyreen held the surface of the land in possession in common with the vendors under his contract.

'The possession of real estate by a vendee under an executory contract of purchase is, in law, the possession of his vendor.' Schneller v. Plankinton, 12 N.D. 561, 98 N.W. 77. See also Burke v. Scharf, 19 N.D. 227, 124 N.W. 79.

He also had possession of the minerals in common with his cotenants because he owned an undivided 1/9th interest therein under his contract. While we held in Bilby v. Wire, N.D., 77 N.W.2d 882, that possession of the surface of land is not possession of several minerals, that case has no application here for the reason that under the facts of that case there was a complete severance of the mineral estate. In this case the severance was not complete. After Carl Nyreen purchased the property upon contract for deed, the estate possessed by him included both the surface and his interest in the minerals as a cotenant. His mineral interest was undivided and thus pervaded the entire mineral estate. This being so, his possession of the 1/9th mineral interest under his contract included the entire mineral estate. He was a tenant in...