The Gardner Hotel Co. v. Hagaman

182 N.W. 685, 47 N.D. 434, 1921 N.D. LEXIS 117

• Court: North Dakota Supreme Court
• Decided: April 4, 1921
• Status: Published

Opinions

Robinson, Ch. J.

This is a suit to quiet title to certain property adjacent to the Gardner Hotel in Fargo, North Dakota. It was tho partnership property of C. A. Bowers and J. II. Bowers. In 1917 the latter died leaving a widow, Catherine, and daughter, Helen, ten years old. The surviving partner contracted to sell the property to tho Gardner Hotel Company, and on receipt of $40,000 made to the hotel company a conveyance whereby for himself, individually and as surviving partner, he conveyed the property to the Gardner Hotel Company. Catherine Bowers joined in the deed. The surviving partner did not make to the administrator of the deceased an inventory of the partnership property, with a bond, as provided by statute. Comp. Laws, § 8771. The court gave judgment sustaining the deed as a valid conveyance and quieting title under the deed. And to remove all doubts on the matter tho case has been duly certified to this court pursuant to the statute.

The question is on the power of the surviving partner to sell and convey the partnership property regardless of any inventory or bond, and on the jurisdiction of the court to quiet title. Doubtless the heirs of the deceased might have obtained an order from the probate court requiring the filing of an inventory and bond, but the surviving partner is so amply responsible and so far above suspicion that the filing of a bond and inventory would bo an idle act. It would have made expense for no purpose. And such filing is not made a condition precedent to the power to sell and convey the partnership property of the vesting of title in the surviving partner.

By statute, “on the death of a partner the surviving partners succeed to all the partnership property, whether real or personal, in trust for the purpose of liquidation, even though the deceased was appointed by agreement sole liquidator; and the interest of the deceased in the ultimate distribution of the partnership assets passes to those who succeed to his other personal property.” Comp. Laws, § G425. The term “other personal property” indicates that the partnership assets are classed as personal property. The statute contemplates no procedure in probate. It vests in tfie surviving partner the title to all partnership property in trust for the purpose of liquidation, — for the purpose of selling the property, paying the debts, winding up and closing the affairs of the partnership. When that is done the interest of the deceased in the distribution of the partnership assets passes to tbe heirs tbe same as “other personal property.” On the plain words of the statute it is entirely clear that the surviving partner had full power to sell and convey tbe property in question. His deed gives a good title to his own and to the partnership estate. There is no good reason for reviewing the numerous authorities cited by counsel.

Objection is made to the jurisdiction of tbe court on the ground tbat this is a probate matter, in which tbe Constitution gives to the county court exclusive original jurisdiction. Constitution, § 111. The answer is that the liquidation of a partnership estate is not a probate matter. County courts have no jurisdiction • of actions to quiet title, and in such actions the district courts have original jurisdiction. The district court, with few exceptions, has original jurisdiction of all eases, both at law and in equity. Const. § ■ 103. In tbe district court actions to quiet title and determine adverse claims to real estate are a common and every-day occurrence. By statute any person having an estate or interest in land may maintain an action to quiet his title against any person claiming an adverse estate or interest. Comp. Laws, § 8441.

“To quiet title to real property or to remove an existing cloud and to prevent a threatened cloud is an ancient and well-established head of equity cognizance.”

“The broad grounds on which equity intervenes to remove a cloud on title are the prevention of litigation, the protection of the true title and possession, and because it is the real interest of both parties and promotive of right and justice that the precise state of the title should be known if all are acting bona fide.” 32 Cyc. 1305, 1306.

Accordingly this court does bold and determine:

(1) That tbe district court has power to quiet title in the plaintiff as to any possible estate Helen Bowers may have in such real estate.

(2) Tbat the deed made by the surviving partner of Bowers Brothers apd the widow of J. II. Bowers conveyed the entire legal and equitable title to tbe property. .