author: JOHNSON, .'Judge.

text:
    Phillip FEDORENKO and Elizabeth Fedorenko, Plaintiffs and Respondents, v. M. B. RUDMAN, Defendant and Appellant.
    No. 7495.
    Supreme Court of North Dakota.
    July 2, 1955.

      Williams & Buehler, Garrison, for plaintiffs and respondents. .
    Harold A. Pollman, Williston, for de-. fendant and appellant. • :
   JOHNSON, .'Judge.

On October 30, 1952, the plaintiffs commenced an. action against the defendant, praying for a reconveyance of ,%6ths of the minerals granted by them to him by a mineral deed dated July 22, 1949, and covering and describing:

The South Half of the Northwest Quarter (S¡^NW%), and Lots 3 and 4, Section 1, Township 149 North, Range 78 West of the 5th P.M., arid the East Half of the Southeast Quarter (E^SE^t) of Section 35, Township 150 North, Range 78 West of-the 5th P.M., McLean County, North Dakota,

of which the plaintiff, Phillip Fedorenko, was the title owner.

The mineral deed executed by the plaintiffs purported to convey to the defendant-an undivided one-half interest in and to all the oil, gas and minerals in and under and that may be produced- from the land-above described.

The complaint alleges that the mineral deed was obtained by one W. L. Braun, an agent of the defendant, by fraud. The plaintiffs; in that connection, allege that’ they af'e somewhat unfamiliar with the English language; that it is not their native tongue, and that they' relied upon certain false and fraudulent representations made by the agent as to the purpose and effect of said mineral deed. They set forth representations that the mineral -deed -meant nothing; that it merely went with the oil and gas lease; that the deed would terminate at- the end of a period of not more than ten years; that if the lease, was- canceled for nonpayment of rentals, the deed' would be canceled also; that additional consideration for, the deed would be paid annually for .the period it remained in. effect; that the deed did not affect the plaintiff’s rights to the oil in or under the land; it only affecting solid minerals as distinguished. from oil and gas; • that “the legal effect of the lease and deed' would.-be. to give the defendant one-half of all minerals and one.-sixteenth .of- all oil ,and gas-produced, thereby implying that the ownership of the same remained in the plaintiffs.” It is alleged that these representations were false and fraudulent as the agent of the defendant well knew and that .they were made for the purpose of defrauding the .plaintiffs and that the plaintiffs relied on the representations made and signed the mineral deed without reading it; and that they had only recently discovered that such representations were false and fraudulent.

The complaint sets out also that prior to the commencement of this action, the defendant conveyed to a third party a one-sixteenth interest in the minerals purportedly conveyed by the mineral deed and that the defendant claims to retain a seven-sixteenths interest. The plaintiffs pray that the defendant be ordered to reconvey a seven-sixteenths interest in the oil and gas- and minerals to the plaintiffs and that they have such other relief as may be just and equitable, together with costs.

The defendant answered- specifically denying that any portion of the transaction set forth in the plaintiff’s complaint was procured by fraud, and further specifically denying the specific allegation's of false and'fraudulent representations tríade'to the plaintiffs and asked for- a dismissal of the action. -

This action was tried to the court without a jury on the 6th day of - April, 1954. The trial court found for the plaintiffs and the defendant appeals and asks for a trial de novo.

The trial court found as a fact that the lease and deed -syere not read to the plaintiffs; that the mineral deed was not explained to them; . that the. plaintiffs thought or understood that they were only signing an oil and gas lease and that neither knew or understood that they were signing a mineral deed- It concluded as a matter of law that ■ no agreement was reached between the plaintiffs and the defendant for the execution of the mineral deed; “that there was no meeting of the minds of the parties as to such deeds, and no contract between the parties at any time as to said deed or the oil, gas and minerals purportedly conveyed thereby.” The findings of the trial court are entitled to appreciable weight. Gunsch v. Gunsch, N.D., 67 N.W.2d 311.

The court required repayment or tender by the plaintiffs of $27 representing ,the original stated consideration for the mineral deed, less the amount by which the annual delay , rentals of the oil’ and gas lease after July 22, 1949, were reduced by reason of the purported ownership of the defendant of a one-half interest in the oil, gas and minerals, and required the defendant upon such deposit made within thirty days after entry of judgment,, to reconvey a seven-sixteenths mineral interest in the lands -heretofore described to' the plaintiffs, or in absence thereof that- the judgment . should constitute: a reconveyance. The tender was made as required by the trial court. Judgment was- entered on the 17th day of June, 1954.

The plaintiffs testified at length concerning the execution of the oil and gas lease and the mineral deed. None.of that testimony offered relates to the allegations of fraud and misrepresentation set forth in the complaint. The plaintiffs categorically deny ■ that they ever knew that they had signed a mineral deed. They state they intended to sign only an oil, gas and mineral lease. They deny that Mr. Braun ever made mention -of a mineral deed and testified that the original lease and the copies thereof and the mineral deed and the copies thereof,- at the .time they executed them; were-, so placed as to prevent them from ascertaining the nature of each instrument.- Mr.- Braun, the agent left with them a copy of the oil, gas and mineral lease and of the mineral deed.

The trial court, in discussing the issues involved 'in the action, states that it was his 'belief that there was “no meeting of the minds” of the parties as to the contracts for mineral deeds. The memorandum opinion of the trial court deals not Only,, with'-this' case-but with the case of Harry Pozarnisky and Anna Pozarnisky, plaintiffs, also against the defendant in this action. Although these cases were consolidated for’the purpose of trial, they were briefed, and presented separately in this court. " The 'court asserted that it was his belief that all the parties could ha've acted in good faith and arrived at the same results; that Mr. Braun thought he had explained the mattér, but that the plaintiffs did not understand him. There is no finding of' fraud, 'but' merely a finding that th'e parties did not understand each other, and therefore, there was no contract or agreement concerning the execution of the minerál deed. The plaintiffs signéd the minéral deed under a mistake of fact.

Rescission of a contract, whether the obj ect - of a - suit in equity or an action at law, is governed by equitable principles. Bostwick v. Mutual Life Ins. Co., 116 Wis. 392, 89 N.W. 538, 92 N.W. 246, 67 L.R.A. 705; 17 C.J.S., Contracts, § 413, p, 899.

A unilateral mistake may entitle a party affected thereby to rescind the contract. 17 C.J.S., Contracts, § 418 d, p. 903.

Generally it may be said that equitable relief by way of rescission will be given from a unilateral mistake relating to a material feature of a contract of such grave consequence that the contract would he unconscionable. In this particular case the trial court, after hearing all of the evidence, found that the plaintiffs never understood the defendant’s agent and hence signed the mineral deed-on the basis of mistake of fact that it was an oil and gas lease. That would have entitled the plaintiffs to a cancellation of the instrument if they had taken the necessary steps promptly upon discovery of -the true facts. 17 C.J.S., Contracts, § 432 d, p. 916.

The oil and gas lease provides for an annual delay rental due twelve months after the date of the lease, or on July 22, 1950.

The record of the evidence in this case is lengthy. The plaintiffs attempted to show that they had been overreached by fraud. The defendant, by his witnesses, Braun and Porter, deny the fraud. We are satisfied from the examination of the evidence in this case that no fraud existed. It is, therefore, unnecessary to discuss the evidence with reference to the allegations of fraud. Even if we assume for the purpose of this opinion that the mineral deed was signed on the basis of mistake of fact, the question remains whether the attempt to rescind the mineral deed on the basis of mistake has been promptly pursued.

A rescission is the unmaking of a contract. Butler Mfg. Co. v. Elliott & Cox, 211 Iowa 1068, 233 N.W. 669. Ah attempted rescission of a contract assumes 'that it has ceased to exist. Bauer v. National Union Fire Ins. Co., 51 N.D. 1, 198 N.W. 546. Rescission does not merely terminate a contract, it abrogates and undoes the contract from the beginning. Funk v. Baird, 72 N.D. 298, 306, 6 N.W.2d 569, 573. Generally speaking, rescission abrogates the contract not partially but completely. Raasch v. Goulet, 57 N.D. 674, 223 N.W. 808. Insofar as it is possible the plaintiffs are seeking the unmaking of the. contract by procuring a re-conveyance of the minerals that have not passed into the hands of innocent persons. In order to be entitled to a reconveyance they have assumed, and must assume, on the basis alleged, that the contract had ceased to exist.

Tlie plaintiffs are only entitled to a reconveyance if they are entitled to rescind or cancel the mineral deed.

“A contract may be extinguished in' like manner with any other obligation and also,.-by rescission, alteration or cancelation to the extent and in the manner provided by this title.” Section 9-0901, NDRC 1943.
“Rescission; When Permitted. A party to a contract may rescind the same in the following cases only:
“1. If the consent of the party rescinding or of any party jointly contracting with him was given by mistake or obtained through duress, menace, fraud, or undue influence exercised by or with the connivance of the party as to whom he rescinds or of any other party to the contract jointly interested with such party; * * * Section 9-0902, NDRC 1943,
“Rules Governing Rescission. Rescission, * * * can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules:
“1. He must rescind promptly upon discovering the .facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability and is aware of his right to rescind; and
“2. He must restore to the other party everything of value which he has received from-him under the contract or must offer to restore the same upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.” Section 9-0904, NDRC 1943.

The plaintiff, Phillip Fedorenko, testified that he discovered that he and his wife had signed a mineral deed about a year and three months after July 22, 1949. This was some time after the delay rentals became due under the oil, gas and mineral lease, on July 22, 1950. It is at this point that he discovered that he signed an instrument which he and his wife allege 'was procured by fraud. Thereupon' he went to the bank, presumably the bank designated in the oil and gas lease, the First ¡National Bank of Minot, North Dakota.' He had received a statement of the amount of money due him as delay rental, and “figured that there was something wrong.” He took his papers to the bank and his banker looked them over and advised this plaintiff, “You better go see a lawyer about it.” The plaintiff did not consult a lawyer for some considerable time after he had seen his banker. Sometime during the winter of 1950-51 he talked to Mr. Bosard, a Minot attorney. The plaintiff at that time was making his home in Minot, North Dakota. Mr. Bosard advised him to go and see his State’s Attorney who at that time was Mr. Robert Vogel of Garrison, North Dakota, and who later brought the action on behalf of the plaintiffs. Mr- Fedorenko employed Mr. Vogel either the latter part of May, 1951, or the first part of June, 1951. The first intimation that the defendant had that Phillip Fedorenko and his wife were not satisfied is contained in a letter dated June 30, 1951, written by the plaintiff’s attorney, Robert Vogel, to the defendant, in which a request is made for cancellation or reconveyance of the mineral deed in question, with the further statement that if this is not done it will be necessary to take action to obtain a reconveyance or damages or both. There is no offer therein contained to restore the consideration paid for the mineral deed, which the testimony indicates was $50 for each 160 acres, or, in this particular case, $75. The oil, gas and mineral lease recited a consideration of $24. The plaintiffs received a check for $99 dated the same day as the lease.

The action of the plaintiffs was commenced on the 30th day of October, 1952, or a year and four months after the letter addressed to the defendant. The action is based upon the right of rescission and predicated on fraud practiced upon- the plaintiffs.

The action of the plaintiffs recognizes that a one-sixteenth interest of the minerals conveyed by the deed of the plaintiffs to the defendant has been transferred by him to a third party and seeks only a reconveyance of the remaining seven-sixteenths interest left in him.' They apparently recognize the rule announced in the case of Dixon v. Kaufman, N.D., 58 N.W.2d 797, that a deed obtained by fraud is sometimes void, but more often is merely voidable. Hoffer v. Crawford, N.D., 65 N.W.2d 625, 631.

It is noted that in the plaintiffs’ action there is no offer to restore the consideration paid by the defendant to the plaintiffs. The judgment of the trial court, however, required that the plaintiffs repay or tender repayment of the consideration for the mineral deed.

The plaintiffs, after becoming award of the fact that they had signed a mineral deed, accepted the delay rentals on the oil, gas and mineral lease for 1951, 1952 and 1953.

Between the discovery of the' alleged mistake and the request for cancellation or reconveyance addressed' to the defendant, mineral values had increased materially in McLean County, North Dakota. This is not disputed. It is a fact to be considered in determining whether there was a timely attempt to rescind the contract insofar as that could be done.

In the case of Bauer v. National Union Fire Ins. Co., 51 N.D. 1, 198 N.W. 546, 549, this court held that under Section 5936, Compiled Laws of 1913, now Section 9-0904, NDRC 1943, requiring rescission on account -of fraud to be promptly made, if mandatory, and if rescission is not prompt-iy made, legal justification or'excuse.for the delay must be shown. In that, case it is said:

“The right to rescind is waived by unexcused delay, although no prejudice or1 injury be shown-as a result thereof. Annis v. Burnham [15 N.D. 577] p. 583, (108 N.W. 549). We think that the respondent, having wholly failed to offer,.any evidence in justification or excuse of the delay of a year in rescinding . the compromise settlement, has not acted with the promptness required by the statute. A delay of four or five months in rescinding, or offering to rescind, after discovering the fraud, has been held to be fatal by the courts of California, construing a statute identical with our own. Gamble v. Tripp [99 Cal. 223, 33 P. 851]; Marten v. Paul O. Burns Wine Co., 99 Cal. 355, 33 P. 1107. See, also, Jordy v. Dunlevie, 139 Ga. 325, 77 S.E. 162. See, also, Annis v. Burnham, supra. There is’ no dispute as to the facts as to whether rescission was promptly made. The general rule then is, as heretofore stated, that the question whether the rescinding party acted with due promptness is one of law for. the court. Black, Rescission & Cancellation, § 547. We are constrained to hold that the attempted rescission by the respondent was not promptly made, and, no excuse having been offered for the delay, was therefore wholly ineffective.”

The facts in the above case disclose that an adjustment was made with' the plaintiff on September 14, 1917, and a draft issued October 18, 1917. Sometime in the spring of 1918 the plaintiff engaged counsel and was at least constructively on notice of the alleged fraud. He claims, however, that he was not aware of the fraud until the defendant answered in August of 1918, which was about eight months before the attempted rescission took place.

In the case of Kramer v. K. O. Lee & Son Co., 61 N.D. 28, 237 N.W. 166, 171, this court again indicated that promptness was essential in an attempt to rescind á contract and that the plaintiffs in that case had not rescinded promptly as required .by the statute. The contract involved in that case was dated March 16, 1927, and the facts show that no attempt at rescission was made until February of 1928, which the court says was “months after they (the plaintiffs) discovered the breach of warranty claimed and after the time they say they abandoned the use of the tractor.” The diligence or promptness required to rescind upon discovering the facts, under our statutes, is the same whether the party attempting to rescind relies upon the ground of mistake, duress, menace, fraud or undue influence.

Where a party desires to rescind a contract upon the ground of mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. 9 Am.Jur., Cancellation of Instruments, Sec. 45, page 389.

The plaintiffs offer as excuses for the delay, the fact that they were living in Minot during the winter of 1950-51; that the. winter was bad and the roads were blocked; that their attorney was located at .Garrison; and that they had unsuccessfully attempted to contact Mr.' Braun at Turtle Lake.

We take judicial notice of the fact that there are railroad, telegraph, telephone and other facilities for business between Minot, Garrison and Turtle Lake. Section 31-1002, subsection 33, NDRC 1943. We also take judicial note of the •fact that there are good highways between Minot, Garrison and Turtle Lake and that the distances are not too great. Section 31-1002, subsection 49, NDRC 1943; and that there is general certainty that matter carried through the mail will .reach its proper destination. Section 31-1002, subsection 50, NDRC 1943. The excuses for the delay offered by the plaintiffs are insufficient. . From the discovery of the mistake to the date of the bringing of the action by these plaintiffs covers a period of over two years. There was a delay of a year and four months after the plaintiffs were fully aware of their rights to rescind the mineral deed. In the meantime the plaintiffs did accept the delay rentals, for the oil, gas and. mineral lease, that part of .the transaction ■.which they do not challenge. The oil, gas and mineral lease and the mineral deeds were signed at the same time. One consideration was given therefor.

Delay in commencing suit may he excused where there is some good reason, excuse or explanation for it. -But. something more is required than continued assertion of a claim unaccompanied by any act to give effect "to it. 12 C.J.S., Cancellation of Instruments, § 51 b, p. 1025.

In the case of Daniel v. Hamilton, N.D., 61 N.W.2d 281, an action for the purpose of cancelling certain oil, gas and mineral leases executed by the plaintiffs, this court held that the plaintiffs had waived their right of rescission and cited authorities to support that conclusion.

• Presumably Phillip Fedorenko discovered the mistake when he examined and looked at the copies of the instruments that had been left with him by the agent of the defendant and found that he and his wife had signed a mineral deed. That at least was sufficient to require him to make ■an inquiry. He did make an inquiry of his banker. He was- advised to consult a lawyer. He did consult a lawyer in Minot who directed him to his State’s Attorney. He did not attempt to see his State’s Attorney for approximately nine months thereafter. If he did not have complete knowledge of his rights up to ’that time, he certainly had complete knowledge of his rights when he consulted his attorney sometime in May or June of 1951. No attempt was made to rescind the contract by any formal action until at least one year and four months thereafter. While no fixed rule can be laid down as to the time within which a person may rescind a contract, as what may be prompt rescission in one case, would not always be so under the facts of another. But under the facts and circumstances of this case, we think that the plaintiffs did not act promptly upon discovering the ' facts which entitled them to rescind and that they waived their right .of rescission,

The judgment of the trial court is reversed and the plaintiffs’ action dismissed.

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


source: Caselaw Access Project

author: AMUNDSON, District Judge. '

license: Public Domain

text:
    L. E. IMUS, Plaintiff and Respondent, v. Arthur F. HUBER, Defendant and Appellant.
    No. 7480.
    Supreme Court of North Dakota.
    July 8, 1955.

      Rausch & Chapman, Bismarck, for appellant. , ,
    J. K. Murray, Bismarck,- for respondent.
   AMUNDSON, District Judge. '

The plaintiff sued the defendant for damages to his automobile caused by the alleged negligence of the defendant. Defendant answered denying negligence on his part and counterclaimed for damages to his automobile caused by plaintiff’s alleged negligence.

This action was tried to the court, without a jury, resulting in a judgment for $249 in favor of the plaintiff. Defendant has appealed and asks -for a trial de novo.

The defendant attacks the sufficiency of the evidence to establish, (1) defendant’s negligence; (2) the amount of. damages.

The evidence shows that the plaintiff was driving his 1937 Dodge two door sedan east on Avenue C in the. City of'Bismarck, North Dakota; that the. defendant was driving west on said Avehue C in his 1948 Studebaker sedan; that-the two cars collided at the intersection of . Avenue C and Sixth Street at about 6:39 P.M. on the 5th day of December, 1953, a short distance west of the east pedestrian lane of Sixth Street. Avenue C runs east and west and Sixth Street north and south. Avenue C is 28 feet wide.

After the collision plaintiff’s automobile faced east near the south curb of Avenue C, and was badly damaged from the left front door to the rear. Defendant’s automobile faced southwest, with its front wheel turned to the left, the left front wheel bent, the left front tire flat with' a large gash in it; and was damaged at the left'front end. There was debris and glass directly in front of defendant’s automobile, about S to 5½ feet to the south of the centerline of ! Avenue C. • Defendant’s automobile was at least 3½ feet over the centerline in .the south lane of Avenue C, according to defendant’s own testimony. Defendant testified that his automobile stopped immediately upon the impact.

. There was no evidence establishing negligence or contributory negligence on the part of the plaintiff.

The statutes provide that a vehicle shall be driven on the right half - of .the highway, upon all highways of sufficient width, Section 39-1001, RCND 1943; when crossing intersections, Section- 39-1002; . and when meeting vehicles proceeding in the opposite direction, Section 39-1003.

The evidence shows that the defendant was violating the above statutes or that he did not have-his automobile under-proper control. Boll v. Gruesner, 42 S.D. 528, 176 N.W. 517. Violations of statutory rules of the road and safety are evidence of negligence. Spenningsby v. Peterson, N.D., 67 N.W.2d 913; Knudson v. Arendt, N.D., 56 N.W.2d 340.

The measure of damages for injury to an automobile is 'the difference in. market value immediately before and immediately after the accident,-if there ⅛ a market value. Harmes v. Markham, N.D., 60 N.W.2d 267. If there is no market value, the question to be determined is, what is the value. There was no evidence to show that there was a market where, “ ‘other property of the same kind must have been the subject- of purchase or sale to so great an extent and in so many instances that the value becomes in a measure fixed.’ ” McGilvra v. Minneapolis, St. P. & S. Ste. M. R. Co., 35 N.D. 275, 159 N.W. 854, 857.

The plaintiff as owner, and without the showing of further qualifications, testified that the value of the automobile immediately before the collision was $300 and immediately after the collision was $10. He was competent to so testify. Seckerson v. Sinclair, 24 N.D. 625, 140 N.W. 239; George v. Odenthal, 58 N.D. 209, 225 N.W. 323; McGilvra v. Minneapolis, St. P. & S. Ste. M. R. Co., supra.

Plaintiff also testified that he expended $155 in repairs on his automobile within three months next preceding the collision and that the lowest bid he received for repairing the, same after the collision was $249. ' ⅞ ...

A local automobile sales manager, with twenty-two years experience in buying and selling used automobiles, but who had never seen the Dodge automobile in question, testified,' as a witness for defendant, that a 1937 Dodge, in excellent condition, was of the market value on the date in question, at Bismarck, North Dakota of $50 to $75.

The amount of damages resulting from the collision herein‘is based upon‘ o'pinion evidence. Ackerman v. Fischer, N,D., 54 N.W.2d 734.

The trial court’s findings are given appreciable weight and its -findings both on the question of negligence and damages are amply sustained by the evidence. Belt v. Belt, 75 N.D. 723, 32 N.W.2d 674; Gussner v. Mandan Creamery & Produce Co., N.D., 51 N.W.2d 352.

The judgment is affirmed. ,

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

JOHNSON, J., did not participate; ■


author: SATHRE, Judge.

text:
    STATE of North Dakota, Plaintiff and Respondent, v. Kenneth K. PYLE, Defendant and Appellant.
    Cr. 260.
    Supreme Court of North Dakota.
    July 8, 1955.
    Rehearing Denied July 26, 1955.

      Francis Murphy, George E. Duis, Fargo, for . defendant and appellant.
    Paul Benson, Atty. Gen., of North Dakota, Lee F. Brooks, State’s Atty. of Gass County, Fargo, for plaintiff and respondent.
   SATHRE, Judge.

This' is an appeal from a judgment rendered by the county court o.f Cass County, •the same having increased civil and criminal jurisdiction, finding the defendant guilty of violating Section 12 — 1006 NDRC 1943, which reads as follows:

“Every public officer authorized to ■sell or lease any property, or make any ■contract in his official capacity, who -voluntarily becomes interested individually in such sale, lease, or contract, directly or indirectly, is guilty of a misdemeanor.”

The charging part of the information is ;ás follows:

“That heretofore, to-wit: On or about the 20th day of July 1953, in Barnes Township in the county of Cass and State of North Dakota the said ■ defendant Kenneth K. Pyle being then •and there a public officer, to-wit: A .member of the township board, of .Barnes Township, Cass County, North Dakota, .and in such capacity authorized to make contracts for said township in. his said official capacity, did wilfully, and voluntarily become interested directly, in a contract of said township, in that at said time and place the said defendant received payment in the sum.of1 three hundred thirty-seven and no/100 dollars ($337.00) from said township for mowing, .blading, ánd bulldozing work upon the highways of said township;
“This against the Peace and Dignity of the State of North Dakota, and contrary to the form of the Statutes in such case made and provided.”

The defendant was tried to the court and a jury. The jury returned a verdict of guilty and judgment was entered thereon and a fine imposed upon the defendant. Thereafter the defendant made a motion for a new trial. The motion for a new .trial was heard before the county court- on June 10, 1954 and after such hearing the motion was denied.

The defendant appealed from the order denying a new trial and from the judgment.

The specifications of error may be stated as follows and were argued together in defendant’s brief.' ■ ■ ■

“1. That the Court erred in denying the Defendant’s motion to quash the information before the. trial of this case.
“2. That the Court erred in overruling and denying the motion by the Defendant in arrest of judgment.
“3. That the Court erred in denying the Defendant’s-motion for a'judgment of acquittal at the close of all of- the evidence.
“4. .That.the Defendant was not. proven guilty beyond a reasonable doubt, and that the evidence is insufficient to support the verdict of guilty.
“5. That the evidence -fails to show that the Defendant did- voluntarily enter into any contract as the Statute requires.
“6. That the Court erred in instructing the jury as to the meaning of the word voluntary.”

We will consider the specifications in the order argued in defendant’s brief.

The first contention of the defendant is that the information does not allege facts sufficient to constitute a public offense under Section 12-1006 for reason that the language used in said, section is in the singular form; that under the statute he cannot enter into a contract as an individual officer and that at least a majority of the board is necessary to make a contract. We see no merit in his contention. The -defendant was a member of the board and as such member -he was a public officer and while such officer he entered into a-contract with the majority of the board of supervisors of Barnes Township on behalf of the partnership of which he was a member. Clearly the contract was in violation of Section 12-1006 NDRC 1943.

. The next contention of the defendant is that the evidence was insufficient to support the verdict.

There is no dispute as to the facts in this case. The defendant had been a member of the board of supervisors of Barnes,Township, North Dakota for a period of twelve years, and was Chairman of the Board at the time of the alleged offense charged in the information.

State’s exhibit “A” shows that K. K. Pyle and Son performed labor on the highways of Barnes Township between. June 26th, 1953 and-July 10, 1953 for which they were paid the sum of $337. It is admitted the K. K. Pyle or Kenneth K. Pyle the defendant herein and his son are partners and that the partnership performed the work as shown by state’s exhibit “A” and received the payment therefor. State’s exhibit “B” is the warrant issued by the clerk of Barnes Township in the sum of '$337 payable to K. K. Pyle-and Son and approved by Kenneth K. Pyle as Chairman of the Board of Supervisors. State’s exhibit “C” is a check drawn by M. J. Nelson, treasurer of Barnes Township in the sum of $337 payable to K. K. Pyle and Son, dated July 20, 1953 and endorsed Pyle & Son, by Kenneth Pyle. It is admitted that state’s exhibits “A”, “B” and “C” all relate to the same transaction and constitutes a statement of the services rendered by Kenneth K. Pyle & Sons and the payment therefor by Barnes' Township.

It is claimed by the defendant that the services performed were not his voluntary act, but were performed at the insistence of the other members of the board and that therefore he was not guilty under the statute.

There is no evidence in the record that the other members of the board exerted any coercion upon the defendant, nor is there any evidence that the defendant offered any resistance to accepting the contract involved here. His testimony in this respect is: “I have told them (members of the board) many times that I would just as soon not do it if they could get somebody else.”' This testimony shows that he was willing to do the work for the township if they could not get-somebody else and certainly it cannot -be said that he performed the work under compulsion or coercion. -

The state introduced in evidence as exhibits several statements of similar services performed by Kenneth Pyle and Son for Barnes Township between April 23, 1953 and November 11, 1953. These exhibits show that warrants and checks in sizeable amounts were issued to Kenneth Pyle, and Son in payment of said services. The defendant objected to the introduction ■ of these exhibits as prejudicial, but they were admitted solely for the purpose of showing a series of similar transactions between the defendant and.Barnes Township, and that the services involved here were not accidental or involuntary or performed under stress of urgent circumstances.

The' work done by the defendant as shown by exhibit “A” consisted of what is known as blading, that is scraping and leveling grades- of the highways of the township, cutting of weeds along the highway ditches and “dozing” which would mean bulldozing or pushing of dirt along the highway.

It is next contended that Section 12-1006 NDRC 1943 does not apply to township officers or supervisors of a-township, and that the only statute applicable to township officers is Section 58-0512 NDRC 1943 which is as follows:

“No township officer shall become a party to or be interested directly or indirectly, in any contract made by the board of which he is a member. Every contract or payment voted for or made contrary to the provisions of this section is void. Any violation of this section shall constitute ’ malfeasance in office which will subject the officer so offending to removal from office.”

We are unable to agree with this contention. While Section 58-0512 does apply specifically to township officers, nevertheless such officers are also subject to the provisions of said Section 12-1006 which applies to all public officers. Section 12-0801 is a part of Chapter 12-08 NDRC 1943 and is as follows:

“The various provisions of this chapter which relate to executive officers apply in relation to administrative officers in the same manner as if administrative and executive officers both were mentioned together.”

Section 12-0804 NDRC 1943 of the same Chapter provides:

“In addition to the penalty affixed by express terms to every neglect or violation of official duty on the part of public officers, county, city, village, township, or state officers not liable to impeachment may be removed from office, in the discretion of the court, even though the statute defining the neglect or violation does not so provide.”

The statutes quoted must be construed together, and when so construed apply to all public, executive or administrative officers of the state not subject to impeachment.

Finally defendant contends that the trial court erred in refusing to give the following, requested instruction as to the meaning of the word “involuntarily”«

“The law provides and the informa'tion alleges'that the Defendant entered into the contract' described- in the information voluntarily. In this relation I charge you that the word voluntarily as used in the statuté -means without coercion or pressure of circumstances. And I charge you that -before you can find the Defendant guilty of the offense alleged in the information you must find first; beyond all reasonable doubt, that' he' did the things and acts set out in the information without the coercion or pressure of circumstances or emergencies; in other words, that he did them of his own volition.”

Instead of giving the requested instruction the court instructed the jury as follows:

“The word voluntarily as used in the statute means an act done or performed willingly or intentionally as distinguished from being done under compulsion or coercion. It means that the Defendant must have become interested in the contract with the Township Board willingly and not under duress and not under any legal obligation to do this work. It carries with it the idea of freedom from constraint as opposed to being accidental or inadvertent.”

We think the instruction given by the trial court was proper and that it correctly defined the word “voluntarily” as the same is used in the statute and that the defendant was not prejudiced thereby. Under the instruction given it was the province of the jury to determine from the evidence whether the contract involved was entered into voluntarily or involuntarily by the defendant.

As we have pointed out herein there is no dispute as to the facts in this case and we are satisfied that the evidence is sufficient to support the verdict. The defendant entered into a contract on behalf of a partnership of which he was a member with the other two members of the board to do the work upon the highway of the township. He was chairman of the board and he signed the warrants issued by the clerk and accepted the checks issued by the treasurer in payment of the work done, although he testified that he did not know or was not aware of the fact that there was a law such as Section 12-1006. However it is a well-established rule that ignorance of the law excuses no one and it follows therefore that defendant’s ignorance of the existence of Section 12-1006 was not a defense to the offense with which he was charged. In the case of Wess v. South Dakota Packing & Shipping Co., 43 S.D. 467, 180 N.W. 510, 511, the court said:

“It seems to be generally held that the Legislature, in the exercise of the police power may prohibit, under criminal penalty, the performance of a specific act. The doing of the prohibited act constitutes the crime, and the purity of the motive by which the act is prompted, and the knowledge or ignorance of its criminal character, are immaterial on the issue of guilt.”

The county court properly denied defendant’s motion for a new trial and the judgment is affirmed.

BURKE, C. J., and MORRIS, GRIM-SON and JOHNSON, JJ., concur.


author: MORRIS, Judge.

text:
    CITY OF BISMARCK, Plaintiff and Respondent, v. C. D. ANDERSON, Defendant and Appellant.
    Cr. 268.
    Supreme Court of North Dakota.
    July 26, 1955.
    Frederick E. Saefke, Jr., Asst. City Atty., Bismarck, for plaintiff and respondent.
    Daniel J. Chapman, Bismarck, for defendant and appellant, W. J. Austinj Bismarck, of counsel.
   MORRIS, Judge.

The defendant was convicted in the court of the police magistrate of the City of Bismarck of committing the offense of disorderly conduct by wilfully and unlawfully making “a disturbance and noise contrary to the City Ordinances of the said City.” Upon demand of defendant trial was had before a jury which returned a verdict of guilty. The defendant appealed to the District Court of Burleigh County where he was again found guilty hy a jury. He now appeals to this court from that conviction and from an order of the district court denying him a new trial. The defendant specifies certain alleged errors at law occurring at the trial and the insufficiency of the evidence to justify the verdict.

On Sunday, February 14, 1954, the defendant was the proprietor of a neighborhood grocery. One Standley was indebted to him for a grocery bill of about one hundred dollars. The defendant had loaned Standley ten dollars and as security for this loan had pledged and delivered to the defendant a suitcase and its contents. Stand-ley was also the owner of an automobile for which he had been unable to buy a license due to his stringent financial circumstances. Standley turned possession of his automobile over to tire defendant and parked it on the defendant’s property near the grocery store. Anderson testifies that it was mutually agreed that the automobile was pledged as security for the grocery bill and that Standley was favored by having it stored in a place where it would not be picked up by the police for not having a current license. Standley appeared at the defendant’s grocery store and stated that he was going to take his car and overhaul it. The defendant refused to yield possession. Standley placed the pledged suitcase in the car. A dispute ensued. Both Standley and the defendant called police headquarters. Police Officers Bossert and Reile were called by radio and directed to proceed to the scene of the dispute. The officers arrived at about 12 ;30 p. m. Bossert testifies that when the police arrived Anderson and Standley were in a hot argument. Their voices were not too loud but were above normal. He also stated they were cussing. But it appears that the swearing was all being done by Standley. Each of the disputants appealed to the police and were told that the right to possession of the car was a private matter requiring private legal advice. The dispute continued. They were told to quit arguing, but the argument still continued. Standley went into the grocery store to call a wrecker to remove the car and Anderson let the air out of two tires on the automobile after being told to desist by the officers. The argument again flared up. Bossert called police headquarters for instructions, pursuant to which he arrested both men and brought them to the police station. Standley pled guilty to using foul and indecent language in a public place.

Officer Reile was present during the entire altercation and his testimony generally corroborates that of Officer Bossert. The altercation did not attract the attention of any persons in the neighborhood. A lady who was living in an apartment in the basement of the store building within twenty-five feet of tire place where most of the argument occurred did not hear any loud, rude, obscene, or objectionable talk. Neither of the officers talked to anyone who was disturbed by what happened. The only language of an unseemly nature used by Anderson was, according to the testimony of Officer Reile, uttered under these circumstances : After Anderson had let the air out of the tires, Reile says: “ I went back to sit in the Squad Car, and in the meantime Mr. Stanley come out to the Squad Car and Mr. Anderson come back there and Stanley kept insisting that he wasn’t going to leave the car there. * * * Mr. Stanley come back out and come up to the window on Officer Bossert’s side and he insisted he was going to move that car. * * * He said he was going to take it, and Mr. Anderson stated then, ‘That is the kind of a cheap son-of-a-bitch that can get away with it.’ ” Bossert also says Anderson made that statement. Officer Reile’s testimony further discloses the following:

“Q. You were present during the entire event of this, weren’t you?
“A. Yes.
“Q. Were you disturbed by the tone of voice or the conversation, or anything else that happened at that time?
“A. Yes, sir.
“Q. What caused you to be disturbed, Officer Reile ?
“A. I don’t like people arguing in my presence. It bothers me.”

The foregoing constitutes the only testimony in the record that any person was disturbed by what occurred. The complaint was signed by Reile.

The defendant denies using the language attributed to him by the officers. Standley was not a witness but it was stipulated that if present he would testify that he did not hear the defendant use the objectionable language or any similar language. Under the circumstances it may be presumed that the remark was made to the police officers and that they were the only ones who heard it. Neither of them testifies as to the tone or volume of Anderson’s voice when the remark was made. It created no disturbance.

The ordinance which the defendant is charged with having violated provides:

“Disorderly Conduct: What shall constitute: Any person guilty of any of the following acts within the limits of the City of Bismarck shall be guilty of disorderly conduct: * * *.”

Then follow sections having no bearing upon this case. It is then provided:

“ (2) Disturbing Peace. Any person who shall make and countenance, or assist in making, noise, disturbance or improper diversion, and all persons who shall collect in bodies or crowds in the city, for unlawful purposes, or to the annoyance or disturbance of citizens or travelers.”

It is specifically charged in the complaint that the defendant did “make a disturbance and noise.”

The particular paragraph of the ordinance which the defendant is charged to have violated is headed “Disturbing Peace.” In Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851, 852, it is said:

“A disturbance of the peace may be created by any act or conduct of a person which molests the inhabitants in the enjoyment of that peace and quiet to which they are entitled, or which throws into confusion things settled, or which causes excitement, unrest, disquietude, or fear among persons of ordinary, normal temperament. Such acts to come within the purview of the ordinance must be voluntary, unnecessary, and outside or beyond the ordinary course of human conduct.”

In Platt v. Greenwood, 50 Ariz. 158, 69 P.2d 1032, 1034, it is said of disturbing the peace that

“This offense occurs where a person maliciously and willfully disturbs the peace or quiet of any neighborhood, family, or persons by loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting, or who applies any violent, abusive, . or obscene epithets to another.”

The term noise as used in the ordinance means something more than audible sound. Some noises are agreeable and others are disturbing. A noise to be a violation of the ordinance must be of such nature as to disturb the community or persons in the vicinity. State v. Cantieny, 34 Minn. 1, 24 N.W. 458; City of St. Charles v. Meyer, 58 Mo. 86; Flores v. City and County of Denver, 122 Colo. 71, 220 P.2d 373; McQuillin, Municipal Corporations, 3rd Edition, Section 24.102.

The evidence does not warrant the jury in finding the defendant guilty of making a disturbance and noise within the meaning of the ordinance. It is therefore insufficient to support the verdict. The judgment appealed from is reversed and the trial court is directed to dismiss the action.

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


author: BURKE, Chief Justice.

text:
    T. M. CASEY, Plaintiff and Respondent, v. S. W. CORWIN et al., Defendants, and S. W. Corwin and State of North Dakota, Defendants and Appellants.
    No. 7425.
    Supreme Court of North Dakota.
    July 26, 1955.

      E. T. Christianson, Atty. Gen., C. E. Brace, Asst Atty. Gen., Vernon R. Peder-son, Sp. Asst. Atty. Gen., for appellant.
    John A. Zuger and Charles L. Foster, Bismarck, for respondent Casey.
    Cox, Cox, Pearce & Engebretson, Bismarck, for respondent Corwin.
   BURKE, Chief Justice.

Plaintiff brought this action to quiet title to lots 1 to 5 inclusive in Block 51 of Governor Pierce Addition to the City of Bismarck. The defendant Corwin and the defendant State of North Dakota filed separate answers. Each claimed an interest in the described lands. After a trial in the District Court of Burleigh County, the Court determined all issues raised in favor of the plaintiff and a judgment was thereupon entered adjudicating that the answering defendants had no right, title or interest in the property and quieting title thereto in the plaintiff. The answering defendants have taken separate appeals from the judgment and have demanded a trial de novo in this court.

The lots in question were acquired by Burleigh County in 1927. On July 30, 1932, Burleigh County deeded these lots, together with other lots, to the defendant, Corwin. On March 24, 1933, Corwin obtained a judgment quieting the title to said lots in him. Burleigh County was a defendant in this action to quiet title and the judgment decreed that the county had no right, title or interest in the described lots. On October 6, 1933, Burleigh County gave a quitclaim deed to these lots to E. M. Casey. Casey’s deed was filed for record in the office of the Register of Deeds of Burleigh County on November 15, 1933, Corwin’s deed and a certificated copy of his judgment quieting title were filed for record in the office of the Register of Deeds on December 14, 1933. In 1939, E. M. Casey deeded the lots to T. M. Casey, the plaintiff,, in this action. The defendant, State of North Dakota, claimed title to a portion of the lots by prescription. This claim arose out of the fact that for more than twenty years prior to 1949, Highway 10, a State and Federal Highway traversed a portion of these lots.

We shall direct our attention first to the claim of the State. With respect to this claim, the evidence is undisputed that for at least 50 years prior to 1949 a highway of some sort crossed these lots, entering on the north side thereof and proceeding in a southeasterly direction to the- east side of lot 1. It eventually became a part of the main highway to the east out of Bismarck, and in 1927, it was designated a Federal Highway. The testimony is unsatisfactory' as to the width of the highway. The only evidence is that in recent years the traveled portion was surfaced with "black top” and was 22 feet wide. There is no evidence as to the width of the- shoulders beyond the surfaced portion of the highway or as to the width of the ditches, although there is some evidence that there were ditches. In 1949, Highway 10 was relocated. As relocated it does not cross the lots in question but runs parallel with and contiguous to their north boundary line. The old highway across these lots was then completely obliterated. The “black top” surfacing was removed, the .ditches were filled and the ground was leveled so that no remaining trace of it could be seen. Upon this evidence the State claims title in fee by prescription to a strip of land 66 feet wide or 33 feet on each side of the center line of the old highway. In opposition to this claim, the other parties urge that the State had only an easement for highway purposes over the lots and in 1949 abandoned that easement.

There is no evidence whatever in the record that this highway was .established by any means other than by prescription. Section 24-0701, NDRC 1943, provides :

“All public roads and highways within this state which have been or which shall be open and in use as such, during twenty successive years, hereby are declared to be public roads or highways and confirmed and established as such whether the same have been laid out, established, and opened lawfully or not.”

While the state has the power under the provisions of Chapter 159, Laws of N.D. 1927, Sec. 24-0117, NDRC 1943, to acquire title in fee to rights of way for highways, the rule has long been established in this state that' highways and streets dedicated by plats or section line reservations vest the public with no more than an easement for highway purposes. Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 58 L.R.A. 775; Northern Pac. Ry. Co. v. Lake, 10 N.D. 541, 88 N.W. 461; Gram Const. Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 36 N.D. 164, 161 N.W. 732; Otter Tail Power Co. v. Von Bank, 72 N.D. 479, 8 N.W.2d 599, 145 A.L.R. 1343; Rutten v. Wood, N.D., 57 N.W.2d 112, 113.

In Rutten v. Wood, supra, we quoted with approval from 25 Am.Jur. 426, as follows.:

“ ‘In the absence of a statute expressly providing for the acquisition of the fee, or of a deed from the owner expressly conveying the fee, when a highway is established by dedication or prescription, or by the direct action of the public authorities, the public acquires merely an easement of passage, the fee title remaining in the landowner.’ ”

It is clear therefore that under the established law of this State, the interest acquired by the public across the lots involved in this litigation was only an easement of passage. All other interest in the property remained in the owner of the fee. Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 58 L.R.A. 775; Rutten v. Wood, N.D., 57 N.W.2d 112.

It is claimed by Casey and Corwin that the relocating of Highway 10 and the acts of the State Highway Department upon the old right of way of the highway across these lots constitute an abandonment of the old right of way.

By the provisions of Chapters 24-01 and 24-02, NDRC 1943, the State Highway Department is given exclusive control over the state highway system. Other highways in the state are under the control of the counties and municipalities. Chapters 24— 07 and 40-39, NDRC 1943. The power to vacate highways, outside of the limits of incorporated cities and villages is vested in boards of county commissioners. Sec. 24 — 0704, NDRC 1943. In incorporated cities the power is vested in the governing board thereof. Sec. 40-3907, NDRC 1943.

A consideration of the applicable statutes leads us to the conclusion that while the State Highway Department has the power to include highways within the state highway system and exclude others from it, it lias no power to vacate a highway which has been established-and over which the public .has acquired a right, of passage. The only effect which the relocation of a highway by the State Highway Department can have therefore is to detach the old highway froto the state highway system. The old highway remains as a public way within the control of the governing board of the territory in which it lies. Hillsdale Co. v. Zorn, 187 Okl. 38, 100 P.2d 436.

Here the acts which it is claimed constitute an abandonment of the old highway across the lots in litigation are the acts of the State Highway Department. The record discloses that these acts were performed under the mistaken belief that the state held fee title to the land over which the highway passed and that the land was available for use by the department for uses" other than highway use. It was the intention of the department to use the land as a storage depot.

The part of the old highway in question is wholly located within the limits of the City of Bismarck. When it was detached from the state highway system, it reverted to the control of the governing body of the city. The acts of the Highway Department, made under a mistake of fact, in rendering the highway unsuitable for use as a highway were wholly beyond the power of the department' and do not bind either the city or the public.

Furthermore, the claimed acquiescence by the public in the abandonment of the old highway cannot be construed to be more than a mere nonuser. The public had no free choice. Its exclusive use of the new routes..provided was forced upon it by the acts of the Highway Department.

Section 24-0731, NDRC 1943, provides that nonuse, of a highway laid out by authority of the county commissioners, for a period of ten years shall vacate the highway. There is no like provision relating to public ways within a city. Since however the right of way was acquired by prescription we think Section 47-0512, subd. 4, NDRC 1943,: applies to this situation. That section provides:

'“A servitude is extinguished: * * *
“4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for. the period prescribed for acquiring title by prescription.”

Under the provisions of Section 24-0701, NDRC 1943, the period prescribed for establishing a highway by prescription is twenty years. Since the nonuse in this case had only continued for about four years prior to the commencement of this action we are satisfied that the easement of the public for a highway over these lots has not been extinguished.

There remains for consideration the controversy between the plaintiff Casey and the defendant Corwin. While Corwin’s deed was executed first, Casey’s was first of record and he claims that Corwin’s deed is void against him under Section 47-1941, NDRC 1943, which provides:

“Every conveyance of real estate not recorded as provided in section 47-1907 shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any part or portion thereof, * * * »

The defendant Corwin’s first contention is that the judgment entered in the quiet title action, which decreed that Burleigh County had no interest in the land conveyed by the County to Corwin is binding upon the plaintiff as a privy of Burleigh County.

The plaintiff concedes that as a grantee of the County subsequent to the entry of the judgment against it, he is in privity with the County. He also concedes that, in the absence of a statute to the contrary, he would be bound by the judgment. Such concessions- are in accord with the general rules. 50 C.J.S., Judgments, § 810, p. 357, 30 Am.Jur., Judgments, Sec. 226, p. 959; Hillsboro Nat. Bank v. Ackerman, 48 N.D. 1179, 189 N.W. 657; Gerwein v. McDonnell, 54 N.D. 509, 209 N.W. 986.

Plaintiff urges, however, that as to subsequent purchasers in good faith, this rule has been abrogated by the recording statute. Chapter 47-10, NDRC 1943. He says that Section 47-1941, supra,, which provides that a prior unrecorded deed is void as against the recorded deed of a subsequent purchaser, in good ’ faith and for value, settles the case. He urges that his good faith cannot be impugned by notice because the record shows he liád no actual notice of the judgment and because constructive notice cannot be attributed to him, with respect to a judgment which has neither been docketed in the office of the clerk of court nor recorded in the office of the register of deeds. He points out that Section 47-1902, NDRC 1943, permits the recording of certified copies of judgments affecting the title to real estate’ and argues that such permission implies that such recording is necessary to give constructive notice of a judgment, unless it be, a money judgment which has been docketed pursuant to Section 28-2013, NDRC 1943.

We are of the opinion that the position taken by the plaintiff cánnot be sustained. Our statute permits judgments to ’be recorded but does not require their recording as the statutes of some states do. In the absence of a statute affirmatively and clearly requiring the recording of judgments, we do not think that any notice other than that which may be deemed to be given by the entry of a judgment is essential to bind a privy of the party against whom the judgment was entered.

In Freeman on Judgments, 5th ed., Section 439, it is said:

“ * * * One who, by purchase or otherwise, has succeeded to an estate or interest, real or personal, is to that extent in privity with his predecessors in interest, and is therefore entitled to the benefits and subjected to the disadvantages which by operation of final adjudication, had attached to the property in the hands of its former owners. This rule is not dependent upon the docketing or recordation of the judgment and statutes governing lis pendens notice Jtave no application tó judgments rendered before the transfer.” (Emphasis supplied.)

In Steinman v. Clinchfield Coal Corp., 121 Va. 611, 93 S.E. 684, 691, the Court stated:

. “The court is of the opinion, however, that .parties to judgments and decrees, and their privies, are, in the absence of statute requiring recordation bound by said judgments and decrees, without' any other notice than that furnished by the proceeding itself.”

This question was considered at length in Sheridan v. Andrews, 49 N.Y. 478, 481, wherein it was said:

“The docketing under the act of - ■ 1840 in the county clerk’s office was not essential to the conclusiveness of the judgment. Such docketing is only required for the purpose of making a money judgment a lien upon the real estate of the debtor, and as a prelim- ’ inary to 'the issuing of an execution. This judgment is not sought to be enforced as a lien, but is set up as an estoppel.
“The material point of inquiry is whether the defendants are persons claiming from or through Jackson, by title accruing after the commencement of the action against him. If they are, the judgment is conclusive upon them as to the plaintiff’s title.”

In this case it was also said:

“It never was pretended that any notice was necessary to render the judgment effectual as against parties claiming under the defendant by transfer subsequent to the judgment. Campbell v. Hall, 16 N.Y. [575] 579, 580. The judgment disposes of the rights of the parties and is a matter of public record. Its effect cannot be impaired by a subsequent transfer by the defendant. He is concluded by it and his . grantee cannot be in any better situation than the party from whom he obtained his right. Bacons Abr. Evidence, f. The recording acts have no relation to the subject.” (Emphasis supplied.) See also Smith v. Kessler, 22 Ida [ho] 589, 127 P. 172; Whitford v. Crooks, 54 Mich. 261, 20 N.W. 45; Eakin v. McCraith, 2 Wash.T. 112, 3 P. 838.

Since the judgment quieting title in the defendant, Corwin, was binding upon the plaintiff in so far as the property described in that judgment was concerned, title must be quieted in the. defendant, Cor-win, as to that property. However, both Corwin’s deed from the county and his judgment quieting title specifically excluded from their operation the land upon which the old right of way of Highway 10 was located. Casey’s deed on the other hand included all of the land in question including the right of way of Plighway 10. He thus acquired fee title to the highway subject to the public’s easement of passage;

The judgment of the district court is therefore reversed. The case is remanded to the district court with directions to enter a judgment quieting title in the defendant Corwin to the land described in his deed from Burleigh County and in the plaintiff Casey, to the land upon which the old right of way of Highway 10 was 'located subject to the easement for highway purposes.

GRIMSON, MORRIS and SATHRE, /J., concur.

JOHNSON, J., did not participate.


author: JOHNSON, Judge.

text:
    In the Matter of the Estate of Martin KASPARI, Deceased. Inez Mae KASPARI, Petitioner-Respondent, v. Charlotte DEVER, Shirley Blake, Margaret Jacobson, Barbara Henderson, Sally Jo Kaspari, Susan Lois Kaspari, and W. R. Sandager, Special Guardian of Sally Jo Kaspari and Susan Lois Kaspari, minors, Respondents, Charlotte Dever, Shirley Blake and Margaret Jacobson, Appellants.
    No. 7501.
    Supreme Court of North Dakota.
    July 26, 1955.

      Jacque Stockman and J. E. Hendrickson, Fargo, for appellants.
    Clarence G. Mead, Lisbon, for petitioner, respondent.
   JOHNSON, Judge.

This appeal involves two orders entered by the County Court of Ransom County, North Dakota, allowing the final report and account of the Executrix of the Martin Kaspari estate and an order allowing a petition for partial distribution of the estate to the widow of Martin Kaspari, deceased, Inez Mae Kaspari.

The appeals from these two orders to the district court of Ransom County, North Dakota, were taken at two different -times. They' were heard at separate times in the. district court. On the second, appeal a stipulation was entered into in open court “that the court (district court) may hear both appeals and determine all the matters set forth, in the two appeals, and that it may be tried as one action.’1 (Emphasis supplied.)

Pursuant to this stipulation the district court rendered its decision and the findings of fact and conclusions of law and judgment thereon were .entered as though there had been only one action or one appeal involved in the district court. Where several causes are consolidated and a single judgment is, rendered^ such judgment may be reviewed on a single appeal. 3 Am.Jur., Appeal and Error, Section 415, p. 138.

The district court found for the- respondent, Inez Mae Kaspari. •■The appeal to this court is based on the judgment -entered by the district court. A trial de novo has been demanded.

Martin Kaspari died on the 18th dáy of April, 1953. He left suriving him his widow, Inez Mae Kaspari, four daughters by a first marriage, Charlotte Dever, Shirley Blake, Margaret Jacobson, and Barbara Henderson. He also left two daughters of his second marriage to Inez Mae Kas-pari, Sally Jo Kaspari and Susan Lois Kaspari, both minors.

On December 14, 1948, Martin Kaspari executed his last will and -testament,' appointing his wife, Inez Mae Kaspari, executrix thereof without bond. The will was admitted to probate on the 15th day of May, 1953, in Ransom County, North Dakota, and the executrix qualified the same day, and letters testamentary were issued to her. She administered the estate of her deceased husband and filed her final report and account and petition for distribution on the 12th day of November, -1-95-3. The adult respondents in the estate, Charlotte Dever, Shirley Blake; Márgaret Jacobson and Barbara Henderson, signed an appearance and waiver, waiving “the service of any and all citations, papers and notices which would otherwise be required to be given in the course of the administration of the estate of the above named deceased, * * *, and consent that the said estate be administered and final decree of distribution entered therein without further notice or' citation, * *

On the date of the hearing on the final report and account, objections thereto were filed and may be summarized as follows:

1. That the inventory filed in the estate was not a true and correct inventory of the assets of the estate and that the note of James Blake and Shirley Blake, one of the appellants, appraised as an asset of the es-tatej was not an obligation due from Shirley Blake to the estate of her deceased father, and alleging that the note was canceled long prior to his death. Later it was contended that the amount represented by the note in the sum of $4500 was a gift made by the deceased to his daughter.

2. That under the last will and testament the appellant, Shirley Blake, was entitled to receive $1000 of her father’s estate, plus the increased value thereof free and clear of any claim that the note was an asset of, the estate..

3. That a hearing had on the inventory and appraisement filed in the estate was not-authorized by statute.

4. That the deduction of $8,510.97, or half the value of joint tenancy property was improper and that the full value of the joint tenancy property was a part of the estate.

5. That the order allowing the inventory and appraisement be vacated and set aside.

<?. That the estate of Martin Kaspari, deceased, was valued at $75,134.44 and that the difference between said figure and $57,-000.00, the estimate placed upon the value of the estate by Martin Kaspari, deceased, at the time of the execution of his will, be divided equally between the four adult daughters of Martin Kaspari, deceased, three of whom are appellants herein.

7.That the court determine the proportionate share of the four adult daughters of Martin Kaspari, deceased, and order payment thereof as provided by the terms of the last will and testament.

8. That the appellants revoke all waivers and receipts previously signed by them and that the court decree- them null and void; and

9. That the court enter such other and further orders as may be necessary in order to fully protect the rights of the appellants in connection with the administration of the affairs of Martin Kaspari, and the final report and account filed therein.

Specifically, this appeal involves, as it did in the district court, the following orders of the county court of Ransom County:

1. The order allowing the inventory and appraisement of June 17, 1953.

2. Order rejecting the claim of Shirley Blake, dated September 3, 1953.

3. Order allowing the final report and account, dated February 1, 1954.

4. The decree of partial distribution entered March 31, 1954.

The facts in connection with these various orders appearing in the record will be discussed in connection with the disposition made of the issues involved.

The objections to the inventory and ap-praisement center mainly around:

1. The inclusion of the note of James Blake and Shirley Blake for $4500, appraised at $2000 as an asset of the estate.

2. The joint tenancy property, both real and personal, and co-ownership bonds.

At the time of the hearing on the final report and account, it developed that there was an omission to appraise seed grain on the farm at the time of the death of Martin Kaspari, amounting to $862.24. It was agreed and stipulated by the parties that a supplemental inventory and appraisement be made and filed to cover that item. This was done on the 14th day of January, 1954. On February 1, 1954,' the county court allowed the final report and account and found that the total value of the estate of Martin Kaspari, deceased, which included the supplemental inventory filed, amounted to $67,485.71. This was an increase of $10,485.71 over the estimated value of $57,000 made by Martin Kaspari of his property at the time he made, executed and published his last will and testament.

Included in the inventory is real property of the deceased located in Lisbon, North Dakota, the title to which was in the name of Martin Kaspari and Inez Mae Kaspari, as joint tenants and not as tenants in common with the right of survivorship. It was appraised at $4000, which is alleged to have been its full value.

There was on deposit money in the Farmers State Bank of Lisbon, Lisbon, North Dakota, in the name of Martin Kaspari and Inez Mae Kaspari, as joint tenants and not as tenants in common with the right of survivorship, in the sum of $3,055.94.

There were also listed in the inventory United States Savings Bonds, Series E, items 48 through 63 thereof, payable to Martin Kaspari or Mrs. Inez May Kaspari, or Mrs. Inez M. Kaspari, or Mrs. Inez Kaspari, or Mrs. Lucy May Kaspari, whose true name is Inez Mae Kaspari. These were all appraised at their then present value.

The joint tenancy property, both real and personal, and the bonds, were appraised at $17,021.94. At the time of the hearing on the inventory, one-half thereof was included in the estate, or $8,510.97. This sum was deducted from the total inventory value of the property, amounting to $75,134.44, leaving a net valuation of the estate of $66,-623.47, to which was added the value of the property covered by the supplemental inventory, amounting to $862.24, making the total estate of Martin Kaspari $67,485.71.

The attorney for the estate of Martin Kaspari made a record of the contents of the safety deposit box. The appellants attempted to show that there were ■ assets in the estate over, above and beyond those listed in the inventory and appraisement or contained in the list of the contents of the deposit box. None of the appellants, although present, kept a record of the contents thereof. Their testimony is vague, indefinite and inconclusive as to the . contents. The best evidence is the list of the contents prepared by Mr. Mead.

The appellants did not, either in the county court or in the district court, attempt to show that the value of the property as appraised was incorrect. No testimony as to value of any of the property listed in the inventory was produced either in the county court or in the district court except as to the house of Martin Kaspari and Inez Mae Kaspari in Lisbon held in joint tenancy. It is asserted that this house was worth considerably more than its appraised value, but that becomes an immaterial issue as we shall see later. The evidence in the record indicates that all of the property that had come to the knowledge of the executrix, which included real property, joint tenancy property and co-ownership bonds were listed and appraised.

Where Series E Savings Bonds are listed in the name of. two persons as co-owners, and during the lives of both co-owners, a bond so issued will be paid to either co-owner upon request without the signature of the other. If either co-owner dies while the bond remains a valid obligation, the surviving co-owner is recognized as the sole and absolute owner of the bond and entitled to a payment or reissue as though the bond had been registered in his or her name alone. Littlejohn v. County Judge, Pembina County, N.D., 58 N.W.2d 278, 280, 39 A.L.R.2d 690. All of the Series E bonds issued as set forth, remaining unpaid at the time of the death of Martin Kaspari, became the sole and absolute property of Inez Mae Kaspari. Hence the inclusion of one-half of their value in the inventory favored the appellants and augmented the estate to their benefit..

As to the joint tenancy deposit in the Farmers State Bank, under Section 6-0366, NDR.C 1943, it was payable to either or the survivor. , ■

The joint tenancy real property, consisting of the home in Lisbon, became the property of Inez Mae Kaspari upon the death of Martin Kaspari.

“A joint interest is one owned by several persons in equal shares by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants.” Section 47-0206, NDRC 1943.

This property passed to the widow by right of survivorship and not by the will. See In re Mechler’s Will, 246 Wis. 45, 16 N.W.2d 373.

“In the ancient language of the common law, joint tenants were said to hold per my et per tout or, as expressed in plain language, ‘by the moiety or half and by the whole.’ The true interpretation of this phrase seems to be that such tenants were seised of the entire estate for the purpose of tenure and survivorship, but of only a particular part or interest for the purpose of immediate alienation.” 14 Am. Jur., Cotenancy, Sec. 8, p. 81.
“A joint tenancy is not a testamentary disposition of property. A joint tenancy is a present estate in which both joint tenants are seized in the case of real estate, and possessed in the case of personal property per my and per tout. One of the characteristics of a joint tenancy is a right of survivorship between the joint tenants, if the joint •tenancy is still in existence. The right of survivorship, however, does not pass anything from the deceased joint tenant to the surviving joint tenant.” Strout v. Burgess, 144 Me. 263, 68 A.2d 241, 252, 12 A.L.R.2d 939.
“Survivorship is the distinctive characteristic of an estate in joint tenancy.” 48 C.J.S., Joint Tenancy, § 1 b, p. 910.
“The joint tenant who survives does not take the moiety of the other tenant from him or as his successor, but takes it by right' under the conveyaiice or instrument by which the joint tenancy was created.” 48 C.J.S., Joint Tenancy, § lb, p.911.

Joint tenancy is not an estate of inheritance; a joint tenant who dies leaving a surviving tenant has no interest which he may devise. Hoeffner v. Hoeffner, 389 Ill. 253, 59 N.E.2d 684.

The title to the house in Lisbon, appraised at $4000, vested in Inez Mae Kaspari as the surviving joint tenant under the joint tenancy survivorship deed thereto in favor of Martin Kaspari and Inez Mae Kaspari. That property was not a part of the estate of the deceased. The inclusion of one-half of the value of this property in the estate was favorable to the four daughters of the deceased and increased their proportional share of the estate under the terms of the will beyond the requirements imposed by law.

For estate tax purposes joint interests are included in determining value of the property subject to the tax on transfers of estates. Section 57-3706, NDRC 1943. Such inclusion does not, however, change the title status of the property resulting upon the death of a joint tenant where survivorship of real and personal property, or co-ownership rights are involved of United States Savings Bonds. Except for estate tax purposes, it was unnecessary for the executrix to include in the inventory joint tenancy property held with right of survivorship by her and her husband. This also applied to co-ownership bonds. When she accounted for half of the value of all such property, she was doing more than the law required. The inventory is not objectionable on the ground that the joint tenancy property was deducted on a one-half basis of the value thereof.

Our statute provides for a hearing on an •inventory and appraisement for.the purpose of hearing objections thereto concerning the homestead and' other exempt property. Section 30-1607, NDRC 1953 Supp. There is no other statute authorizing a hearing on the inventory.

Under the facts in this case it became necessary for the county court to determine the exact value of the estate of Martin Kas-pari to enable it to ascertain accurately whether the value thereof was increased or decreased over his estimate and thus apply such proportional increase or decrease to the legacies provided for the appellants in paragraph two of the will. The court, upon filing of the inventory, issued a notice hearing inventory and appraisement dated May 28, 1953, which called for a hearing thereon on the 15th day of June, 1953, at ten o’clock in the City of Lisbon, Ransom County, North Dakota. Although waivers had been filed by the appellants, it appears that the notice hearing inventory and ap-praisement was mailed on the 28th day of May, 1953, registered mail to Charlotte Dever, Shirley Blake,. Margaret Jacobson and Barbara Henderson. ' An affidavit of mailing is in the record attached to which are four registry receipts and. four return cards showing that each of said persons received said notice of hearing between the 1st and 3rd day of June, 1953. No one appeared on behalf of the appellants to object to any part or portion of the inventory as filed. An order allowing it was. filed on the 17th day of June, 1953.

It was not until the final report and account was filed by the executrix in November, 1953, and on the date set for hearing thereon that the appellants made any objections to the appraisement of the estate. They were on notice of the hearing on the inventory and failed to make objections thereto.

It is strenuously argued that the hearing on the inventory was not authorized by statute and that the order allowing the same be vacated and set aside. It was incumbent upon the court under the last will and testament of Martin Kaspari, deceased, to finally determine the exact value to be placed on his property in order to distribute it properly as provided by the will. Under Section 111 of the North Dakota Constitution and Section 27-0702, NDRC 1943. the county court has exclusive jurisdiction in probate' and testamentary matters. Under our statutes the court has the power to direct and control the conduct and settlement of-the accounts of executors and administrators; to enforce the payment of legacies, the .distribution of estates of decedents, and the payment or delivery by executors' and administrators of money or other property in their possession belonging to the estates;, and, with respect to any matter not expressly provided for in the code, to act as nearly as may be according to the provisions of the title Judicial Proce-' dure, Civil, and to exercise such other-incidental powers as are necessary to carry into effect the powers expressly conferred. Section 27-0709, subsections 4, 6, and 18, NDRC 1943. Under the constitution and the statutes, the county court had the authority to determine the value of the estate of Martin Kaspari, deceased. It was a necessary step in the complete settlement of the estate. The court was within its jurisdiction in issuing the order allowing the inventory and appraisement. That order determined that the total value of the estate of the deceased amounted to $67,485.71. There was no .competent evidence introduced at any stage of the proceedings involved to dispute the values thus determined.

The only other remaining issue on the inventory is whether the note of James Blake, and Shirley Blake was an asset of the estate. It will be noted here that if the note of James Blake and Shirley Blake in the sum of $4,500 is not an asset of the estate, Shirley Blake will be the chief beneficiary. Her three sisters will suffer a detriment by reason thereof to the extent of their proportionate interest in the' appraised value of the said note under the terms of the will.

In January, 1946, James Blake and his wife, Shirley, were about to build a home. Temporary arrangements had been made to purchase three government granaries to use in the construction thereof, and secure a loan to finance the building. The testator and five or six of his relatives were present talking this over, and the deceased, Martin Kaspari, stated to his daughter and son-in-law that they should build a suitable home; that he would give them the money. Subsequent actions of the parties would indicate that this meant an advance or a loan to them-. It was estimated at that time that they would need about $2,000. Thereupon the deceased gave James Blake, his son-in-law, a check in that amount. This .check-is in evidence. The Blakes were further, advised that if they needed additional money to complete the construction of- their home the deceased would advance such further sums. On July 15, 1946, he issued another check to J. E. Blake for the sum of $1,000. On October 5, 1946, Inez Mae Kaspari issued another check for $750. On October 26, 1946, she gave another check to James Blake in the sum of $500 and on November 12, 1946, a further check in the sum of $250. The total of these checks, amounted to $4,500.

On January 29, 1947, James Blake and Mrs. James Blake signed a note to Martin Kaspari for $4,500 payable January 29, 1957. The note did not provide for interest. Prior to the execution of the note, Mr. and Mrs. Blake had forwarded to Martin Kas-pari the sum of $40, which was endorsed on the note after it was executed. The payment, according to the note, was received on January 21, 1947, or just a few" days before the note was executed. ■ Thereafter the Blakes paid $520 over a period of two years. These payments were endorsed on the note. At no time did either Shirley Blake or her husband assert that the note was not a valid obligation. On cross examination Shirley Blake was asked:

“What you paid was what you planned on doing, was to gradually pay the note up, and when it; matured, it would be paid, didn’t you? A. If we could.”

The court, in the course of the trial, asked Mrs. Blake this question:

“Mrs. Blake, why did you make payments to your father during those months, why did you send him this money?. A. Well we had the money to give him.”

The actions of the parties indicate that neither of them ever considered the money advanced a gift of Martin Kaspari. The only testimony in the record of a gift was offered by Osmund B. Jacobson, a son-in-law, who relates conversations to that effect with the deceased. These conversations, however, do not overcome the presumption that the balance of the note is a valid obligation due the estate. They are not so convincing as to overcome other facts in this case and the actions of the parties with reference to the execution and the payments endorsed on the note. The note had not been surrendered to the Blakes at the time of Martin Kaspari’s death. It was found among his assets.

“Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.” Section 41-0301, NDRC 1943.

The burden to sustain a defense of want of consideration in an action on a note is on the defendant. Goldammer-Cranna-Weaver Co. v. Price, 60 N.D. 272, 234 N.W. 63.

“An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon.the promisor or prejudice suffered by the promisee, also "is a good consideration for a promise to an extent corresponding with the extent of the obligation, but no further or other-" wise.” Section 9-0502, NDRC 1943.

The appellant, Shirley Blake, admits that the $4,500 note was a moral obligation. The burden of showing want of consideration sufficient to support a defense to a negotiable instrument lies with the parties seeking to invalidate or avoid it. Both the county court and the district court found that the $4,500 note signed by James Blake and his wife, Shirley Blake, otherwise known as Mrs. James Blake, one of the appellants in this action, was a valid obligation and constituted a párt of the assets of the estate of Martin Kaspari, deceased, and therefore, subject to administration and distribution therein. The determination of the district court is entitled to appreciable weight. The evidence amply bears out its finding.

In the case of Zeman v. Mikolasek, 75 N.D. 41, 25 N.W.2d 272, this court held that to constitute a valid gift inter vivos there must be an intention on the part of the donor to then and there transfer title to the property to the donee, coupled with an actual and constructive delivery of the property of a nature sufficient to divest the owner of all dominion over the property and to invest the donee-therewith. Sections 47-1106 and 47-1109, NDRC 1943.

The facts in this case negative any gift inter vivos of the funds involved. After $4,500 had been advanced by Martin Kaspari, and Mr. and Mrs. James Blake had paid $40 to apply on the advances, they signed a note for the total amount of the advance, which is an indication that as of the time there was no intent to donate the funds.

“It is a general rule that when a claim of a gift is not asserted until after the death of the alleged donor the evidence must be clear and convincing of every element requisite to constitute a gift.” Medin v. Brookfield, 66 S.D. 209, 213, 281 N.W. 97, 99.

In this case the court cited the case of Whalen v. Milholland, 89 Md. 199, 43 A. 45, 44 L.R.A. 208, and quoted therefrom as follows:

“ ‘Mindful of the facility with ■ which, after the alleged donor is dead, fraudulent claims of ownership may be founded on pretended gifts of his property asserted to have been made while he was living, it is but a salutary precaution which demands explicit and convincing evidence of every element needed to constitute a valid donation, whether ■ it be a donation inter vivos or mortis causa. Even then fraud--ulent claims may prevail, but the rigid requirement of the clearest proof will at least diminish the number.’ ”

If the advancement of the money was a gift, it was an idle gesture to execute a note. The signing of the note indicates that both James Blake and Shirley Blake, his wife, understood that the money advanced was not a gift, and the payments made further indicate that fact. The acceptance of the note by Martin Kaspari indicates that he did not consider the advance a gift.

■The $4,500 note was an asset of the estate of Martin Kaspari, deceased, and was properly inventoried as a part thereof.

We now come to a consideration of the creditor’s claim filed by Shirley Blake. The claim presented purports to cover the furnishing of necessities and the taking care of two minor daughters of the deceased, to wit, Barbara Kaspari and Margaret Kaspari during the period beginning in the fall of 1937 and ending in the spring of 1940, at $25 per month, during the months referred to. The total claim amounted to $1,574 less a credit of $14 for potatoes and a pig that was furnished by the deceased.

The claim was filed September 1, 1953. The notice to qreditor§ was dated May 15, 195.3, and was published for the first time on the 21st day of May, 1953, which- according to our statutes made the last date for filing of claims the 21st day of August, 1953. The date for adjusting .claims in the notice to creditors was September 3, 1953.

The claim must fail for two reasons: First, ori its face it appears that the debt, if any, was barred by the statute of limitations under Section 30-1809, NDRC 1943, which provides that no claim barred by the statute of limitations at the time of the death of the deceased shall be allowed by the court either in favor of or against the estate, as a set off or otherwise;' Second, the claim was not filed and presented within the time provided by statute. Our statute provides that claims against an estate must be presented within the time limited in the notice to creditors and any claim not so presented, is barred forever. Section 30-1804, NDRC 1943. This statute has been held to be one of non-claim. Graber v. Bontrager, 69 N.D. 300, 308, 285 N.W. 865, 870, and authorities therein cited. The time specified in the notice for filing claims shall be three months from the- first publication thereof. Section 30-1802, NDRC 1953 Supp.

It was approximately thirteen years after the necessaries were furnished that Shirley Blake filed her claim against her father’s estate. On its face, the claim was barred by the statute of limitations at the time of the testator’s death.

It is true that no notice of -hearing was given on this claim within the terms of Section 30-1808, NDRC 1943. No advantage would have accrued to the claimant by notice as provided in that statute, as the claim on its face showed that the indebtedness, if any, was barred by the statute of limitations, and further the claim was not filed and presented within the time- provided by the notice to créd-itors. The claim was properly disallowed.

When Martin Kaspari died -he was possessed of Section 13, Township 134 North of Range 55 West of the 5th P.M., Ransom County, North Dakota. Under the will this became the property of Inez Mae Kas-pari, widow of the deceased. He was also possessed of certain seed grain, which has been accounted for by supplemental inventory filed in his estate. When he died none of the crops -had been seeded. After his death the executrix took possession of the land and seeded it to wheat, barley, and other grain crops prior to her appointment as such. No accounting was made of the 1953 crop in the final report and account and petition for distribution., An accounting was made to the court subsequent thereto under and in connection with a petition for partial distribution. Counsel agreed that the 1953 crop amounted to $8,660.73; that the total expenditures in producing the crop were $2,158.68; that the net cash proceeds from operating the farm were $6,502.05 and that there are on hand in the granaries on the farm from the 1953 crop, approximately 800 bushels of wheat, 900 bushels of barley and 1220 bushels of oats.

The question was raised whether or not the proceeds from t-he income of the land for the year 1953 is an asset of the estate and to be included in the inventory of the property possessed by the testator at the time of his death, subject to distribution to the various devisees and legatees named in the will. In the case of Dolphin v. Peterson, 63 N.D. 792, 249 N.W. 784, 787, this court held that all of the property, rents, and issues of profits therefrom, must be possessed by the administrator and accounting made therefor. It also held that the statute did not deprive a devisee or legatee of a tract of land devised to her or to the rents or profits to which she may be entitled and stated:

“This- does not mean, as plaintiff - seems to argue, that an executor or administrator may deprive a devisee of a tract’ of land bequeathed to him or. the rents or profits to which he may ■ be entitled. The statute makes ample provision for protection of the rights of the devisee. It provides: ‘At any time after the lapse of the time limited for filing claims, any heir, devisee or legatee may present his petition to the court for the legacy or share of the estate to which he is entitled, to be given to -him upon his giving bond for the payment of his proportion of the debts of the estate.’ ” Section 30-2101, NDRC 1943.

While it was the duty of the executrix in this estate to account for the 1953 crops, they are to be distributed to the residuary legatee under the terms and conditions of the will. They belonged to her. At the time of the order of the county court decreeing partial distribution to t-he residuary legatee, Inez Mae Kaspari, of the section and the 1953 crop, under date of March 31, 1954, there were ample funds in the estate to pay all claims against the estate and all legacies. No injury, under any interpretation of the will, could result to the appellants by the partial’ distribution.

The appellants contend that the county court was without jurisdiction-to entertain the petition for partial distribution and to grant the same while there was an action pending on appeal involving the final .report and account of the executrix in the estate. They cite 34 C.J.S., Executors and Administrators, § 534, p. 466, dealing with the review and effect of appeal, also Linstead v. Superior Court of Mendocino County, 17 Cal.App.2d 9, 61 P.2d 355, 356, in which the court said:

“It has been frequently held that in a civil matter the effect of an appeal is to remove from the jurisdiction of the trial court all questions affecting the validity of the judgment or order appealed from, and while an appeal from a judgment is pending the trial court has no power to amend or correct the sanie. Parkside Realty Co. v. MacDonald, 167 Cal. 342, 346, 139 P. 805; Kinard v. Jordan, 175 Cal. 13, 164 P. 894; Field v. Hughes, 134 Cal. App. 325, 25 P.2d 241.”

These authorities do not support the contention of the appellants in this action. The order appealed from allowing the final report and account in this estate is in no way affected by the decree of partial distribution. It constituted a separate proceeding. It was not an amendment or a correction of the order allowing the final report and account. The order decreeing partial distribution was proper and lawful since it in no way affects the rights of the appellants under the will. The assets in the estate are of sufficient amount to take care of all the legacies and other claims.

We now come to the final question involved in this appeal, the interpretation of the will insofar as it affects the appellants. The second paragraph of the last will and testament of Martin Kaspari reads as follows:

“After payment of such debts, funeral expenses, taxes and administration' expenses, I give, devise and bequeath to my four daughters born of my former marriage, and their heirs, if any .do not survive me, the following sums, — ■
To Charlotte.the sum of_$1,000.00
To Shirley the sum of. 1,000.00
To Margaret the sum of.. 1,000.00
To Barbara the sum of. 1,000.00
such legacies being dependent upon the assets of my estate being appraised at a sum equal to what I now estimate the value of my property to be to-day, namely, — $57,000.00, and if my estate, at the time ’of my death be appraised for more or less than the value I now place thereon, I direct that the said legacies to my daughters above named be raised or lowered proportionately, as the value of my estate is determined by the ■ appraisal thereof to'be less or greater than its present value as determined by me, as stated above.”

It is the contention of the appellants that the total increased value of the estate over $57,000 should be equally divided between the four daughters of the deceased mentioned in the above quoted paragraph of his will.

The language of the will is unambiguous and all parties have agreed that it is plain and readily understandable. Apparently the appellants take the position that the word “proportionately” is to be interpreted as “equally.”

The sole purpose of the court in construing a will is to ascertain the intention of 'the testator as the same appears from the full and complete consideration thereof. In re Glavkee’s Estate, 76 N.D. 171, 34 N.W.2d 300, and authorities therein cited. • Section 56-0508, NDRC 1943. When the entire will of Martin Kaspari is considered there can be no doubt as to the meaning of the second paragraph thereof. Funk and Wagnalls New Encyclopedia defines “proportion” as, “a particular species of relations subsisting between groups of numbers or quantities; the equality of ratios.” Ratio is in turn defined as, “the relation of two numbers to each other as determined by a division of one by the other.” “Each proportion is, therefore, the result of two ratios and the problem of solving the proposition is accomplished by bringing those two ratios into equality.”

The language of the second paragraph of the will of the deceased would indicate that it was his intent to give to each of his four adult daughters a ⅜7⅛ interest- of his estate. He estimated that the value of his assets as of the time he executed his will was $57,000 and out of that amount he gave $1,000 to each adult daughter. To allow for any inaccuracy that might exist in his estimate, he provided that these legacies would be raised or lowered “proportionately” if his estate was valued at more or less than $57,000. If the word proportionately is subject to its ordinary accepted meaning it. appears that the testator intended that each of his four adult daughters should receive the same proportion of any increase in his estate, or suffer the same decrease'therein. They were to receive a %7Üi of his entire estate. Any other interpretation ' would seem to be unwarranted. It is clear that if the value of his assets had been accurate, then each daughter was to receive a ½7⅛ interest. By the use- of the word “proportionately” he must have intended, to increase or decrease the legacy to each on the same basis as he had provided for each based on his estimate.

The word “proportion” refers to quantity and not quality, and is appropriately and generally employed to indicate one’s "share or portion when the. "whole of a thing is distributed according to value, as when it is arranged and divided with relation to magnitude or quantity. In instruments of writing “proportions” may be employed as showing that the figures given merely express a ratio and not absolute quantities. 73 C.J.S., Proportion, p. 217. “Mathematicians define ‘proportion’ as a quality of ratio; that is to say, of four numbers or factors, two of them bear the same relation to each other as the other two. Thus we say, 6 is to 8 as 12 is to 16, because the relation of 6 .to 8 is the same as that of 12 to 16. Usually, given three of these factors, we can easily find the fourth or missing one.” Glucksman v. Board of Education, Mun.Ct., 164 N.Y.S. 351, 360. If the testator had intended that his four adult daughters share any increase equally over and above the estimated, value of his assets, he could easily have expressed that intent.

When Martin Kaspari died the total value of his property amounted to $67,-485.71.. If we assume on the basis of the corrected inventory that Shirley’s share or the share of any one of the other three adult daughters equals X, then the problem presented may be expressed in this manner:

This can be simplified by stating it as:

57 : 1 :: 67,485.71 : X.
Hence 67,485.71 = 57X ■
Hence 67,485.71 or 1,183.95 as the share of each
57 '

•adult daughter of the deceased. The results would be exactly the same if we took the increased value of the, estate of $10,-485.71 and divided it by. 57, which would yield an increase over and above the specific legacies of $1,000 to each of the four adult daughters, of $183.95, or" a total of $1,183.95 to each. The ■ four adult daughters are, therefore, entitled to a distribution of $1,183.95 each.

The judgment of the District Court is affirmed.

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