author: BURKE, Chief Justice.

text:
    NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Plaintiff and Appellant, v. CITY OF GRAND FORKS, a Municipal Corporation, et al., Defendants and Respondents.
    No. 7446.
    Supreme Court of North Dakota.
    Sept. 23, 1955.
    Rehearing Denied Dec. 19, 1955.

      Conmy & Conmy, Fargo, for plaintiff and appellant.
    Harold D. Shaft and Gordon Caldis, Grand Forks, for defendants and respondents.
   BURKE, Chief Justice.

This appeal is from a judgment rendered in an action to'enjoin the collection of certain special assessments levied against plaintiff’s property in the City • of Grand Forks. Judgment for the dismissal of the action was entered in the district court. Plaintiff has appealed from the judgment and demanded a trial de novo in this court.

The project for which the assessments were levied was a parking lot to provide off street parking facilities for the -principal business district of Grand Forks. The city council approved the project, adopted a resolution of necessity with respect thereto, provided that twenty percent of the cost should be paid by a general tax upon the whole city and that eighty percent of the cost should be levied as a special assessment and established a special assessment district within which the. special assessments were to be levied.

Thereafter the special assessment commission inspected the property to be assessed. They agreed upon a method of determining the benefits which the property to be assessed would derive from the project and upon a plan for levying the special assessments. In the case of each property description the benefits determined were in excess of the assessment levied. The work of the special assessment commission was ratified by the city council and the assessments were extended upon the records.

Plaintiff has challenged the assessments levied against its property upon three principal grounds. Firstly, it urges that Sections 40-2201 and 40-2209, 1949 Supp. to NDRC 1943 are unconstitutional to the extent that they authorize the payment for parking lots by special assessment. It contends that such authorization when exercised takes property without compensation and without due process of law in violation of Sections 1, 13, 20 and 22 of the Constitution of the State of North Dakota and the 14th Amendment of the Constitution of the United States. Secondly, appellant says that the special assessments are void because its property received no benefits whatsoever from the parking lot improvement. Thirdly, it asserts that the assessments were made by an arbitrary inflexible rule which was so lacking in equity and equality that it amounted to constructive fraud.

The constitutional question is general in nature and resolves into the question of whether in any circumstances the special assessment device can be used to defray the cost of a public off street parking lot without doing violence to the Constitution. An affirmative answer to this question depends upon whether property, in the vicinity of the.parking lot, which has been constituted a special assessment district, derives a special benefit from the improvement in addition to the general benefit in which the whole city shares.

We have no doubt but that property in the vicinity of a parking lot derives special benefit therefrom. Particularly is this true in the case of a congested business district which had its development before automobiles and trucks had become the great convenience and problem that they are today. In recent years there has been a trend toward a decentralization, evidenced by the removal of many businesses from congested areas to outlying districts where parking lots for customers were available. It is generally acknowledged and logically so, that the provision of parking space in the vicinity of a congested mercantile area, by making it conveniently accessible to trade, tends to reverse this trend and thus stabilize business in the area. This is a special benefit sufficient to justify special assessments. City of Whittier v. Dixon, 24 Cal.2d 664, 151 P.2d 5, 153 A.L.R. 956; Ambassador Management Corp. v. Incorporated Village of Hempstead, 186 Misc. 74, 58 N.Y.S.2d 880, Id., 270 App.Div. 898, 62 N.Y.S.2d 165, appeal dismissed 296 N.Y. 666, 69 N.E.2d 819, certiorari denied 330 U.S. 835, 67 S.Ct. 971, 91 L.Ed. 1282.

The question of whether the benefit to each lot or parcel of land in the district has been determined with sufficient accuracy to avoid the constitutional prohibition against taking property without compensation or due process of law is one which must be determined according to the means used and the results achieved in each case.

In this state, however, special assessments must conform to a statutory as well as a constitutional standard. The applicable statute is Section 40-2307, 1949 Supp. to NDRC 1943. It reads as follows:

“Whenever the commission is re- ■ quired to make any special assessment-under the provisions of this chapter, the members thereof personally shall inspect any and all lots and parcels of land which may be subject to such special assessment and shall determine from such inspection the particular lots and parcels of land which, in the opinion of the commission, will be especially benefited by the construction of the work for which the assessment is to be made. The commission shall determine the amount in which each of the lots and parcels of land will be especially benefited by the construction of the work for which such special assessment is to be made, and shall assess against each of such lots and parcels of land such sum, not exceeding the benefits, as shall be necessary to pay its just proportion of the total cost of such work, or of the part thereof which is to be paid by special assessment * *

Since compliance with the foregoing statutory requirements would undoubtedly remove all constitutional objections we shall confine our consideration to the ques.tion of whether in the instant case there has been compliance with the statute with respect to the assessments made upon plaintiff’s property.

To conform to the statute, special assessments must meet three requirements. The special benefit accruing to each lot or parcel of land from the improvement must be determined. The special assessment levied against each lot must be limited to its just proportion of the total cost of the improvement. The assessment against any lot or parcel of land must not exceed the benefit which has been determined to have accrued thereto. The method used and the procedure followed in spreading the special assessment in this case are described in the testimony of Mr. Olaf Thorson, Chairman of the Special Assessment Commission. This testimony is as follows:

“Q. What methods of spreading the assessments did you consider and discuss? A. To begin with, I think- it was my opinion, and I also think of other members of the commission, that some method of zoning the district would be possible.
“Q. By that you mean some arrangement whereby certain areas would be assessed at a higher figure than other areas ? A. That is correct.
“Q. You have upon occasion worked out special assessments on what you call a unit basis, assigning units of value to the various properties? A. Yes, we have.
“Q. Did you attempt to work out such a thing on this?
******
■ “A. Yes, we did. In fact, we probably spent at least two' evenings trying to formulate a plan on that basis. * * *
“Q. Any other basis that you have in mind that you did discuss? A. I might explain somewhat the thinking, if I may.
“Q. Yes? A. We thought perhaps that being that the parking lot was located somewhat to the side * ' * that perhaps a method of zoning so that the properties located more closely to the parking lot should bear a larger part of the cost and by reason of their proximity to the parking lot be benefited more. We tried to zone. We found among other things, that the area closest to the parking lot at the present time, at any rate, is not occupied commercially except by the Northern Pacific Railway and its tracks. We, as a matter of fact, could not see that those properties were more particularly benefited or that they would probably be more benefited in the future than, for instance, a piece of property two blocks away. * * * There was no basis we could arrive at for splitting the district. * * * So we had to abandon the zoning idea. We could not figure out any system that seemed at all equitable. Another thought we had on zoning was to try and allot to the blocks having the larger and more commercial buildings a higher assessment than to those that were not so occupied. We came to the conclusion that we could not speculate as to the future on what buildings might be on any particular lot. * * *
“Q. To summarize what you have just been saying, you members of the special assessment commission in your session discussed thoroughly every possible way you could think of to fairly spread this assessment, is that correct? A. Yes, we did.
“Q. And what was your ultimate determination? A. We determined to spread the assessment on a front “footage basis, with a few minor alterations * * *. It seemed to us in the commercial-and business district that frontage is really what counts * *

The benefits were determined and the assessment was spread upon a foot frontage basis with the result that, with a few exceptions, the assessment was at the rate of $6.69712 per front foot for each lot, without regard ter its location, character, present use or adaptability for future use. At what rate per front foot benefits were determined is not shown by the récord. There is only the statement the benefits exceeded the assessment. We think it may be presumed from the record that the amount necessary to levy against each front foot in order to raise the amount of the cost of the parking lot was first computed and that the benefits were thereafter determined at a slightly greater sum per front foot.

Where, as in this state, special assessments must be apportioned according to benefits the foot frontage method is only acceptable when it achieves that result, It can only be used in cases where benefits conferred upon the assessed property are equal and uniform. Morse v. City of Omaha, 67 Neb. 426, 93 N.W. 734; Village of Winside v. Brune, 133 Neb. 80, 274 N.W. 212; Thacker v. Paving Improvement District No. 5 of Mena, 182 Ark. 368, 31 S.W.2d 758; In re Improvement of Rockwood Boulevard (Sperry v. City of Spokane), 170 Wash. 64, 15 P.2d 652; Harlan v. Town of Bel Air, 178 Md. 260, 13 A.2d 370; Rood v. City of Ames, 244 Iowa 1138, 60 N.W.2d 227; White v. City of Tacoma, C.C., 109 F. 32.

In Minneapolis, St. P. & S. S. M. R. Co. v. City of Minot, 51 N.D. 313, 199 N.W. 875, 37 A.L.R. 211, this court sustained a special assessment for a water main which was made upon a foot frontage basis and where the, special assessment commission did not consider the character of the improvements upon the lots or the use that was being made of them. In doing so. we said, 51 N.D. 321, 199 N.W. 877:

“Practical men, acting in the capacity of special assessment commissioners, will necessarily find various properties, which are uniform in size and which are similarly situated with reference to an improvement, to be benefited in equal degree, with the result that there will be an equal assessment of benefits.”

Without reaffirming the foregoing statement, we think it apparent that while the view stated may apply to special assessments for such improvements as, sidewalks, pavements, water and sewer which are improvements upon which the assessed property actually abuts for the distance of its foot frontage, it cannot apply to a special assessment for a parking lot. The reason for this is that the principal special benefit conferred upon a lot by the establishment of a parking lot in its vicinity is proportionate to need that the business conducted thereon has for a parking lot. The parking lot encourages members of the public to shop in a congested district by providing a place where they can leave their cars within easy walking distance of any place within the district. For the same reason it encourages attendance at theaters, and the rental of apartments, professional offices and hotel rooms in the district. A parking lot may have several objectives but in so far as special benefits are concerned its objective is to maintain or increase the business done in the district and those who share in the business it brings are those who reap the major share of the special benefits. Special assessments for parking lots which do not give effect to substantial and material differences in the use’of the property assessed are therefore not apportioned according to benefits as required by statute.

The question then is, did the use of the foot frontage method' in this case result in more than a just proportion of the, cost of the improvement being assessed against the property of the plaintiff.

We shall give consideration, first, to the property of the plaintiff in block 38 and in the north half of block 16. This is vacant property and part of the low lying land adjoining the Red River. It is subject to flooding in times of high water. Prior to 1947, there were several businesses located upon similar land in the vicinity but after the floods of 1947, 1948 and 1950 these businesses moved out and found new locations. At the present time the only businesses located on land similarly situated are a bottled gas storage plant and a single gasoline storage tank. We think it clear that the parking lot is of no present benefit whatever to these lots. As to their possible future use defendants’ witnesses testified that this land might be used for a parking lot, trailer court, or for storing scrap iron. We cannot see how a parking lot can confer benefits upon lots which have no present use and no reasonable possibility of future use for purposes other than those suggested by the witnesses.

In the north half of block 17 plaintiff owns 12 'twenty-five foot lots which were all assessed on the foot frontage* basis according to the standard adopted. There are no improvements upon these lots except the tracks of the plaintiff. A strip 125 feet long extending into the lots from about the center of their southern boundary is used as a parking lot. Another section of these lots between the tracks is leased to a lumber company which has sublet it to an automobile dealer for the storage of used cars. According to the testimony there is no business of any kind conducted on these lots. We therefore see no present special benefit accruing to them from the parking lot improvement. It is said, however, that the assessment is justified by the possible future'use that- may 'be made of this property. It is argued that if businesses are established on this property at some future time, it would be unjust to have it exempt from the assessment. We think this argument is of little weight when applied to property which has been committed to a definite use by a substantial investment. Before the use of such property can be changed the investment therein may have to be sacrificed and a new investment made. - Certainly that is true in the case of the lots under consideration. These lots have been occupied by railroad tracks for sixty years. It is highly speculative to assume that the railway company will now tear them up and build business buildings on the land. See Rood v. City of Ames, 244 Iowa 1138, 60 N.W.2d 227. To adopt the theory contended for would be to say that in order to prevent a future wholly speculative injustice, we must approve one which is both immediate and certain.

The railway company’s land in the north half of block 24 is occupied by a wholesale grocery business, spur tracks, loading platforms and a parking space 300 feet long and wide enough to permit cars to park diagonally. The business buildings contain the offices, warehouse and garage of the grocery company. The garage has room for five trucks and adjoins the warehouse. All loading of the trucks is done in the garage. While the trial court found as a fact, that- the parking facilities in this block are not sufficient to meet the needs of the wholesale grocery company, this finding was contrary to the testimony of plaintiff’s witnesses who said it was sufficient to take care of the parking needs of both the employees and customers of the wholesale grocery and was used to some extent by the public. It is clear, however, that a wholesale grocery, which in the main goes to its customers, has less need for and derives less benefit from a public parking lot than retail merchants whose customers must come to them and that the need for a parking lot and the benefit derived from it are diminished to the extent that the portion of the lots assessed, devoted to parking,, fills that need. The result, of the method of assessment used, is that this half block with one business located thereon, and which provides most if not all of its own need for parking, was assessed at practically the same rate per front foot (Some adjustment was made because the lots were only 110 ft. long) as blocks in the more congested part of the district where there were many retail businesses and no parking facilities whatever. We think this result burdens the north half of block 24 with more than its proportionate share of the special assessment.

. We next consider the lots of the plaintiff in the south half of block nine and the south half of block sixteen. These lots are occupied by railway company’s station and freight house and a small floral shop. The assessed lots front on Third Street for a distances of 400 ft. and are assessed for $2,676.64 or at the same rate per front foot as the well built up blocks containing such businesses as hotels, professional office buildings, theaters and retail stores. The railroad station and freight house are built back from the street line a distance of from 20 to 25 feet so that access to them by truck and car is available on the property of the railway. In addition there is a parking lot at the rear of the station sufficient to take care of the needs of the employees of the railway company. The railway of the plaintiff at Grand Forks is a branch line and on the average'nine to ten passengers get on and off the trains there each day. The freight business is largely car load lot business as most of the less than car load lot business is handled by commercial truckers. To assess this property at a higher sum than the block immediately south of it, which was assessed $2,007.54 and which is occupied by a three story brick building with a supermarket on the ground floor, a three story brick building with a furniture store on the ground floor, a three story brick building with an automobile salesroom on the ground floor, and a six story hotel building with a dry cleaners pick-up and delivery station, an appliance shop, liquor store, fur shop, beauty shop, barber shop, cafe and bar on the ground floor and which has no facilities for parking whatever, we think is so clearly disproportionate that it needs no further demonstration.

Plaintiff has also challenged the assessment of certain lots in block thirty-six. Plaintiff has no interest of record in these lots although two of its spur track cross their east end. The lots are assessed in the name of Robertson Lumber Company and there appears to be no liability whatever upon the railway company for the payment of these assessments. It is therefore in no position to challenge them.

We have concluded that the use of the foot frontage method of assessment in this case has resulted in assessing against the plaintiff’s property in blocks 9, 16, 17, 24 and 38 more than its proportionate share of the cost of the improvement and that plaintiff is entitled to the injunction prayed for in its complaint with respect to these assessments.

The judgment of the district court is reversed and the case remanded for the entry» of judgment in accordance with this opinion.

GRIMSON, JOHNSON, SATHRE and MORRIS, JJ., concur.


source: Caselaw Access Project

author: TEIGEN, District Judge.

license: Public Domain

text:
    Augusta WITTROCK, Raymond Wittrock, Zyril Wittrock, Louis Wittrock, Plaintiffs and Appellants, v. George WEISZ, Thomas Stevens, Marie Stevens, Williams County, North Dakota, a Public Corporation, A. W. Wang, as County Auditor of Williams County, North Dakota, A. M. Fruh, The Superior Oil Company, a Foreign Corporation, Stanolind Oil and Gas Company, a Foreign Corporation, W. B. Scott, and all other persons unknown, having or claiming to have any right, title, interest in or to, or lien or encumbrance upon the premises described in the Complaint, Defendants and Respondents.
    No. 7497.
    Supreme Court of North Dakota.
    Oct. 25, 1955.
    Rehearing Denied Dec. 19, 1955.

      Hyland, Foster & Conmy, Bismarck, for plaintiffs and appellants.
    E. C. Rudolph, Ray, for George Weisz, defendant and respondent. Rausch & Chapman. Bismarck, of counsel.
   TEIGEN, District Judge.

The plaintiffs, Augusta Wittrock, Raymond Wittrock, Zyril Wittrock and Louis Wittrock, record title owners, seek to quiet title to the Ey2NWy4, Wy2NEy4 in Section 14, Township 156, North of Range 97, West of the Fifth Principal Meridian, being m Williams County, North Dakota, to which land Williams County took tax deed on March 1, 1940 for unpaid taxes for the year 1930 and which land was subsequently sold to the answering defendant, George Weisz, on contract dated November 19, 1943 and executed February 16, 1944, and followed by county deed dated June 9, 1947.

The plaintiffs commenced this action in September of 1952. The defendant George Weisz, was the lessee of the land from 1923 to 1940 leasing from the plaintiffs. John G. Weisz, son of the defendant, George Weisz, leased the land from the County for the years 1940, 1941 and 1942, during all of which time he lived with his father the defendant, George Weisz, and during which time they owned machinery together and worked together.

On May 24, 1939 the County Auditor of Williams County issued a notice of expiration of the period of redemption based on the sale held December 8, 1931 to the County of the 1930 taxes. The notice erroneously named “Louis B. Wittrock, (heirs)” as the record title owner instead of Augusta Wittrock, Raymond Wittrock, Zyril Wittrock and Louis Wittrock, who were in fact the record title owners. Service of this notice appears to have been made in accordance with Chapter 235 of the Session Laws of North Dakota for 1939 with this exception, in the notice published in the official newspaper of Williams County the name of the record title owner was stated as being “Louis B. Wittrock (heirs)”. Notices were also mailed by registered mail addressed to each of the plaintiffs giving the postoffice address of Ray, North Dakota, and each envelope contained a copy of the notice of the expiration of the period of redemption naming “Louis B. Wittrock (heirs)” as the record title owners. However, all of the mailed notices were returned to the County Auditor by the post-office department marked “unclaimed” and' “unknown” and were never received by any of the addressees. Tax deed dated March 1, 1940 was issued to the County of Williams.

The publication ■ of the notice of the expiration of the period of redemption is for the protection and benefit of all persons who may have an interest in the property about to be sold. The formal notice as prescribed by the- statute recites as follows “Opposite each description of real estate appears the name of the record title owner thereof as it appears by the records in the office of the Register of Deeds of such County. * * * ” (Emphasis supplied.) As provided by statute, Subsection, (a), Chapter '235 of the Session Laws of North Dakota for 1939, the County Auditor of Williams County did request and did obtain from the Register of -Deeds and the Clerk of Court a certified list giving the names of all persons who appear to be interested as owners, mortgagors, lienholders or otherwise, in such real estate, but the County Auditor, it is obvious from the certificate, an exhibit in this case, misunderstood or did not follow the information placed thereon by the Register of' Deeds. A final decree of distribution in the matter of -the estate of Louis B. Wittrock, who died in 1914, was entered by thé County Court dated August 28, 1916 decreeing the. land in question to the plaintiffs and a certified copy thereof was recorded in the office of the Register of Deeds on September -19, 1916 in Book 45 of Deéds on page 458. The law' in force at that time, being Chapter 252 of the Session Laws of North Dakota for 1915 provided a final decree of distribution could be recorded without regard to whether or. not the real- estate taxes were paid and further providing that only a deed or patent was required to carry thereon the’ County Auditor's certificate relative to taxes. Therefore it is logical to assume that there was rio record made of the transfer in the office of the County Auditor at the time the final decree of distribution was placed on record. When the certificate of the Register Of Deeds was obtained by the County Auditor on October 22, 1938, as stated above, it was either misinterpreted or not followed by that office in the preparation of the notice of the expiration of the period of redemption. It is apparent from the instrument itself that the Register of Deeds did in fact state thereon the names of the record title owners, although because of lack of room on the printed form used for that purpose, the Register of Deeds placed the names of the record title owners under the heading printed thereon “mortgagors and lienhold-ers”, he took the precaution of writing under those names “No mtg.”, meaning no mortgages. It is therefore apparent to the Court that the County Auditor in setting up his notice of expriation of the period of redemption did not follow the source of the information prescribed by statute in obtaining the names of the record title owners and therefore there was not sufficient compliance with the statute. Thus the property being proceeded against was not identified by the published name of the record title owners. The statute requiring notice of the expiration of the period of redemption must be strictly complied with in order to terminate the owners right to redeem. Knowlton v. Coye, 76 N.D. 478, 37 N.W.2d 343; Messer v. Henlein, 72 N.D. 63, 4 N.W.2d 587. Valid tax titles can be acquired only after full compliance with the provisions of the law intended for the protection of those having the right to redeem. State ex rel. State Bank of Streeter v. Weiler, 67 N.D. 593, 275 N.W. 67; Knowlton v. Coye, supra. The insertion in the notice of the expiration of the period of redemption — published and mailed but -not received — of the wrong name as that of the record title owners is fatal to the validity of the notice. Knowlton v. Coye, supra. The certificate of the Register of Deeds also stated following the names of the record title owners set forth thereon “No address”. However, the County Auditor took it upon himself to mail registered notices . of the expiration of the period of redemption to them at Ray, North Dakota. The record does not disclose what, if any, investigation the County Auditor conducted to obtain those addresses. It is clear from the record that Ray, North Dakota was not the address of any of the record title owners at that time and all of the notices were returned to the County Auditor. The Auditor was not required by the statute to do this and efforts on his part to give further notice in a manner not prescribed by the statute in absence of showing that the owners were misled thereby was of no effect. Buman v. Sturn, 73 N.D. 561, 16 N.W.2d 837.

This Court has held on many occasions that a tax deed issued without strict compliance with the statutory requirements as to the service of the notice of the expiration of the period of redemption is void. Messer v. Henlein, 72 N.D. 63, 4 N.W.2d 587; Blakemore v. Cooper, 15 N.D. 5, 106 N.W. 566, 4 L.R.A.,N.S., 1074, 125 Am.St. Rep. 574; Davidson v. Kepner, 37 N.D. 198, 163 N.W. 831; Baird v. Zahl, 58 N.D. 388, 226 N.W. 549; Biberdorf v. Juhnke, 59 N.D. 1, 228 N.W. 233.

In Cruser v. Williams, 13 N.D. 284, 100 N.W. 721, this Court said:

“The redemption period does not terminate, or the certificate of sale mature, or title pass, until the statutory notice of the expiration of redemption has been given.”

It is thus clear that the issuance of a tax deed to Williams County of the property here in suit did not operate to cut off plaintiffs’ right of redemption nor vest title in the county. It also follows that the defendant acquired no title to the property from his grantor who could not convey that which it did not possess.

The defendant, George Weisz, in his answer to the plaintiffs’ complaint alleges that plaintiffs have paid no real estate taxes assessed against the land since 1930 and that in the fall of 1940 the plaintiffs wholly abandoned said land and the right to recover and all remedies were barred by a lapse of time and by the statute of limitations which had run for more than ten years prior to the commencement of this action and further that they, the plaintiffs, are guilty of laches. The trial court held that the residuary statute of limitations, Section 28-0122 of the NDRC of 1943, is applicable and that the defendant, George Weisz, and his grantor Williams County had held the land adversely for more than ten years before the commencement of this action, and the, plaintiffs’ cause of action had accrued more than ten years before action was commenced, and the plaintiffs were therefore barred from asserting their claims against the defendant, George Weisz. With this we cannot agree. Williams County took tax deed on March 1, 1940 and on November 19, 1943 entered into a contract for the sale of the land to the defendant, George Weisz. The action to quiet title was commenced in September of 1952.

The residuary statute of limitations, Section 28-0122 of the NDRC of 1943 states:

“An action for relief not otherwise provided for must be commenced within ten years after the cause of action shall have accrued.”

To determine whether or not that statute applies it -⅛ necessary to determine whether or not the county after taking tax deed and before giving notice of sale held adversely to the plaintiffs. We do not believe it did. Since the County on March 1, 1940 took tax deed, which we find was valid on its face, to these lands there have consistently been in force certain laws with additional privileges granted by the legislature as a matter of grace, in that these laws provided that the former owner and others mentioned therein, should during all of the time that the County held title under a deed valid on its face, have a right to repurchase the land in the various ways provided therein. See 1939 Session Laws, Chapter 238; 1941 Session Laws, Chapter 286, subsections 18 and 19; 57-2818 and 57-2819, NDRC of 1943. These rights are valuable ones and cannot be ignored. Knowlton v. Coye, supra. The former owner, or others as mentioned therein, have the privilege, in the various ways as provided for, to come in and repurchase lands forfeited to the county under tax. deed proceedings so long as the tax title thereto remains in the County, and further provides that their rights are not cut off when the county desires to sell said lands at private sale until the county gives 30 days written notice to the former owner of its intention to sell and that during said 30-day period the right to repurchase continues to- their benefit. This right is inconsistent with adversé possession.

The rule is elementary that possession to be adverse, must not only be under claim of right, but hostile to and inconsistent with the possession, or right' of possession of the true owner. The owner of -lands in question had a right-to repurchase them at any time while the county had-possession thereof and before the 30-day notice was given. Therefore possession in the County from March 1, 1940 to November 16, 1943, being the date 30 days after notice of intention to sell was given, was not adverse but subject to and consistent with the right of the plaintiff.

A situation analogous to this is found in the states where possession is permitted under tax sale certificate with a redemption period — and the Courts have almost unanimously held that possession under tax sale certificate during redemption period cannot be adverse and upon the same ground, viz., that such possession is in 'no manner hostile to and inconsistent with possession of the owner. Salt Lake Investment Co. v. Fox, 32 Utah 301, 90 P. 564, 13 L.R.A.,N.S., 627.

“Possession under a tax deed will not be considered adverse under a general statute of limitations until expiration of the period allowed for redemption.” 2 C.J.S., Adverse Possession, § 113, p. 664; O’Hanlon v. Morrison, Tex.Civ.App., 187 S.W. 692.
“A statute providing for the length of time during which an adverse possession must be maintained so that it may ripen into title begins to run at the time the possession of the claimant becomes adverse to that of the owner. This, as a rule, is the time of entry; but where the original entry is in subordination to the title of the true own- ■ er, the possession so taken, only becomes adverse when the claimant sets up title in himself, and.the running of the statute must date from that time. So, where possession is taken under certain tax and judicial sales, it can only become adverse upon the expiration of the time during which the former owner might have redeemed the property. Like principles prevail in equity.” (Emphasis supplied.) 1 Am. Jur. Section 161, page 884.
“To render possession adverse, it must not only be actual, but also open, continuous, notorious, distinct and hostile, and of such a character as to unmistakably indicate an assertion of claim of ownership by the occupant.” Enderlin Inv. Co. v. Nordhagen, 18 N.D. 517, 123 N.W. 390.

Under the law in effect the County in possession under tax deed valid on its face is not adverse to the former record owner.

It is' the essence of the statute of limitations that time begins to run under them as to causes of action only after the right to prosecute them to a successful conclusion has fully accrued. 34 Am.Jur. page 91, Section 113.

Under our laws as they existed from March 1, 1940 to November 16, 1943, the period of time in question, the plaintiffs as former owners could repurchase whenever they had the ability or desire to do so. The county during that period of time held the land in its name but subject to the right or privilege of the former owner to repurchase, and it was not until the 30 days notice had expired that the. county was relieved of its statutory obligation to convey the land to the former owner upon his compliance with the statute. A former owner of land forfeited to the county on tax deed proceedings is not subject to the gunning of a statute of limitations against him when our law provides him with every right to reacquire possession of those lands by repurchase, at even a lower cost to him in some cases.

The possession of the county under a tax deed valid on its face is not adverse, but it is subject at all times.to the former owner’s right to repurchase. The statutory right to repurchase while the county ⅛ in possession is a law of property, and to perfect the right requires no action at law or equity, but merely a tender of money.

Considerable emphasis is placed on the case of Nash v. Northwest Land Co., 15 N.D. 566, 108 N.W. 792, 795, by respondents’ counsel. An examination of that case, however, reveals reasoning used by the Court is not inconsistent with the holding of this case to the effect that so long as the tax title by deed valid on its face remains in the county, the former owner and others named in the statute shall have the right of repurchase as provided by law, the statute of limitations does not run against the former owner’s remedies; when the Court quotes with approval, in that case as follows :

“So long as the mortgagee acknowledges or recognizes the mortgagor’s right to the land, the statute of limitations does not run against the latter’s remedies. McPherson v. Hayward, 81 Me. 329, 17 A. 164; Waldo v. Rice, 14 Wis. 286.”

And again when it is stated in the opinion:

“Of course, where the mortgagee is permitted to take possession under an agreement on his part to hold in subjection to the mortgagor’s right, such possession is not deemed adverse so as to set the statute of limitations in motion against the mortgagor until the mortgagee distinctly disavows his obli- ' gations as such, and notice thereof is brought home to the mortgagor.”

We believe these holdings are applicable to the instant case because the County on taking possession of the land on a tax deed holds subject to the statutory right of repurchase.

For the reasons stated in this opinion it follows that .a cause of action does not accrue until the county gives 30 days notice that the property is sold and that the count}? ■is holding the sale in abeyance for 30 days to give-the. former owners an opportunity to repurchase.

Léss than ten -years have passed between the expiration of the 30-day notice given by the County on October 16, 1943 of its intention to sell the lands, and the commencement of the present action in September of 1952, so it is therefore unnecessary for us to determine whether or not the residuary statute of limitations, Section 28-0122 of the NDRC of 1943 applies.

As to the respondents’ claim that the plaintiffs are guilty of laches, we find nothing in the plaintiffs’ inaction that worked to the disadvantage of the defendant Weisz..

“Laches does not arise from delay or lapse of time alone, but party against whom laches in asserting title to realty is sought to be invoked must be actually or presumptively aware of his rights and must fail to assert them against party who in’ good faith permitted his position to become so changed that he could not be restored to his former state.” Grandin v. Gardiner, N.D., 63 N.W.2d 128.

This principle has been applied in other tax cases in this state. Werner v. Werner, 74 N.D. 565, 23 N.W.2d 757; Sailer v. Mercer County, 75 N.D. 123, 26 N.W.2d 137; Morehouse, for Use and Benefit of Sailer v. Paulson, 75 N.D. 525, 28 N.W.2d 608; Star v. Norsteby, 75 N.D. 563, 30 N.W.2d 718; Loy, for Use and Benefit of Union Securities Co. v. Kessler, 76 N.D. 738, 39 N.W.2d 260—and other cases—Gronna v. Goldammer, 26 N.D. 122, 143 N.W. 394, Ann.Cas.1916A, 165; Dakota Trust Co. v. Headland, 57 N.D. 810, 224 N.W. 220; Commercial Credit Corp. v. Dassenko, 77 N.D. 412, 43 N.W.2d 299. See also 19 Am.Jur., Equity, Sec. 501; 30 C.J.S., Equity, § 116.

The judgment appealed from is reversed and the casé’ remanded for further proceedings consistent' herewith. ’

BURKE, C. J., and GRIMSON, SATH-RE and MORRIS, JTJ., concur.

JOHNSON, J., did not participate, Hon. OBERT C. TEIGEN, Judge of Second Judicial District, sitting in his stead.


author: JOHNSON, Judge.

text:
    Lena FRANDSON, Plaintiff and Appellant, v. M. S. CASEY; the unknown heirs of Anna M. Beatz, deceased; Naomi Stenzel; Oralie Lorenz; Helen Jackson; Howard Hudson; Myrtle Hudson; the unknown heirs of George W. Hudson, deceased; State Bank of Ross, North Dakota, a corporation; Joseph Langer; F. H. Gaulke; the unknown heirs of Agnes A. Wood, deceased; T. T. Lode; Roy E. Muck; the unknown heirs of Mary E. Muck, deceased; Louisa Muck; Gerald Muck; Doris Muck; the unknown heirs of James F. Muck, deceased; the unknown heirs of J. E. Smith, deceased; and all other persons unknown claiming any estate, or interest in, or lien, or encumbrance upon the land described in the complaint whether as heirs, devisees, legatees, or personal representatives of Anna M. Beatz, deceased; George W. Hudson, deceased; Agnes A. Wood, deceased; Mary E. Muck, deceased; James F. Muck, deceased; and J. E. Smith, deceased; or otherwise, Defendants, and Howard Hudson, Myrtle Hudson, Oralie Lorenz, Naomi Stenzel and Helen Jackson, Defendants and Respondents.
    No. 7523.
    Supreme Court of North Dakota.
    Dec. 5, 1955.
    Rehearing Denied Dec. 19, 1955.

      Q. R. Schulte, Stanley, for plaintiff and ;appellant.
    C. D. Aaker, Minot, for defendants and respondents.
   JOHNSON, Judge.

This is an action to quiet title to land located in Mountrail County, North Dakota. The action covers 320 acres. Only the title to 160 acres, however, is in dispute, to wit: The South Half of the Northeast Quarter (S½NE¼) and the North Half of the Southeast Quarter (N%SEJ4) of Section 14-154-93. The plaintiff claims to be the owner thereof. The defendants, Naomi Stenzel, Oralie Lorenz, Helen Jackson, Howard Hudson, and Myrtle Hudson, also claim to be the owners thereof and assert their title thereto. They ask immediate possession thereof upon payment of taxes that have been levied against the premises; that the quitclaim deed from Myrtle Hudson on which the plaintiff bases her title be declared null and void and of no force and effect, and that the plaintiff render an accounting of the use and occupancy of the premises.

The facts out of which this controversy arises are as follows: At the time of the death of George W. Hudson, on December 7, 1932, he was the record owner of the above described land. On May 26, 1938, Mountrail County acquired a valid tax title thereto. The county was in possession of the property from the time it took title until in May of 1943. On April 14, 1943, at private sale, the county sold the land to Hans Frandson for $284 with a down payment of $71. On the 15th day of April 1943 the county mailed a “notice of right to redeem” addressed to George W. Hudson, Forada, Minnesota, his address, advising that the county had sold the land to Hans Frandson and:

“that this sale will become final at the expiration of 30 days from the date of mailing this notice, unless within said time you make redemption by paying the full amount of delinquent taxes, penalty and interest charged against said real estate, during which 30 day period the said sale will be held in abeyance.”

The notice further advised that the amount required to make redemption amounted to $253.68. This notice was received by Myrtle Hudson, the widow of George W. Hudson. The land had been sold by him to James F. Muck on a crop contract and a similar notice was mailed to Muck at Ross, North Dakota. Shortly after the mailing of this 30 day notice, John H. Jackson, a son-in-law of George W. Hudson and Myrtle Hudson, the widow of George W. Hudson, wrote a note to the county auditor at the bottom of the notice of the right to redeem. It stated:'

“Enclosed find check to cover redemption in the amount of $253.68. Kindly mail receipt to Myrtle Hudson, Forada, Minnesota.”

On May, 24, 1943, the county executed a deed to George W. Hudson. On May 14th the county auditor of Mountrail County wrote a letter to Flans Frandson returning to him his check for $71 left as a down payment on the land. In his letter the county auditor said:

“This land was redeemed by the former owner, George W. Hudson.”

In the tax deed records of the county someone wrote:

“Redeemed by George W.- Hudson, 253.68.”

• George W. Hudson left surviving him as his sole heirs his widow, Myrtle' Hudson, three daughters, Oralie Lorenz, Naomi Stenzel and Helen Jackson, and a son, Howard Hudson. George W. Hudson’s estate was probated in the State of Minnesota arid a decree of descent was issued by the judge of probate of Douglas County to property left by the deceased in the State of Minnesota.

Under the statute of succession of our state, Section 56-0104, NDRC 1943, upon the death of George W. Hudson, his widow succeeded to a one-third interest in the land owned by him in North Dakota and the other answering defendants, his son and daughters, succeeded to a two-thirds interest therein, or a one-fourth interest in the two-thirds interest, or one-sixth interest therein to each. Hans Frandson was apparently interested in obtaining" title to this land as evidenced by his offer to purchase the same from the county and the down payment thereon. Sometime in the spring of 1943 it appears that Hans. Frandson, or someone on his behalf, wrote concerning this land. On May 15, John H. Jackson wrote a letter to Hans Frandson advising that he had sent a check to the county treasurer of Mountrail County “redeeming the George (H.) Hudson quarter section of land.” He also said:

“Inasmuch as you were also interested in the land I thought I would give you first chance to either buy or rent it.”

He asked for a reply. At the bottom of this letter appears a postscript written in ink:

“Mr. George Hudson was my father-in-law and I redeemed the land, for the George Hudson estate.”

Subsequent to this letter considerable correspondence developed between Jackson and Frandson concerning the rental or purchase of the land by Hans Frandson. In a letter dated March 23, 1944, by John H. Jackson, he stated:

• “As you know, I bought this farm ■for the taxes that we're against it. Obviously, I don’t care to sell it at this time without making some profit.”

In another letter dated April 6, 1944, John Jackson again reiterates:

“I did not care to sell for the price you offered to pay for it.”

It will be noted that in these letters, apparently' John H. Jackson talks in terms of owning the land himself. Early.in May of 1945, . Hans Frandson and John H. Jackson had agreed to the terms of purchase, and John H. Jackson sent to the bank of Sanish, Sanish, North Dakota, two deeds, one from Mountrail County to Myrtle Hudson and one from Myrtle Hudson to Hans Frandson. These deeds appear in evidence.

. It will be remembered that upon the original redemption or repurchase of the land from Mountrail County on May 24, 1943, the county issued a deed designated as “County Deed — From County to Purchaser” to George W. Hudson., This deed was never recorded. On April 3, 1945, Moun-trail County issued another deed to the land involved to Myrtle Hudson. The deed to George W. Hudson was apparently surrendered, and at the time of the trial of this action in district court was found in the office of the county auditor. On the face of this deed appears the following in pencil:

“This deed cancelled 4 — ^5—45. New deed issued to Myrtle Hudson, wife of George W. Hudson.”

On April 26, 1945, Myrtle Hudson by quitclaim deed purports to convey all of the South Half of the Northeast Quarter (S½NE¾;) and the North Half of the Southeast Quarter (N%SE>4) Section 14-154-93 to Hans Frandson. This deed, together with the county deed, was forwarded to the bank of Sanish for delivery to Hans Frandson upon payment of the consideration agreed upon. Both deeds were recorded in the office of the register of deeds on the 11th day of May 1945, apparently by Hans Frandson, as each deed contains a notation of his name and the amount paid for the recording and his address at Ross, North Dakota.

Hans Frandson died in November 1946 and his estate was probated and decreed to his widow, Lena Frandson. She brought this action to quiet the title to the property.

The trial- court determined that Lena Frandson owned a one-third interest in the property, having acquired only that interest which Myrtle Hudson- acquired upon the redemption or repurchase, and that the defendants, Naomi Stenzel, Oralie Lorenz, Helen Jackson and Howard Hudson, the children of George W. Hudson, deceased, owned a two-thirds interest in the land. It further determined that the plaintiff and the children of George W. Hudson were the owners of the land as tenants in common. The plaintiff appealed and demands a trial anew in this court.

After the completion of the trial of this action and after the trial court had written its memorandum decision, a copy of which was sent to'the State’s Attorney of Moun-trail County, 'application was made by the county to intervene in the action. This application is dated August 31, 1954. The pleadings in intervention of the county are dated the same day. On the 2nd day of September 1954, 'an order was entered allowing intervention. The findings of fact, conclusions of law and order for judgment were signed by the trial court two days before the order allowing intervention. Judgment, however, was not enteted in the action until October 1, 1954.

Intervention in an action may be had upon timely application before trial by any one who -has an interest in the subject matter of the litigation or in the success of either party, or an interest against both parties to an action or proceeding. Section 28-0219, NDRC 1943..

In the case of First National Bank & Trust Co. v. Stonehouse, 67 N.D. 11, 15, 269 N.W. 51, 53, it was held that .intervention cannot be had after a matter is settled. Intervention is only permitted before trial.

The validity of the tax title acquired by Mountrail County 'is not questioned.

The title acquired by the county was a new and complete title in the land, under an independent grant from the sovereign authority which bars and extinguishes all prior titles and encumbrances of private persons 'whether of record or otherwise. Baird v. Stubbins, 58 N.D. 351, 226 N.W. 529, 65 A.L.R. 1009; Ulrich v. Amerada Petroleum Corp., N.D., 66 N.W.2d 397. This title, therefore, extinguished all prior titles and encumbrances and left to the former owners, who held title as tenants in common, Myrtle Hudson, Naomi Stenzel, Oralie Lorenz, Helen Jackson and Howard Hudson, the privilege of redeeming or repurchasing the property as long as the title thereto remained in the county. Sections 57-2818, NDRC 1943 and 57-2819, NDRC 1953 Supp. We need not determine whether a redemption or a repurchase took place. The result is the same in either case. The same parties under either statute have the right to ,redeem or repurchase real estate forfeited to the county under tax deed. Upon the acquisition of absolute title in fee by Mountrail County the tenancy in common of the heirs of George W. Hudson was terminated. Baird v. Stubbins, supra, Ulrich v. Amerada Petroleum Corp., supra.

The validity of the redemption or repurchase of the land by one or all of the heirs of George W. Hudson cannot be questioned. The thirty day notice was addressed to him as the title owner at his address. It was received by his widow. Redemption or repurchase was made. Neither do we need to concern ourselves with the possible validity or invalidity of the original deed given by the county upon the redemption or repurchase of the land in which George W. Hudson, then deceased, was named as grantee. His heirs, immediately upon his death, became the owners of the real property in his name and the descent of the title to the property by operation of law created in them a tenancy in common. Stevahn v. Meidinger, N.D., 57 N.W.2d 1; Ellison v. Strandback, N.D., 62 N.W.2d 95; Section 56-0104, subd. 1, par. b, NDRC 1943. But the question still remains whether the redemption or repurchase inured solely to the benefit of Myrtle Hudson or to her and her son and three daughters.

Although John H. Jackson, the son-in-law of George W. Hudson, deceased, asserts that he actually made the redemption or repurchase and was acquiring the property for himself, it is clear that he had no right of redemption or repurchase. He does not come within the terms of either Section 57-2818, NDRC 1943 or 57-2819, NDRC 1953 Supp. He did furnish the money for the redemption or repurchase. But in order to accomplish the redemption or repurchase it had to be made either by all the heirs of George W. Hudson as the members of his immediate family or by one or more of them. Jackson apparently realized this and after the negotiations with Hans Frandson the quitclaim deed to him runs from Myrtle Hudson, the widow of George W. Hudson, deceased.

It is manifest from the evidence that it was the understanding of the county auditor that the redemption or repurchase was being made by George W. Hudson. The first county deed, dated May 24, 1943, was issued to George W. Hudson. The tax deed record in the county auditor’s office contains a notation that the property was redeemed by George W. Hudson. The notation of the cancellation of this deed under date of April 5, 1945, contains the statement that the new deed was issued to Myrtle Hudson, wife of George W. Hudson.

The money forwarded to the county to effect the redemption or repurchase came from John H. Jackson. It did not come from Myrtle Hudson. However, he directed the receipt to be issued to Myrtle Hudson. It will be noted that at about the time that the negotiations with Hans Frandson for the purchase of the land were consummated, the first deed was canceled and a new one issued to Myrtle Hudson. In the first correspondence with Hans Frandson, John H. Jackson referred to redeeming the George (H.) Hudson quarter, and in a postscript definitely states that he was his father-in-law, and that he, John Jackson, redeemed the land for the George Hudson estate. It is true that in subsequent correspondence Jackson emphasizes that he bought the land, but that does not alter the fact that when the money was sent to the county auditor it was to redeem or repurchase a title that had been in all the heirs of George W. Hudson, and if the redemption or repurchase had the effect of restoring the title taken and forfeited to the county either by redemption or repurchase to its previous status, it reverted to all of them. The facts would seem to bear that out.

Myrtle Hudson at no time asserts her sole right to redeem or repurchase. She apparently did nothing except to acquiesce in what was being done by John H. Jackson. In his testimony he admits that Myrtle Hudson and Helen Jackson were the only ones that knew what he was doing. The other heirs knew nothing about the redemption or repurchase. They were not aware of any negotiations of sale to Frandson. The service of the summons and complaint by Lena Frandson apparently was the first notice that Naomi Stenzel, Oralie Lorenz and Howard Hudson had of any controversy concerning the title to the property. Although finding No. 4 of the trial court states in part:

“That the deed to George W. Hudson, deceased, upon request of John H. Jackson, was canceled on April 5, 1945 by the County Auditor and a new deed issued to said widow, Myrtle Hudson in 1945,”

there is nothing in the record to show such request. But it is clear that apparently during the negotiations between Hans Frand-son and John H. Jackson, it became evident that title to the land could not be delivered to Hans Frandson because the George W. Hudson .estate had not been probated in North Dakota. Obviously to avoid the necessity of such probate, the former deed was canceled and a new deed issued to Myrtle Hudson, who purports to convey the entire quarter section of land as the full and complete owner thereof to Hans Frandson. It is also clear that if, upon the redemption or repurchase, the title to the land accrued to all of the heirs of George W. Hudson, the mere cancellation of the deed of George W. Hudson neither added to nor detracted from their title. There was no legal authority in the county auditor to cancel the deed. Its cancellation did not change the legal situation. At any rate if the heirs of George W. Hudson, as tenants in common, upon the redemption or repurchase, became the owners of the property, there was no legal method by which the entire title could be transferred or vested in Myrtle Hudson except by probate of the George W. Hudson estate, and upon title being vested in all of the heirs thereby, a deed from them to her.

John H. Jackson testified by deposition. He was asked:

“Q. Did you, after the decease of George W. Hudson, deceased, redeem the said real estate for Myrtle Hudson; do you recall the date of this redemption? A. Well, I redeemed the real estate mentioned in the question, but not necessarily for Myrtle Hudson. I had some money, and I didn’t want to see the land go by. default for taxes. Myrtle Hudson knew I was paying the taxes and redeeming the land, and so did my wife, Helen Jackson, know I was doing this. I used my own money in redeeming the land, and I do recall the date of the redemption.” (Emphasis supplied.)
“Q. Were you acting as agent for Myrtle Hudson? Did the other heirs of George W. Hudson, deceased, namely Oralie Lorenz, Helen Jackson, Howard Hudson, and Naomi Stenzel consent to such redemption? A. Well, as I stated, I was not necessarily the agent for Myrtle Hudson or any other person in redeeming the land. The money that was used was my money, and I redeemed the land because I hated to see it go for taxes. And in answer to the second part of the question I want to state emphatically that Oralie Lorenz did not consent to such redemption by me, because, well, she knew nothing about it; and Howard Hudson did not consent because he knew nothing about it; and Naomi Stenzel did not consent because she knew nothing about it. (Emphasis supplied.)
“Q. After redeeming said land, did you act as agent and sell the land to Hans Frandson? For whom did you act as agent? A. Well, in selling the land I was acting for myself, although I had to use my mother-in-law’s name on the deed, that is Myrtle Hudson. I sold the land and delivered a deed by Myrtle Hudson, but the money received was my money, and no one else shared in it. This money was paid by Hans Frandson, asid I kept all of it.”

Since John H. Jackson possessed no privilege of redemption or repurchase, and since the record shows, and he disclaims, he was doing this for Myrtle Hudson or as her agent, and since it further shows that she did absolutely nothing about redeeming or repurchasing the property, the legal effect of the redemption or repurchase resulted in vesting the title to the land in all of the heirs of George W. Hudson, as was stated by Jackson in his letter- to Frandson, “I redeemed the -land for the George Hudson estate.” What he claimed thereafter cannot alter the situation.

The courts agree that it would ordinarily be inequitable, because of the confidential relationship ‘existing between cotenants, to permit one without the consent of the others to buy an outstanding adversary title or claim and assert it for his exclusive benefit. And when such a transaction comes before the courts they will usually regard the purchasing tenant as holding the title or claim so acquired for the benefit of his cotenants upon seasonable contribution by them of their respective proportions of the necessary expenditure. 14 Am.Jur., Cotenancy, Sec. 51, p. 120. See note 13 for citations of cases; Stevahn v. Meidinger, N.D., 57 N.W.2d 1, 12. In that case this court said:

“If one of them [cotenants] buys it he does so subject to the rights of the others to contribute to the purchase - price and participate in the benefits. 14 Am.Jur., Sec. S3, p. 123. This principle is applicable where one of several co-owners of property acquires a tax title to the property or bids the same in at a judicial or foreclosure saje. 14 Am.Jur., Sections 54 and 55, pp. 123-126.”

There are some limitations upon this rule, as where there is in fact no confidential relation between the cotenants, or their interests accrued by different acts or under different instruments. See 14 Am.Jur., Co-tenancy, Sec. 52, p. 122:

The general rule has been stated as follows: ■

“Tenants in common and joint tenants are said to stand in confidential relations to each other in respect to their interests in the common property and the common title under which they hold; -and the courts generally assert that it would be' inequitable to permit one, without the consent of the others, to buy in an outstanding adversary claim to the common estate and assert it for his exclusive benefit to the injury or prejudice of his co-owners; and, if one cotenant actually does acquire such claim, he is regarded as holding it in trust for the benefit of all his cotenants, in proportion to their respective interests in the common property, who seasonably contribute , their share of his necessary expenditures; the courts will not, ordinarily, permit one cotenant to acquire and set up for his exclusive benefit any claim adverse to the common rights; at least,. ' where all the cotenants derive title . from a common ancestor by descent, or from a common grantor by a single conveyance.’’’ 54 A.L.R. 75. See citation of cases in this note supporting this statement of the rule. (Emphasis supplied.)

In the case of Arthur v. Coyne, 32 Okl. 527, 122 P. 688, it was held that where each of two persons owns an undivided half interest in the improvements on and the right of possssion to a town lot, and are, as such, cotenants entitled to have it scheduled to them jointly and to purchase it under the town-site law, and one of them, without the knowledge or consent of the other, has the lot scheduled to and acquires the legal title in himself individually, he will be held to take the legal title of the interest of his cotenant as trustee.

Here the title to the heirs of George W. Hudson came to them by operation of law on his death. If Myrtle Hudson were now permitted, merely by virtue of the deed issued to her in cancellation of the one issued to her deceased husband, to acquire the entire fee to the land, she would be acquiring an inequitable advantage over her cotenants. The new cotenancy did not come about by the issuance of the county deed to George W. Hudson. Upon the acceptance by the county of the amount necessary to redeem or repurchase the property the county no longer had any interest therein. The issuance of a deed to evidence that fact is a mere clerical duty. In the case of Buman v. Sturn, 73 N.D. 561, 16 N.W.2d 837, it was held that upon the expiration of the period of redemption the county was vested with absolute title and it was but a ministerial act upon the part of the county auditor to issue the deed. See also Stutsman v. Smith, 73 N.D. 664, 18 N.W.2d 639. It was likewise held that upon the running of the period of redemption in a mortgage foreclosure the title to the property vests in the holder of the sheriff’s certificate. First National Bank v. Knauss, 68 N.D. 227, 277 N.W. 516. See also Lillegard v. Hutchinson, 67 N.D. 44, 269 N.W. 43. In Stevahn v. Meidinger, N.D., 57 N.W.2d 1, 17, it was held that the right of redemption can only be exercised within the period of time and in the manner prescribed by law, thereby implying that title vests upon the expiration of the time to redeem. 59 C.J.S., Mortgages, § 772b, page 1456⅛ While the situation here is not exactly the same, it is analogous. The redemption or repurchase placed all the co-tenants in the position they were before the tax title. They became vested with all the right, title and interest of the county in the land. It was but a ministerial act to'execute the deed. The county,-apparently without knowledge of the death of George W. Hudson, executed the deed to him. Thus the title remained for nearly two years. No one made any objection. It is only when a sale was about to be completed to Hans Frandson that there is an attempt to change the legal consequences accruing upon the redemption or repurchase of the land. The cqtenants here were a mother and her children. There is every reason to adhere to the rule that it would be inequitable to permit one by reason of the confidential relationship existing between them to procure an adverse title to the property for her exclusive benefit without the knowledge of the other cotenants in absence of a waiver of their right. No such waiver exists here.

• Here the redemption or repurchase amounted to the procurement by the former owners of the tax title acquired by the county upon tax forfeiture. Under the facts and circumstances involved in the redemption or repurchase of the property from the county accruing by virtue of the redemption or repurchase privilege, the title thereto inured to the benefit of all the heirs of George W. Hudson as tenants in common. The redemption or repurchase resulted in the creation of a new tenancy in common in the heirs of George W. Hudson and -they then were entitled to the possession, of the property.

It is argued that the .land was abandoned by George W. Hudson during his lifetime. This contention is wholly immaterial, as the former owner, his executor or administrator, or any member of his immediate family, had the right to redeem or repurchase the real property forfeited to the county under tax deed proceedings so long as the tax title thereto remained in the county. Upon notice of the -sale of the property to Hans Frandson by the county, and within the time of the thirty day notice, the privilege extended by the statute was utilized and a redemption or repurchase was made. We have held that the legal effect of such redemption or repurchase was to reinvest' the forfeited title in the heirs of George W. Hudson, deceased.

It is also contended that the answering defendants are barred from asserting title to the land by the operation of an equitable estoppel. The attempt to invoke this doctrine is based on the fact that Hans Frandson relied on the statements made by John H. Jackson when purchasing the land. Frandson wanted the land. He had purchased it from the county and his agreement of purchase was canceled as soon as John H. Jackson, the son-in-law of George W. Hudson, sent the amount stated in the “notice of right to redeem” to the county and the county issued a deed to George. W. Hudson. Mr. Frandson negotiated for nearly two years with John H. Jackson. He, of course, was aware of the forfeiture of the land to the county by virtue of his dealings with the county for its purchase. He obtained a quitclaim deed from Myrtle Hudson. That deed conveyed to him only such title as Myrtle Hudson had. Mr. Frandson, being fully aware of the condition of the title, had no right to rely upon any facts or statements of John H. Jackson. Nor does the record indicate that any representations were made by John H. Jackson as to ownership by Myrtle Hudson of the complete title which she purported to convey by her quitclaim deed to Frandson. It is a proper inference to conclude, although the record does not show it, that Mr. Frand-son was aware of the necessity of getting the title out of the name of George W. Hudson so that a conveyance could be made to him without a probate of his estate. While there is nothing in the record to indicate by whose procurement the original county deed was canceled, it does appear that it was canceled on April 5, 1945, two days after the new deed had been issued to Myrtle Hudson and the deed to George W. Hudson had been surrendered, and within twenty-one days thereafter Myrtle Hudson quitclaims to Frandson.

“The facts in this case fall far short of establishing an equitable estop-pel. An essential element of such an estoppel is a representation which may consist of words, acts or silence, believed and relied upon by the party claiming the benefit of the estoppel which induced him to act or refrain from acting, to his prejudice. Thompson on Real Property, Perm.Ed., Sec. 2612; Pomeroy’s Equity Jur., 5th Ed., Sec. 812. In the latter citation it is said:
“ ‘The cases all agree that there can be no estoppel, unless the party who alleges it relied upon the representation, was induced to act by it, and thus relying and induced, did take some action. * * * Although this action is usually affirmative, yet such affirmative action is not indispensable. It is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss.’ Werner v. Werner, 74 N.D. 565, 571, 23 N.W.2d 757, 759. See also Baird v. Stephan, 52 N.D. 568, 204 N.W. 188.

There is not the slightest intimation in the record that anything that Jackson said or did was in any way relied upon by Hans Frandson. He was acting on his knowledge of the whole situation, and if he did not take the precaution to ascertain the exact legal status of the state of the title prior to his purchase, he had no one to blame but himself, and his widow, who inherited from him, stands in no better position than he did. Even if we assume that Mr. Frandson was ignorant of the legal effect of the quitclaim deed from Myrtle Hudson, such ignorance was not induced by any act of John H. Jackson or Mrs. Hudson.

It is next asserted that the answering defendants are barred from asserting title by laches. Laches, generally speaking, is such a delay in enforcing one’s right as to work a disadvantage to another. In a sense it is neglect for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done. 30 C.J.S., Equity, IV. Laches, etc., § 112, p. 520. In Gronna v. Goldammer, 26 N.D. 122, 134, 143 N.W. 394, 398, this court said:

“In order, indeed, ‘that a remedy may become barred because of laches, there must appear, in addition to mere lapse of time, some circumstances from which the defendant or some other person may be prejudiced, or there must be such lapse of time that it may be reasonably supposed that such prejudice will occur if the remedy is allowed.’ ”

The essential elements of laches are set forth in 19 Am.Jur., Equity, Sec. 498, pp. 343 and 344.

No ironclad rule can be laid down applicable to all cases, but the circumstances of each case must determine the application of laches as the equities are shown by the evidence. No argument is presented by the appellant to show the proper application of laches as to the rights that she asserts in this action. No act or representation is pointed out of the answering defendants which in any way misled the plaintiff and appellant. In fact the evidence discloses that her husband, Hans Frandson, did not deal at all with the answering defendants. He dealt with' John H. Jackson, who testified that none of the defendants except his mother-in-law, Myrtle Hudson, and his wife, Helen Jackson, knew about the redemption or repurchase of the land or its sale. He disclaims that he was acting for Myrtle Hudson or as her agent. He asserts that he was acting for himself. Hans Frandson knew, or must have known, that the original record ownership existed in George W. Hudson. He knew, or must have known, of the issuance of the county deed on the redemption or repurchase to George W. Hudson on May 24, 1943. He knew that he was receiving a quitclaim deed from Myrtle Hudson. There is every reason to believe, although the record does not show it, that the cancellation of the original deed to George W. Hudson and the issuance of the new one to Myrtle Hudson was obtained to enable a transfer of the land direct to Hans Frandson and enable him and John H. Jackson to complete the negotiations for the sale and purchase of the land. Laches has no application to the issue here involved.

The answering defendants set up in their answer and counterclaim that the plaintiff has been in possession of the land since 1943, and that she has had the full use and occupation of the premises and received all of the profits from the said use and occupation thereof. They make a demand for an accounting for the use and occupation of the land. No evidence was presented upon this issue nor is it argued in the brief of the respondents. The issue must, therefore, be deemed abandoned.

We must next determine whether the quitclaim deed issued by Myrtle Hudson purporting to convey all of the property to Hans Frandson did in fact convey anything more than a one-third interest in the property. The quitclaim deed executed and delivered by Myrtle Hudson to Hans Frandson, dated April 26, 1945, states that said party of the first part, Myrtle Hudson,

“do hereby convey and quit claim, to said party of the second party, (Hans-Frandson) his heirs and assigns forever, all right, title and interest in and to the certain tract of land in the County of Mountrail, State of North Dakota, described as follows,” (Emphasis supplied)

and then follows the description of the land. The deed is labeled as a quitclaim deed and is on a printed form. It did not operate to convey the entire fee in the land, although it was color of title. Morrison v. Hawksett, N.D., 64 N.W.2d 786. Nowhere does the word “grant” appear in the instrument. Where such word is used in a. conveyance by which an estate of inheritance or fee simple is to be passed, certain covenants are implied. Section 47-1019, NDRC 1943. The quitclaim deed contains-no covenant of warranty. See State v. Kemmerer, 14 S.D. 169, 84 N.W. 771, affirmed 15 S.D. 504, 90 N.W. 150. A quitclaim deed is one which purports to convey, and is understood to convey, nothing more than the interest or estate in the property described of which the grantor is seized or possessed, if any, at the time, rather than the property itself. 26 C.J.S., Deeds, § 8, p. 181. A quitclaim deed does not purport to convey the property, but only the grantor’s right, title and interest therein. State v. Kemmerer, supra.

Since Myrtle Hudson was vested with only an undivided one-third interest in the land, her quitclaim deed to Hans Frand-son conveyed only such interest as she owned. Hans Frandson acquired only the interest that she owned and that interest and no more descended to Lena Frandson through his estate. Accordingly Lena Frandson is the owner of an undivided one-third interest in the property and Naomi Stenzel, Oralie Lorenz, Helen Jackson and Howard Hudson are the owners of the remaining two-thirds interest therein, each one being vested with a one-fourth interest of the two-thirds interest. Together said parties are the owners of the property as tenants in common. Patton on Titles, Sec. 249, p. 794; Stevahn v. Meidinger, N.D., 57 N.W.2d 1, 11.

The judgment of the trial court is affirmed.

BURKE, C. J., and SATHRE, MORRIS, and GRIMSON, JJ., concur.


author: MORRIS, Judge. BURKE, Chief Justice

text:
    Harry ATTLESON, Plaintiff and Respondent, v. L. H. BOOMGARDEN, Defendant and Appellant.
    No. 7545.
    Supreme Court of North Dakota.
    Oct. 26, 1955.
    Rehearing Denied Dec. 19, 1955.

      Hyland & Conmy, Bismarck, for defendant and appellant.
    Lanier, Lanier & Knox, Fargo, for plaintiff and respondent.
   MORRIS, Judge.

This is an appeal from a judgment rendered against the defendant for damages to plaintiff’s 1951 Plymouth four door- automobile resulting from a collision with a truck owned and operated by the defendant. The case was tried to a jury which rendered a verdict in favor of the plaintiff. The automobile at the time of the accident was being operated by W. W. McDougall who was plaintiff’s agent.

The collision occurred at approximately 7:15 p. m. on July 23, 1954, on a gravel surfaced farm-to-market road nine miles west of the town of Buchanan. The gravel surface of the road was twenty-eight feet wide. In this gravel were four distinctly worn wheel paths or tracks. The road at the place of the accident ran east and west. The collision occurred, on the west slope of a hill near the crest. The defendant Boom-garden came over the crest of the hill driving in the two center wheel tracks at a speed of thirty to forty miles an hour. McDougall coming up the hill was driving thirty-five to forty miles an hour. The vehicles made glancing contact. The truck stayed on the road; the car went into the ditch but did not turn over. It was badly damaged. There was little damage to the truck. ■

At the close of the testimony the defendant moved for a directed verdict upon the ground, among others, that plaintiff’s agent, McDougall, was guilty of negligence that contributed proximately to cause the accident and now urges in this court that Mc-Dougall was -guilty of contributory negligence as a matter of law that bars plaintiff’s recovery. This contention is based upon McDougall’s admitted speed of thirty-five to forty miles an hour. As the vehicles approached the point of collision the views of the drivers were obstructed by the crest of the hill. McDougall testifies that he first saw the truck when it was from thirty to fifty feet away. The defendant argues that the speed at which McDougall was traveling was a violation of Section 39-0902, NDRC 1943 and that he was therefore guilty of contributory negligence as a matter of law.

Whether in a civil action for damages speed in excess of a positive statutory limit is negligence as a matter of law or whether it is evidence to be considered on the question of negligence is a point upon which authorities differ. 60 C.J.S., Motor Vehicles, § 201, p. 542; 5 Am.Jur., Automobiles, Section 262; Cyclopedia of Automobile Law and Practice, Blashfield, Permanent Edition, Volume 10A, Section 6599, and Volume 4, Part 2, Section 2686, and Volume 10, Part 2, Section 6704. However that question is not before us in this case. The statute on which the defendant relies does not establish a definite speed limit. It provides in part:

“Subject to the provisions of section 39-0901 and except in those instances where a lower speed is specified in this chapter, it presumably shall be lawful for the driver of a vehicle to drive the same at a speed not exceeding: * * ⅜
“4. Twenty miles an hour in traversing or going around curves or traversing a grade ’upon a highway when the driver’s view is obstructed within a distance of one hundred feet along such highway in the direction in which he is proceeding; * * *.
“ * * * It shall be prima facie unlawful for any person to exceed any of such foregoing speed limitations except as otherwise provided in section 39-0903.” Section 39-0902, NDRC 1943.

According to this statute a speed of over twenty miles per hour is prima facie unlawful under the conditions described in the statute and it would follow that such a speed is at the most prima facie evidence of negligence arid not negligence as a matter of law. Whether negligence results from such speed is a matter for the jury to determine. The difference between such a statute as ours and statutes providing for definite speed limits is discussed and distinguished in Wosoba v. Kenyon, 215 Iowa 226, 243 N.W. 569. In cases not involving statutory speed limits we have held that violations by drivers of motor vehicles of statutory rules of the road are evidence of negligence. Spenningsby v. Peterson, N.D., 67 N.W.2d 913; Knudsen v. Arendt, 79 N.D. 316, 56 N.W.2d 340; Imus v. Huber, N.D., 71 N.W.2d 339. Defendant’s contention that the record shows that the plaintiff is guilty of contributory negligence as a matter of law is not sustained.

The defendant further challenges the sufficiency of the evidence to support the verdict on the ground that there ⅛ no proper proof of the amount of damages suffered by plaintiff’s car. The plaintiff offered in evidence a repair estimate made by a garage and testified that the repairs as shown by the estimate were needed because of the collision and that he had the repairs made. This exhibit was admitted in evidence without objection. It shows the amount of repairs, including total labor and parts, plus tax, to be $549.51. This is the exact amount of the verdict rendered by the jury. This exhibit and the accompanying testimony is sufficient to sustain the verdict rendered on this point. See Clark v. Josephson, N.D., 66 N.W.2d 539; Cyclopedia of Automobile Law and Practice, Blashfield, Permanent Edition, Volume 6, Part 1, Section 3415.

The defendant vigorously asserts that the court committed reversible error in questioning the witness Fisher and permitting certain answers to be made over defendant’s objection. Fisher saw the accident from a distance of one hundred fifty to two hundred yards. He was in a farmyard working on a piece of machinery when it occurred. He went down to the scene of the accident a minute or two after it happened. The evidence and rulings challenged by the specification of error being difficult to summarize, we quote verbatim from the transcript:

“The Court: I have a question I want to ask the witness. Can you tell where this collision happened on this road? A. How far from Buchanan?
“The Court: Do you know which side of the road, or in the middle or just where did it happen on the road? A. Well, I would say—
“Mr. Conmy: I want the record to show to that an objection calling for a conclusion and a self-serving declaration without foundation, calling for an opinion in the nature of expert testimony, improper and inadmissible, and prejudicial.
“The Court: Overruled. Did you see this collision ? A. Yes, sir.
“The Court: You tell the jury where it happened.
“Mr. Conmy: Same objection.
“The Court: Overruled.
“A. This collision happened approximately nine miles west of Buchanan.
“The Court: Where on the road.
“Mr. Conmy: Same objection.
“The Court: Overruled.
“A. On this farm-to-market road that runs straight west from Buchanan.
“The Court: How wide is that road ? A. Twenty-eight feet from gravel to gravel.
“The Court: That was the width at that time? A. Yes, sir.
“The Court: And on what part of the road did it happen, the collision happen ?
“Mr. Conmy: The same objection.
“The Court: Overruled.
“A. You mean just from the center of the road?
“The Court: Yes, sir, I want to know where it happened, in the middle or — A. I would say it happened on the south side of the road, according to where McDougall’s track had started to turn out, and up about twenty to twenty-five, thirty feet west of the approach, is where the impact took place.
“The Court: And now you are testifying as to what you saw ?
“Mr. Conmy: One moment, if the Court please. I want to move that the last answer be stricken as an opinion without foundation, as a conclusion without proper foundation; as readily the subject of expert testimony, not properly the subject of expert testimony, and without the qualifications of the witness being established as an expert.
“Mr. Lanier: If the Court please, he has just testified as to what he saw.
“The Court: The first time that it required an expert to tell what he saw. You may answer. A. Well, sir, when we got out there, we could see the tracks where the car had started to skid, and it skidded across the approach into the ditch, approximately five to ten feet beyond the approach, setting with the rear end of the car into the ditch and the front end to the north.
“The Court: Are you testifying from the tracks or from what you saw. A. I am testifying from what I saw, and from the tracks.
“The Court: That’s all.”

The defendant argues that the court over objection elicited testimony from the witness Fisher that invaded the province of the jury and cites Kohler v. Stephens, 74 N.D. 655, 24 N.W.2d 64, 73. In that case the former sheriff who arrived at the scene of the accident a short time after it happened prepared a sketch of the scene which was introduced in evidence as an exhibit. Concerning this exhibit we said:

“It is apparent from an examination of the exhibit as well as from the statement of plaintiff’s counsel at the time of its introduction that the sketch in question exceeded the limits prescribed by the general rule of admissibility of such documents in that it contained not only what the sheriff saw when he arrived at the scene of the accident but contained, also his conclusions with respect to highly controversial and important matters. He depicted thereon the relative positions of the motor vehicles as they approached each other and indicated by diagram and legend the point of impact. The determination of these matters was exclusively within the province of the'jury and it was error for the court to permit the former sheriff’s conclusions with respect thereto to be submitted to the ■ jury in the highly impressive form of a diagram.”

See also Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242. It is obvious from the part of the record that we have quoted that the court was trying to secure from the witness testimony as to what he saw. The witness saw the accident, or as he puts it: “I seen it just as it happened.” Almost immediately he went to the scene. He described in detail the condition of the highway, where the tracks were, and where dirt had fallen from the undercarriage of one of the vehicles. As the record stood at the time the objections involved in this specification of error were made it appeared that the witness was testifying as he states: “from what I saw, and from the tracks.” It was not error to overrule the objections. Counsel for the defendant points to the following question and answer which immediately follow that already quoted:

“Q. (By Mr. Conmy) From where you were standing up in the yard, could you tell whether the Boomgarden truck was across the center line of the road or whether the automobile driven by McDougall was across the center of the road? A. No, sir.”

It is argued that this answer of the witness clearly demonstrates that he was testifying to his conclusion from what he saw after the accident. However no motion was made to strike the former testimony of the witness so the last question and answer avails the defendant nothing. The correctness of the court’s ruling on the objections must stand or fall on the record as it stood at the time the court’s ruling was made when no opportunity was given the court to change it.

The final specification of error argued in the defendant’s brief pertains to a blackboard on which plaintiff’s counsel drew a diagram or chart which he used in cross-examining the defendant whom he had called for cross-examination under the statute, Section 31-0202 NDRC 1943 and later used in examination of one of his own witnesses. The blackboard was not made an exhibit in the case and is not a part-of this record. Defendant’s counsel did not object to the use of the blackboard in the first instance but when plaintiff’s counsel started to use it in connection with-the examination of plaintiff’s principal witness, McDougall, defendant’s counsel objected. After considerable colloquy between the court and both counsel, the witness was' permitted to identify certain marks on the blackboard as indicating the crest of the hill and ruts or tracks where the cars had traveled and to give descriptive testimony with respect thereto. ■ These marks had been pointed out to and discussed with the defendant under cross-examination and there appears to be some disagreement in the testimony of these two witnesses as to the correctness of the diagram.

The fact that counsel is permitted to use in connection with the examination of a witness a drawing or diagram which he has made upon a substance which does not lend itself to being made a part of the record and is not an exhibit in the case is not always reversible error. It is a dangerous practice that does not meet with our approval for it may require a reversal where the use of the drawing and its absence from the record tends to obscure a critical point of controversy involved in a motion for a new trial or an appeal. But the use of such illustrative material which does not become a part of the record does not alone compel reversal. People v. Figueroa, 134 Cal. 159, 66 P. 202; Anderson v. Commonwealth, 205 Ky. 369, 265 S.W. 824; Carter v. Commonwealth, 260 Ky. 538, 86 S.W.2d 290; Connelly v. Nolte, 237 Iowa 114, 21 N.W.2d 311. In this case witnesses described in detail, although with some conflict, the locale of the accident. Questions propounded by counsel in connection with his examination insofar as they refer to the blackboard appear to be neither misleading, nor confusing, either to the jury or to this court. It was used without objection in connection with the cross-examination of the defendant. It was only when a witness for the plaintiff started to testify in contradiction of some of the statements of the defendant with reference to the blackboard drawing that an objection was interposed. These points of conflict have no bearing upon the grounds on which the defendant now seeks reversal of the judgment. Under these circumstances it is apparent to us that the use of the blackboard did not result in prejudicial error to defendant., The judgment appealed from is affirmed.

BURKE, C. J„ and SATHRE, JOHNSON and GRIMSON, JJ., concur.

On petition for rehearing.

Rehearing denied.'

BURKE, Chief Justice

(dissenting).

Upon a reconsideration of the issues in this case on petition for rehearing I have reached the conclusion that the opinion filed by the court herein is not correct. The principal issue of fact in this case was whether the collision between the defendant and the plaintiff occurred upon the north or the south half of an east and west highway. The question as to which party was negligent was to a great extent dependent upon how that issue of fact was decided. The witness Fisher, who saw the collision from a point 150 to 200 yards from the highway was the only disinterested person who saw the collision.

During the trial the trial judge took over the examination of the witness Fisher and after some preliminary questions and answers the following appears of record:

“The Court: And upon what part of the road did it happen, the collision happen? A. You mean just from the center of the road?
“Q. Yes, sir, I want to know where it happened, in the middle or — A. I would say it happened upon the south side of the road, according to where McDougald’s track had started to turn out, and up about twenty to twenty-five, thirty feet west of the approach is where the impact took place.
“The Court: And now you are testifying as to what you saw ?
“Mr. Conmy: One moment, I want to move that the last answer be stricken as an opinion without foundation, as a conclusion without proper foundation; as readily the subject of expert testimony, not properly the subject of expert testimony, and without the qualifications of the witness being established as an expert.
“Mr. Lanier: If the court please, he has just testified as to what he saw.
“The Court: The first time it required an expert to tell what he saw. You may answer.”

The trial judge’s ruling, “You may answer,” was not directly responsive to the motion to strike. It was, however, given as a ruling on the motion and can only be construed as a meaning, “Let the answer stand”, as there was no unanswered question pending at the time.

I think that it is apparent upon the record that the challenged answer, in so far as it was responsive at all, was a conclusion which the witness had deduced from tracks he had seen upon the highway. He said, “I would say it happened upon the south-side of the highway, according to where McDougald’s tracks had started to turn out.” The language, “I would say” and “according to”, clearly marks the answer as a conclusion. The leading question, “And you are now testifying as to what you saw?” which was thereafter propounded by the trial judge could not have been answered in the affirmative unless the witness misunderstood the meaning of the question. In any event it was not answered by the witness. The trial judge apparently decided to accept the statement made by the attorney for party to whom the challenged answer was favorable, as a basis for overruling the motion to strike. He also coupled with his ruling a statement which would indicate to everyone in the court room, including the jury, that the attorney for the defendant should have known better than to make the objection in the first place.

I think it was error to deny the motion to strike. Kohler v. Stephens, 74 N.D. 655, 24 N.W.2d 64. I think also that the error was prejudicial because the issue upon which the testimony was given was one of the most important in the case and the witness who gave it was a disinterested witness. It is my opinion that a new trial should be granted.