Treiber v. Citizens State Bank

• Decision Date: 13 July 1999
• Docket Number: No. 980325,980325
• Citation: 598 N.W.2d 96,1999 ND 130
• Parties: Anne TREIBER, Plaintiff and Appellant, v. CITIZENS STATE BANK, Defendant and Appellant, Jack Elmer and Lori Elmer, Defendants and Appellees, Dakota Community Bank (formerly Security Bank of Hebron), Farmers Union Oil Company of Beulah, Ford Motor Credit Company, and Paw & Claw Pet Palace, Defendants.
• Court: North Dakota Supreme Court

Page 96

598 N.W.2d 96

1999 ND 130

Anne TREIBER, Plaintiff and Appellant, v. CITIZENS STATE BANK, Defendant and Appellant, Jack Elmer and Lori Elmer, Defendants and Appellees,

Dakota Community Bank (formerly Security Bank of Hebron),

Farmers Union Oil Company of Beulah, Ford Motor

Credit Company, and Paw & Claw Pet

Palace, Defendants.

No. 980325.

Supreme Court of North Dakota.

July 13, 1999.

Robert A. Keogh, Keogh Law Office, Dickinson, for plaintiff and appellant Anne Treiber.

Erik R. Johnson, Solberg, Stewart, Miller & Johnson, Fargo, for defendant and appellant Citizens State Bank.

Timothy A. Priebe, Mackoff, Kellogg, Kirby & Kloster, PC, Dickinson, for defendants and appellees.

SANDSTROM, Justice.

¶1 Anne Treiber and Citizens State Bank appealed from a summary judgment dismissing Treiber's action to partition real property. We affirm, holding partition under N.D.C.C. § 32-16-01 is available only when there are cotenants with current possessory interests in the property.

I

¶2 In 1975, Fred Treiber deeded a tract of land in Morton County to his three children, reserving a life estate to his wife, Anne Treiber. In October 1994, two of the Treiber children deeded their remainder interests to Anne Treiber. Shortly thereafter, the third child deeded her remainder interest to Jack and Lori Elmer. Thus, through the doctrine of merger, Anne Treiber held a fee simple interest in an undivided two-thirds of the property, and a life estate in the remaining one-third. The Elmers held an undivided one-third remainder interest, subject to Anne Treiber's life estate.

¶3 Anne Treiber brought this partition action under N.D.C.C. ch. 32-16 against the Elmers and various mortgage holders and lien holders. The district court granted the Elmers' motion for summary judgment, holding Treiber and the Elmers were not cotenants with rights of possession and therefore partition was unavailable under N.D.C.C. § 32-16-01. Treiber and Citizens State Bank, which held the mortgage on Treiber's interest in the property, filed separate notices of appeal from the judgment dismissing the action.

II

¶4 Although not raised by the parties, there is a potential jurisdictional problem with the Bank's attempted appeal. The right to appeal is a jurisdictional matter we will consider sua sponte. E.g., McArthur v. North Dakota Workers Compensation Bureau, 1997 ND 105, p 9, 564 N.W.2d 655.

¶5 Only a party aggrieved by a judgment or order of the district court may appeal from it to the Supreme Court. Jensen v. Zuern, 523 N.W.2d 388, 388-89 (N.D.1994); Bernhardt v. Rummel, 319 N.W.2d 159, 160 (N.D.1982); Graven v. Backus, 163 N.W.2d 320, 329 (N.D.1968). An aggrieved party is one who has some legal interest that may be enlarged or diminished by the appealed decision. Bernhardt, at 160; State ex rel. Hjelle v. Bakke, 117 N.W.2d 689, 696 (N.D.1962). The party's interest must be immediately, directly, and adversely affected, and an effect that is contingent or indirect, or that results merely in some possible, remote consequence, is insufficient. King v. Stark County, 72 N.D. 717, 719, 10 N.W.2d 877, 878 (1943).

¶6 The Bank was named as a defendant in this action. The Bank did not file any cross-claim, and the only affirmative relief it sought in its answer was, "if Plaintiff's request for partition and sale is granted, then Citizens State Bank's mortgage be paid in full from the proceeds of said sale." The judgment in this case merely dismissed the action against the Bank, and arguably did not immediately, directly, and adversely affect any legal right of the Bank. The Bank still has its mortgage against Treiber's interest in the property, just as it did before the action was brought.

¶7 Under the circumstances of this case, however, we find it unnecessary to determine whether the Bank is an aggrieved party entitled to appeal from the judgment. Because Treiber filed a timely appeal from the judgment, we have jurisdiction over her appeal and may resolve on the merits all issues raised by the parties.

¶8 The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction over Treiber's appeal under N.D. Const. art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02. Treiber's appeal was timely under N.D.R.App.P. 4(a).

III

¶9 Treiber and the Bank assert the district court erred in concluding partition is available under N.D.C.C. § 32-16-01 only if there are two or more cotenants with a current possessory interest in the property. Treiber brought the action under N.D.C.C. ch. 32-16. Section 32-16-01 delineates when partition is available:

When may be brought. When several cotenants hold and are in possession of real or personal property as partners, joint tenants, or tenants in common, in which one or more of them have an estate or inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein....

A

¶10 Section 32-16-01 dates from territorial days, and was adopted from the New York and California partition statutes. See N.D.C.C. § 32-16-01 (source note). Those statutes adopted the traditional common law rule allowing partition only if there are two or more cotenants with current possessory interests. See 1 American Law of Property § 4.92 (1952); 59A Am.Jur.2d Partition § 26 (1987). As explained in Annotation, Possessory requirements for cotenant's suit for partition, 171 A.L.R. 932, 936, 938 (1947) (footnotes omitted):

While the writ of partition could issue only in favor of a parcener under the common law of England, the remedy was extended under the statutes of 31 & 32 Hen VIII to joint tenants and tenants in common of estates of inheritance, of freehold, and for years; and the common law, as thus modified by statute, became a part of our common law and was recognized by colonial statutes. A distinctive feature of a cotenancy, however, is a unity of possession or seisin of the realty, the right of possession being an essential element of all cotenancies.

The factor of possession, or right thereto, necessary to the existence of a cotenancy, in turn became one of the prerequisites to compulsory partition, the rule being established and recognized at common law and in equity practice, as well as under statutes not inconsistent therewith, that in order to maintain an action for partition, the petitioner must have either actual or constructive possession of the land which is the subject matter of the suit.

....

In several jurisdictions the question under discussion arose under statutes, such as the one in New York, providing for partition "where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common." Such a statute being in accord with the common-law rule and equity practice, it was also held that to maintain partition thereunder it was necessary that the plaintiff be in actual or constructive possession of the premises involved.

¶11 Although this Court has never directly addressed whether current possessory interests are required under N.D.C.C. § 32-16-01, the Court has noted the common law required actual or constructive possession, and has suggested possession would be required under our statute. See Schnell v. Schnell, 346 N.W.2d 713, 715 (N.D.1984) ("Current statutory law provides that a partition is a matter of right when several cotenants are in possession of real property"); Coyle v. Due, 28 N.D. 400, 406-07, 149 N.W. 122, 124 (1914) (recognizing under common law actual or constructive possession of the premises is required).

¶12 Prior to the adoption of our partition statute by the territorial legislature in 1877, the New York statute had been interpreted to require possessory interests. See Annotation, supra, 171 A.L.R. at 938, and cases collected therein. California has similarly construed its partition statute. See, e.g., Jameson v. Hayward, 106 Cal. 682, 39 P. 1078, 1079 (Cal.1895); Geary v. De Espinosa, 51 Cal.App. 52, 196 P. 90, 91-92 (Cal.Dist.Ct.App.1921); 48 Cal. Jur. Partition § 36 (1979). As the court reasoned in Mills v. Stump, 20 Cal.App. 84, 128 P. 349, 351 (Cal.Dist.Ct.App.1912):

The object of partition is to enable the cotenants to enjoy the possession in severalty, and not to be compelled to submit to joint possession.... Hence, where possession cannot be effected as a result of the partition, there is no necessity for making it.

¶13 The court considered a factually similar case in Purdy v. Purdy, 18 A.D. 310, 46 N.Y.S. 215 (App.Div.1897), in which a husband's will granted a life estate in certain land to his wife. The court held she could not maintain an action for partition under the New York statutory provision:

The statute provides that "where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for partition." Code Civ. Proc. § 1532. This does not require an actual pedis possessio, but a present right to the possession as distinguished from a vested remainder or reversion. The plaintiff having the life estate had no joint tenant or tenant in common in possession, within the meaning of the statute.

Purdy, at 216-17.

¶14 When our statute is derived from and substantially identical to a statute from another state, the judicial decisions interpreting the foreign statute are highly persuasive. Estate of Zins v. Zins, 420 N.W.2d 729, 731 (N.D.1988); Loken v. Magrum, 380 N.W.2d 336, 339 (N.D.1986); see 2A Norman J. Singer, Sutherland Statutory Construction § 52.02 (5th ed.1992). More significantly, when a statute is adopted from another state without change, it is taken with the construction placed upon it by the courts of that state, and it is presumed the legislature intended that construction. See,...