Dwyer v. Sell, 963 N.W.2d 292

In 2004 Tim Dwyer Sr. created the Tim Dwyer Farm Trust, conveying ~7,000 acres to the Trust and naming Margaret Sell and John Dwyer co‑trustees.
The trust gave Tim Dwyer Jr. a continuing lease right and a first right to purchase Trust land if the co‑trustees decided to sell.
In October 2018 the co‑trustees decided a sale might be in beneficiaries’ best interests; disputes arose over which parcels could be sold, financing terms, withdrawal after appraisal, and reserved recreational/hunting rights.
Dwyer Jr. sued for declaratory relief asking (inter alia) that the trustees be required to offer him all property, be barred from withdrawing parcels after appraisal, allow prepayment of the contract for deed, and preserve beneficiary access for hunting/recreation.
The district court granted partial summary judgment for the co‑trustees, holding trustees have broad discretion to sell none/some/all parcels, trustees may withdraw parcels if appraisals are unsatisfactory, sales to Dwyer Jr. must be on a 15‑year contract for deed with equal annual payments at 4.5% (no prepayment), and N.D.C.C. § 47‑05‑17 prohibits reserving hunting access in future conveyances.
The Supreme Court of North Dakota affirmed the amended judgment.

Issue	Plaintiff's Argument (Dwyer)	Defendant's Argument (Co‑trustees/Sell)	Held
Scope of trustees' power to sell and withdrawal after appraisal	Trustees must first offer all Trust property to Dwyer Jr., cannot choose parcels to sell, cannot withdraw after appraisals	Trustees have broad discretion to sell none, some, or all parcels and may withdraw parcels if appraisals are unsatisfactory	Trustees have broad discretion to sell none/some/all; must offer any parcel they decide to sell to Dwyer Jr.; neither party is required to accept an appraisal price and parcels can be withdrawn
Prepayment of contract for deed	Prepayment is allowed because the trust does not expressly prohibit it	Trust requires equal annual installments for 15 years at 4.5% so prepayment is not permitted	Contract for deed must have 15 equal annual installments of principal and interest at 4.5%; this precludes prepayment
Reservation of hunting/access rights on conveyed Trust property	Trust language reserves to descendants a right of access for hunting and recreation	Reservation of hunting/access rights in a conveyance is prohibited by N.D.C.C. § 47‑05‑17 for instruments recorded/executed after Aug 1, 2007	A co‑trustee cannot, on a post‑2007 conveyance, reserve a severable right of access to hunt; reservation of other outdoor activities (non‑hunt) treated separately; court upheld statutory prohibition

Krebsbach v. Trinity Hosps., Inc., 938 N.W.2d 133 (N.D. 2020) (summary judgment standard)
Pennington v. Continental Res., Inc., 932 N.W.2d 897 (N.D. 2019) (summary judgment standard principles)
Trust of Roger S. Linn Restated Trust Agreement, 923 N.W.2d 815 (N.D. 2019) (trust interpretation—ascertain settlor intent; unambiguous documents)
Hallin v. Inland Oil & Gas Corp., 903 N.W.2d 61 (N.D. 2017) (use of extrinsic evidence when instrument ambiguous)
Goetz v. Hubbell, 266 N.W. 836 (N.D. 1936) (court declares, not makes, contracts)
Hauer v. Zerr, 937 N.W.2d 508 (N.D. 2020) (reservation of hunting rights in deed is a severance prohibited by § 47‑05‑17)