Stevahn v. Meidinger

• Decision Date: 14 October 1952
• Docket Number: No. 7263,7263
• Citation: 57 N.W.2d 1,79 N.D. 323
• Parties: STEVAHN v. MEIDINGER.
• Court: North Dakota Supreme Court

Page 1

57 N.W.2d 1

79 N.D. 323

STEVAHN v. MEIDINGER.

No. 7263.

Supreme Court of North Dakota.

Oct. 14, 1952.

Rehearing Denied Dec. 20, 1952.

Syllabus by the Court.

1. On the death of an owner of real property intestate, the property passes at once to the heirs of the intestate, subject to the control of the county court and to the possession of the administrator appointed by that court for the purpose of administration.

2. The heirs of a deceased intestate occupy the place of the ancestor as regards the taking of the interest in the ancestor's property and receive no better right to the property than the ancestor had.

3. Where an owner of real property intestate, on his death is survived by more than one heir the descent of the property by operation of law to the several heirs creates a tenancy in common.

4. Tenants in common hold by several and distinct titles, with unity of possession. No privity of estate exists between them, and as between themselves their interests are several, there being no unity of title, each owner is considered solely and severally seized of his share.

5. A cotenant can deal with strangers as he will in so far as his own undivided moiety is concerned. He can sell, lease, mortgage or pledge it as he can any other property that he may own.

6. A tenant in common is entitled to possession of the common property as against all the world save his cotenants; and no one can complain of the exclusive use of the common property by one tenant in common except his cotenant.

7. A co-owner of real property has a right to enter upon the common estate and take possession of the whole thereof, subject only to the equal right of his companions in interest, with whose possession he may not interfere.

8. Each tenant in common is equally entitled to the use, benefit, and possession of the common property, and may exercise acts of ownership in regard thereto, and so may authorize a third person to do whatever he himself could have done, the limitation of his right being that he is bound so to exercise his rights in the property as not to interfere with the rights of his cotenant.

9. A corporation may become a cotenant.

10. The share of each cotenant in the rental received for the common property for a given period is measured by his interest in such property during such period.

11. In this case the plaintiff was a cotenant owning a one-twelfth interest in a farm in this state. During the farming season of 1947 a cotenant who owned the remaining eleven-twelfths interest in the common property planted, harvested and threshed a crop on such common property and thus obtained the rental for the land during such farming season. It is held for reasons stated in the opinion that the plaintiff's share in the rental for the common property during said farming season of 1947 was measured by his interest in the land, namely, a one-twelfth share of the rental for the common property during said farming season of 1947.

John F. Lord, Mandan, and Robert Chesrown, Linton, for appellant.

B. E. Kretschmar, Ashley, and Paul O. Kretschmar, Eureka, S. D., for respondent.

CHRISTIANSON, Judge.

Plaintiff brought this action to recover the rental of certain lands in McIntosh County in this state for the farming season of 1947. The trial court held that the plaintiff was entitled to recover only one-twelfth of the rental of the land in question for the farming season of 1947. The plaintiff has appealed and contends that he is entitled to recover all of such rental and that the trial court erred in rendering judgment in his favor for only one-twelfth thereof.

In appellant's brief it is said:

'This is an appeal from the judgment of the District Court, upon questions of law only, the issue on appeal being whether the District Court erred, as a matter of law, in limiting plaintiff's recovery to one-twelfth of the rental of the real estate for the 1947 season. * * * Appellant should have judgment for the full rental for 1947 as it was found by the District Court; $2021.81, and for his costs.'

The respondent contends that the decision of the trial court is correct. In respondent's brief it is said that on the basis of the evidence and the law applicable thereto the judgment rendered by the trial court is proper and 'the judgment of the lower court should be affirmed.'

The evidence adduced upon the trial was not embodied in a settled statement of the case and we have no means of knowing what evidence was introduced. In these circumstances the facts found by the trial court must be accepted as true. Ryan v. Bremseth, 48 N.D. 710, 186 N.W. 818. The material facts in the case as so found are as follows: Andreas Stevahn, the father of the plaintiff, died intestate on April 9, 1941, possessed of certain real property in McIntosh County in this state. There survived him as his next of kin and heirs at law; his wife, Christina Stevahn, his daughters, Lydia Ketterling, Christine Bier and Amanda Stevahn, and his sons, A. P. Stevahn, Ernest Stevahn, Arthur Stevahn, A. G. Stevahn and Alvin Stevahn, the plaintiff in this action. In due time proceedings for the administration of the estate of said Andreas Stevahn, deceased, were had in the County Court of McIntosh County in this state. Christina Stevahn, the surviving widow of said decedent, was duly appointed and qualified as administratrix of the estate of Andreas Stevahn, deceased, and letters of administration issued to her on May 26, 1941. At the time of the death of said decedent the real property involved in this action was encumbered by two mortgages each bearing date November 1, 1933. There was a first mortgage to the Federal Land Bank of St. Paul, Minnesota, and a second mortgage to the Land Bank Commissioner. On April 14, 1945, Christina Stevahn, the widow of the decedent, A. P. Stevahn, a son, and Lydia Ketterling, Amanda Stevahn and Christine Bier, daughters of said Andreas Stevahn, deceased, and Christ Bier, Jr., the husband of Christine Bier, for a good and valuable consideration conveyed to the Federal Farm Mortgage Corporation all the right, title and interest that each of them had in the real property in question. Default having been made in the terms and conditions of such first mortgage action for the foreclosure of such mortgage was duly brought in the District Court of McIntosh County. In such action all the above mentioned next of kin and heirs of said Andreas Stevahn were named defendants. Such proceedings were had in such action that judgment of foreclosure was duly rendered and entered in said action an August 31, 1945. Thereafter special execution issued upon such judgment and the premises described in the said mortgage to the Federal Land Bank and in such judgment of foreclosure were duly sold to the Federal Land Bank of St. Paul, Minnesota, the plaintiff in such action on October 3, 1945, and sheriff's certificate of sale was duly issued to the said Federal Land Bank on that same day.

The laws of the State provide that property sold subject to redemption 'may be redeemed * * * by * * * The judgment debtor, or his successors in interest' in the manner provided by law, and that 'The judgment debtor or redemptioner may redeem the property from the purchaser within one year after the sale'. NDRC 1943, 28-2401, 28-2402.

No redemption was made within the period of one year as provided by NDRC 1943, 28-2402 or at all. The statutory time for redemption expired on October 3rd, 1946. At that time the right of redemption of all the above mentioned next of kin and heirs of said decedent had expired with the exception of the plaintiff in this action who was inducted into the military service of the United States on November 23, 1945, and continued in such service until he was honorably discharged therefrom on February 10, 1947. His right to redeem was extended under the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, 50 U.S.C.A.Appendix, Sec. 525. On October 7, 1946, there was executed and delivered to the Federal Land Bank of St. Paul a sheriff's deed for the premises in question. Our statutes provide that:

'Such deed shall vest in the grantee all the right, title, and interest of the mortgagor in and to the property sold, at the time the mortgage was executed, or subsequently acquired by him, and shall be a bar to all claim, right, or equity of redemption in or to the property by the parties to such action, their heirs and personal representatives, and also against all persons claiming under them, or any of them, subsequent to the commencement of the action in which such judgment was rendered.' NDRC 1943, 32-1909.

On November 7, 1946, the Federal Land Bank sold the real property in question to the defendant Ferdinand C. Meidinger under a contract for deed. Under such contract the said defendant agreed to pay the Federal Land Bank of St. Paul for such premises the sum of $11,000 with a down payment of $6000 and the balance of the purchase price payable in annual installments of $500 each. The contract for deed provided that in case of inability to furnish marketable title the Federal Land Bank might refund all amounts paid thereunder and terminate the contract. The contract provided that the purchaser should be entitled to take possession of the premises on November 15, 1946. The purchaser paid to the Federal Land Bank the sum of $6000 as provided in the contract for deed and entered into possession of the premises in November, 1946, pursuant to the provisions of the contract. The defendant Meidinger produced a crop on said premises in 1947 and the rental for the premises for the farming season of 1947 based upon the crops harvested and sold according to the computations of the trial court amounted to $2021.81. The defendant Meidinger remained in possession of the premises until December 16, 1947, when he conveyed all right, title and interest in such premises to the Federal Land Bank by quitclaim deed, and the Federal...