State v. Rosenquist

• Decision Date: 08 February 1952
• Docket Number: No. 7221,7221
• Citation: 51 N.W.2d 767,78 N.D. 671
• Parties: STATE v. ROSENQUIST et al.
• Court: North Dakota Supreme Court

Page 767

51 N.W.2d 767

78 N.D. 671

STATE v. ROSENQUIST et al.

No. 7221.

Supreme Court of North Dakota.

Feb. 8, 1952.

Syllabus by the Court.

1. A description in a conveyance of real property is sufficient if it identifies the property, or if it affords the means of identification, as by extrinsic evidence.

2. A deed will not be held void for uncertainty of description if it is possible to ascertain from the description in the deed, aided by extrinsic evidence not inconsistent with or contradictory of the deed, what property the deed was intended to convey. It is only when it remains a matter of conjecture what property was intended to be conveyed, after resorting to such extrinsic evidence as is admissible, that the deed will be held void for uncertainty of description of the land.

3. In construing a doubtful description, the court will keep in mind the position of the contracting parties and the conditions under which they acted, and interpret the language of the deed in the light of such circumstances. The maxim, 'that is certain which can be made certain' is applicable, and if the reference in the deed to the property is such that the court, by pursuing an inquiry based upon the words of reference, aided by extrinsic evidence not inconsistent with what is written, is able to identify and locate the land to which the description in the deed is intended to apply and to apply the description to such land then the deed is not void because of indefiniteness of description but is valid and will be given effect accordingly.

4. Where the description in a recorded deed is in some respects imperfect, ambiguous or indefinite, but the description in the deed is sufficient to put those who see it on an inquiry which duly pursued would disclose the identity and location of the land purported to be described, the recorded instrument is notice to subsequent purchasers or encumbrancers. Hence, if notwithstanding the defect in the description, the deed appears to be in the line of title, then it is not only constructive notice of all the facts disclosed by the record of the deed, but it puts the searcher upon inquiry suggested by the facts disclosed, and is notice to him of such facts as would have been disclosed by the inquiry.

5. One cannot rightfully invoke the jurisdiction of a court to enforce private rights or maintain a civil action for the enforcement of such rights unless he has in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy.

6. No person may maintain an action respecting a subject matter, in respect of which he has no interest, right or duty, either personal or fiduciary. To entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity.

7. NDRC 1943, 32-1701, provides: 'An action may be maintained by any person having an estate or an interest in, or lien or encumbrance upon, real property * * * against any person claiming an estate or interest in, or lien or encumbrance upon, the same, for the purpose of determining such adverse estate, interest, lien or encumbrance.' Held, that only a person who has 'an estate or an interest in, or lien or encumbrance upon, real property,' may maintain an action to determine adverse claims to such real property; that a person who has no estate or interest in, or lien or encumbrance upon, the real property has no right to maintain an action to determine adverse claims thereto, and is in no position to attack the estate or interest in, or lien or encumbrance upon such real property claimed by the defendant.

8. The plaintiff in an action to determine adverse claims must recover, if at all, on the strength of his own title and not on the weakness of the title of his adversary.

9. Where, in an action to determine adverse claims, it is alleged in the complaint that the plaintiff is the owner in fee simple, and the defendant in his answer denies that the plaintiff is the owner of the whole tract and alleges that the county had acquired a parcel of the land described in the complaint by tax deed, and thus had become the owner thereof, and that the defendant had purchased such parcel from the county and that the county had conveyed the same to the defendant by deed, and that thus the defendant became and is the owner of such parcel; and where the evidence shows to a certainty that the plaintiff is not the owner of, and never had any estate or interest in, or lien or encumbrance upon, the parcel conveyed by the county to the defendant, the plaintiff is in no position to attack the validity of the tax deed to the county or the estate and interest in such parcel conveyed to the defendant by the county.

10. A railroad company purchased a strip of land for a right of way, and in the deed the land was described as 's strip or piece of land, one hundred and fifty feet wide, being seventy-five feet wide, on the northerly side and seventy five feet wide on the southerly side of the center line of the railway of said railway company, as the same is now located and established, and extending across from the east side to the west side of the Southwest quarter (SW 1/4) of Section No. Twenty nine (29) in Township No. one hundred sixty three (163) North of Range No. Ninety Seven West, containing eight and eighty two one hundredths (8.82) acres, more or less.' No part of a railway extending across from the east side to the west side of the said SW 1/4, Section 29, had been construed at the time the deed was executed and delivered, and the railway was never constructed. Extrinsic evidence was offered in aid of the description showing that shortly before such deed was executed and delivered the railway company had made a survey of a railway extending across from the east side to the west side of said quarter section and that the map of such survey had been duly authenticated and verified by the chief engineer of the railway company about seven weeks before the deed was executed and delivered and that such survey was approved by the board of directors of the railway company ten days after the execution and delivery of the deed. Such map showed specifically and definitely the exact location and course of the center line of the railway extended across from the east side to the west side of said quarter section, which center line, according to the description in the deed, was also the center line of the strip of land 150 feet wide, extending across from the east side to the west side of said quarter section. It is held, for reasons stated in the opinion, that the deed was not void because of indefiniteness of description; that extrinsic evidence was admissible in aid of the description, and that when the description in the deed is construed in light of the situation of the parties and the circumstances existing at the time the deed was executed and delivered it is apparent that the parties intended to contract and did contract with respect to the strip of land 150 feet wide, being seventy-five feet wide, on the northerly side and seventy-five feet wide on the southerly side of the center line of the railway of the Great Northern Railway Company as located and established by their survey, and as shown on the map of such survey, authenticated and verified by the chief engineer of the said railway company prior to the time the deed was executed and delivered.

Wallace E. Warner, Atty. Gen., C. E. Brace and P. O. Sathre, Asst. Attys. Gen., for appellant.

George P. Homnes, Crosby, for respondent.

CHRISTIANSON, Judge.

The plaintiff brought this action against Mayme Rosenquist and Divide County to determine adverse claims to 'all that portion of the South half (S 1/2) of the Southwest quarter (SW 1/4) of Section twenty-nine (29) in Township One Hundred Sixty-three (163) North of Range Ninety-seven (97) West of the 5th P.M., and not heretofore conveyed by deeds to others by the plaintiff by and through the Board of University and School Lands.' The complaint is in the usual form in a statutory action to determine adverse claims. It alleges that the plaintiff is the owner in fee of the tract of land described in the complaint, subject to a contract of sale therefor to one Helen Anderson which contract is in good standing and in full force and effect. It further alleges that the defendants claim certain estates or interests in, or liens or encumbrances upon, the premises, adverse to the plaintiff. Plaintiff prays that the defendants be required to set forth all their adverse claims to the property and that the validity, superiority and priority thereof be determined; that the same be adjudged null and void; that the defendants be decreed to have no estate or interest in, or lien or encumbrance upon, said property; that the plaintiff's title be quieted as to such claims and that the defendants be debarred from further asserting the same. Both defendants interposed answers. The defendant Rosenquist in her answer denies that the plaintiff is the owner in fee of all the lands described in the complaint and alleges that she is the owner in fee of that part 'of the Southwest quarter (SW 1/4) of section twenty-nine (29) in Township One Hundred Sixty-three (163) North of Range Ninety-seven (97) West in Divide County, North Dakota, described as follows: a strip or piece of land one hundred and fifty feet wide, being seventy-five feet wide on the northerly side and seventy-five feet wide on the southerly side of the center line of a proposed right of way of the Great Northern Railway Company located and established by said Railway Company extending across from the East side to the West side of said quarter section and included within that part of said quarter section described in the complaint, also known as Auditor's Lot number eleven (11) of ...