Schmidt v. Wittinger

2004 ND 189, 687 N.W.2d 479

 

RULE:

Rule 1: The law favors partition in kind, and there is a presumption that partition in kind should be made unless great prejudice is shown. The burden of proving that partition in kind cannot be made without great prejudice is on the party demanding a sale. Great prejudice exists when the value of the share of each in case of a partition would be materially less than the share of the money equivalent that each could probably obtain from the whole.

Rule 2: Under N.D. Cent. Code § 32-16-45, the cost of a partition, including reasonable attorney fees, must be paid by the parties in proportion to their respective interests in the property and may be included and specified in the judgment.

Rule 3: The Conservation Reserve Program is a voluntary federal program whereby landowners can elect to keep land out of production in exchange for cash payments. Under certain circumstances, participation in the program is a desirable alternative to farming land.

FACTS:

Appellee siblings sued appellant brother for a partition sale of inherited farmland and an award of compensatory damages stemmed from appellant's failure to enforce a purchase option held under a lease of the property. The trial court granted appellees partition sale. Appellant argued that the trial court erred by ordering a partition sale rather than a partition in kind.  On appeal, the state supreme court affirmed the trial court’s judgment.

ISSUE:

Issue 1: Did the trial court err in ordering a partition sale of a farmland inherited by appellees and appellant rather than a partition in kind? 

Issue 2: Was the award of damages and attorney’s fees to account for appellant brother's share of the farmland taxes and expenses paid on his behalf by appellee appropriate?

Issue 3: Was the award of compensatory damages for loss of federal program payments to appellees appropriate?

ANSWER:

Answer 1: No.; Answer 2: Yes. ; Answer 3: No.

CONCLUSION:

Conclusion 1: N.D. Cent. Code § 32-16-12 provided for a partition sale if a partition in kind could not be made without great prejudice to the owners. Appellees siblings met their burden of proving that a partition in kind could not have been made without great prejudice to the owners.

Conclusion 2: The award of damages to account for appellant brother share of the farmland taxes and expenses paid on his behalf by appellee siblings was appropriate and in accordance with N.D. Cent. Code § 32-16-45.

Conclusion 3: Appellee siblings had not cited any authority showing that appellant brother had a duty to participate in a federal program with respect to the property or that his failure to participate in the program constituted a legal breach entitling his cotenants to compensatory damages. Thus, the trial court's award of compensatory damages for loss of federal program payments was not supported by the record evidence and was reversed as part of the compensatory damages award.

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