Stevahn v. Meidinger

57 N.W.2d 1, 79 N.D. 323

• Court: North Dakota Supreme Court
• Decided: October 14, 1952
• Docket: File 7263
• Status: Published

Opinions

Christianson, J.

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 ND 710, 186 NW 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 on 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 pro: vided 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 USCA 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 $11,000.00 with a down payment of $6000.00 and the balance of the purchase price payable in annual installments of $500.00 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 $6000.00 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 Land Bank of St. Paul paid to the said defendant the sum of $6735.00, the total amount that had been paid by the defendant to said Federal Land Bank of St. Paul under said contract for deed.

The plaintiff Alvin Stevahn was inducted into the military service of the United States on November 23, 1945, and remained in such service until he was honorably discharged therefrom on February 10, 1947.

The Soldiers’ and Sailors’ Civil Belief Act of 1940 as amendfed by Congress on October 6, 1942, (50 USCA Sec 525) provided:

“The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation or order . . . nor shall any part of such period which occurs after the date of enactment of the Soldiers’ and Sailors’ Civil Relief Act Amendments of 1942 (Oct. 6, 1942) be included in computing any period now or hereafter provided by any law for the redemption'of real property sold Or forfeited to enforce any obligation, tax, or assessment.”

It is stated in the findings of fact that in the negotiations with the Federal Land Bank of St. Paul for the purchase of- the premises the defendant was informed and knew that the plaintiff “because of his being in the military service had. an extended right of redemption upon his discharge therefrom.” On December 5, 1947, the plaintiff tendered to the Federal Land Bank of St. Paul the sum of $11,505:15, the calculated amount necessary to effect redemption from said foreclosure sale. The Federal Land Bank accepted the amount tendered and on December 9, 1947, the said Bank made, executed, and' delivered to the plaintiff a deed of conveyánee of said premises.

The appellant contends that under the facts found by the trial court he was entitled to - redeem, that he has effected a redemption and- as a result became and is entitled to all -the rental for the year 1947 measured by the market value for each fourth bushel of the grain produced, the customary rental in -1947 in that locality. In support of his contention he cites NDRC 1943, 28-2411, which provides:

“The debtor under an execution or foreclosure sale of his; property shall be entitled to the possession, rents, use, and benefit of the property sold from the date of such sale until the expiration of the period of redemption.”

He asserts that after the expiration of the period provided for redemption, on October 3, 1946, he alone occupied the position of a. redemptioner, that the rights of the other heirs “to redeem had expired” and that “after October 3, 1946, they were no longer even cotenants and that possession belonged to him. alone.” . .

This contention is predicated upon an erroneous premise .and ignores certain controlling facts.

. All the' real property owned by Andreas Stevahn at the time' of his death descended immediately to his heirs subject to the' control of the county court and to the possession of any administrator appointed by that court for the.purposes of administration., NDRC 1943, 56-0103. In Thompson on Real Property it is said:

“The heirs of a deceased intestate occupy- the place of the ancestor as regards the taking of the interest in the ancestor’s property, but they receive no better right to the property than the ancestor had. The title to lands, unless otherwise devised vests eo instante upon death in the heirs of the decedent; the right of the personal representative being limited to selling the land for debts.” 5 Thompson on Real Property, Permanent ed., Sec 2418, p 135.

Under the laws of this state the surviving widow of Andreas Stevahn succeeded to a four-twelfths interest and estate in the land owned by him at the time of his death, and each of his three daughters and five sons succeeded to a one-twelfth interest and estate in such land. NDRC 1943, 56-0104.

The surviving widow and children of Andreas Stevahn became tenants in common. Johnson v. Brauch, 9 SD 116, 68 NW 173, 62 Am St Rep 857; Aberle v. Merkel, 70 ND 89, 291 NW 913; Hoffman v. Hoffman Heirs, 73 ND 637, 17 NW2d 903.

Corpus Juris says: “On the death of an owner of property intestate, the descent of the property by operation of law to the several heirs creates a tenancy in common.” 62 CJ, Sec 15, P 416.

. “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.” 62 CJ Sec 4, p 409.

“In accordance with the usual- rules of property, it is clear that 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.” 14 Am Jur Sec 63, p 131.

“Any cotenant not under a disability can effectively convey his own moiety or any fractional proportion thereof, provided he complies with the usual rules governing transfers of property.” 14 Am Jur Sec 85, p 150.

“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.” 62 CJ, p 424.

“It is a rule of general application that any 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.” 14 Am Jur Sec 23, pp 93-94.

“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 authprize a third person to do whatever he himself could have done, the limitation of. his right being that he is hound so to exercise his rights in -the property as not to interfere with the rights of his cotenant.” 62 CJ p 421.

' A corporation may become a cotenant and as such has the same rights as a natural person.- 14 Am Jur Cotenancy, Sec 18, p 89.

Upon the death of Andreas Stevahn his surviving widow and children became the owners of all the land owned by him at the time of his death. A tenancy in common was created and each of them held a distinct and several title to his or her share and no privity of estate existed between them and each such co-owner was solely and severally seized of his share. 62 CJ pp 408-409. All the land was subject to a mortgage given to and owned by the Federal Land Bank of St. Paul and the ownership of each and all of the shares of the heirs of Andreas Stevahn was subject to such mortgage.

Upon the foreclosure of the mortgage held by the.-Federal Land Bank of St. Paul the heirs of Andreas Stevahn qixd tHe grantees of the heirs that had conveyed their interests were cotenants and each of the cotenants including the plaintiff had a right to enter upon the common estate subject to the equal rights of his companions in interest with whose possession he might not interfere. 14 Am Jur Cotenancy, Sec 23, pp 93-94. Each cotenant had the right of possession and to his proportionate share of the rental for the land until the expiration of the period of redemption. NDRC 1943, 28-2411, The appellant was entitled to possession as a cotenant and to his share of" the rental''of the land as measured by his interest in the premises, but his cotenant or cotenants had equal rights and he had no right to interfere with their lawful possession or to any part of the proportionate share of the rental belonging to such cotenants. Any cotenant desiring to redeem must do so within a year after the sale. NDRC 1943, 32-1918, 28-2402. None of the cotenants redeemed and all right to redeem ceased on October 3, 1946, except as to the appellant Alvin Stevahn, and as to him the period of redemption had been extended until December 20, 1947, by the Soldiers’ and Sailors’ Civil Relief Act of 1940. 50 USCA Sec 525.

After the period allowed by the statute for redemption had expired sheriff’s deed was issued to the Federal Land Bank of St. Paul which deed vested in such bank eleven-twelfths of all "the right, title, interest and estate of said Andreas Stevahn in the land at the time the mortgage was executed and subsequently acquired by him and was “a bar to all claim, right or equity of redemption in or to the property” by all the heirs at law of said Andreas Stevahn (except Alvin Stevahn) and their personal representatives and against all persons claiming under them or any. of them subsequent to the commencement of the action 'in which the judgment was rendered pursuant to which the premises were sold. NDRC 1943, 32-1909. After such deed was executed and delivered all the heirs of Andreas Stevahn (with the sole exception of the plaintiff Alvin Stevahn) had no more interest in the premises than they would have had in case each of them had voluntarily conveyed their respective shares in the premises to another for a consideration. Barker v. More Bros., 18 ND 82, 87, 118 NW 823, 825.

The result of the sale and the conveyance to the Federal Land Bank of St. Paul by the sheriff’s deed was to vest the Federal Land Bank with fee simple title to eleven-twelfths interest in the premises, to discharge the indebtedness and lien of the mortgage and certificate of sale on the eleven-twelfths interest in the land so conveyed to the Federal Land Bank, and to reduce the amount of the indebtedness and lien of the mortgage and certificate of sale upon the remaining one-twelfth interest in the land still owned by the appellant Alvin Stevahn to one-twelfth of the amount that would have been required to redeem the whole of the premises from the foreclosure sale if the whole of the premises had been subject to redemption. The appellant Alvin Stevahn still owned a one-twelftlx interest in the land which interest was subject to the lien of the mortgage and certificate of foreclosure sale for the amount remaining due thereon after giving credit thereon for the amount which had been -discharged by the conveyance to the Federal Land Bank of the eleven-twelfth interest in the land. From the time the sheriff’s deed was executed and delivered to the Federal Land Bank on October 7, 1946, until December 9, 1947, when the Federal Land Bank sold and conveyed all its interest in the premises to the appellant Alvin Stevahn, he was the owner of a one-twelfth interest which was subject to the lien of the mortgage and the certificate of foreclosure sale, as Alvin Stevahn’s right to redeem had been extended by the Soldiers’ and Sailors’ Civil Relief Act of 1940 until December 20, 1947. This was the only interest and estate in the premises that was subject to' redemption. The interests in the land of all the heirs of Andreas. Stevahn, other than the appellant, had been conveyed to and vested in the Federal Land Bank of St. Paul. Ther bank was the owner of eleven-twelfths interest in the premises and the appellant Stevahn continued to own a one-twelfth interest. That condition continued until in November 1946 when the Federal Land Bank sold the premises to the defendant Meidinger under a contract for deed which specifically authorized the defendant Meidinger to enter into possession of the premises on November 15, 1946. Under this contract for deed the Federal Land- Bank continued to hold the legal title to the eleven-twelfths interest in the land in trust for Meidinger, the vendee in the contract, to the extent of his payments and he became the beneficial owner to the extent of the payments made by him. Woodward v. McCollum, 16 ND 42, 49-50, 111 NW 623, 626; Salzer Lbr. Co. v. Claflin, 16 ND 601, 605, 113 NW 1036, 1037; 55 Am Jur Vendor and Purchaser, Sections 355 and 356, pp 781-783.

The appellant was a successor in interest of Andreas Stevahn to the real property owned by him at the time of his death, but he was not the only successor in interest. He succeeded to a one-twelfth interest only and his mother and brothers and sisters succeeded to the other eleven-twelfths' interest. The heirs of Andreas Stevahn became tenants in common, and each of the cotenants had the right to the use, benefit and possession of the common property subject, however, to the equal rights of each of his companions in interest with whose rights he might not interfere. 14 Am Jur Cotenancy, Sec 23, pp 93-94; 62 CJ p 421. At all times from the death of Andreas Stevahn until the conveyance by the Federal Land Bank of St. Paul of all its right, title and interest in the premises to the appellant Stevahn on December 9, 1947, the appellant owned only a one-twelfth interest in the premises; and during all this time his cotenant and cotenants each had equal right to the possession and use of the premises.

The defendant Meidinger entered into possession of the premises under the contract for deed with the Federal Land Bank and planted, harvested and threshed a crop on the lands in question during the farming season of 1947. During all the time that the crop was planted, harvested, threshed and marketed the plaintiff: owned a one-twelfth interest in the land and no more; the Federal Land Bank was the legal owner of eleven-twelfths interest therein and the defendant Meidinger under the contract for deed had the right to enter upon the land and plant, harvest, thresh and market the crop as was done. On December 9, 1947, the Federal Land Bank for a valuable consideration made, executed and delivered to the appellant Alvin Stevahn a deed of conveyance to the premises. As a result the tenancy in common wás-terminated (62 CJ Sec 18, p 418) and the appellant Alvin Stevahn became the owner of the entire tract in fee simple. Prior to the conveyance to him by the Federal Land Bank of St. Paul of all its interest, right and title in the eleven-twelfths interest in the land the appellant Stevahn owned only a one-twelfth interest in the premises.

Plaintiff’s share in the rental for the land during the farming season of 1947 was proportionate to and measured by his interest in the land. In other words, plaintiff was not entitled to nicire than a one-twelfth share of such rental, and that is what the trial court awarded to him. The judgment appealed from is affirmed.

Morris, C. J., and Grimson, Sati-ire and Burke, JJ., concur.