180 N.W. 67 | S.D. | 1920
-The defendant in this action is the surviving widow of one Lars Roinstad, deceased; and the plaintiff is one of the administrators of the estate of said decendent. The estate, so far as this action is concerned, consisted of 240 acres of agricultural land in Charles Mix county.
It appears, from the record, that as early as the month of December, 1917, the estate had been fully administered and the
On the 1st day of April decree of final distribution awarding said land to defendant and her minor children was made and entered by the county court. In the course of the administration, the administrators had executed a mortgage on the land belonging to the estate to secure certain indebtedness, and when the decree of distribution was prepared and entered it contained the following clause:'
' “The said estate is distributed subject to said mortgage and other instruments executed by the said administrators affecting said real estate.”
On the yth day of May, 1918, the county court, pursuant to notice to defendant, made and entered an order directing plaintiff to surrender the premises, on which he had sown said wheat, to defendant, and for him to refrain from making further claim thereto. ' From this order plaintiff appealed to the circuit court but does not appear to ever have taken any steps to- prosecute such appeal.
On the 18th -day of November, 1918, the county court, pursuant to notice to plaintiff, made and entered an order striking from the decree of final distribution the words “and any other
When the wheat was ripe, plaintiff, over the protest of defendant, cut and shocked it. 'Defendant appears then to have taken possession of it, and plaintiff commenced this action in claim and delivery for the possession thereof.
The case was tried to the court without a jury, and, upon the facts as above stated, judgment -was entered for defendant. Plaintiff’s motion for a new trial was overruled, and he appeals to this court.
Plaintiff contends that the administrators of the estate had a right to execute the lease to Newman, and that, when plaintiff took the assignment from 'Newman, he acquired- all of Newman’s right to proceed to farm' the land according to the terms fixed by such lease. He further contends that, by the use of the above-quoted clause in the decree of final distribution, the county court approved and confirmed the said) lease after it had been assigned to plaintiff; and, lastly, he contends that having been in peaceful possession of the land under claim! of right, when he sowed the wheat, he is entitled to reap the crop. But plaintiff’s position- is wholly untenable. It is not necessary to decide whether an administrator, as such, ever has a right to lease land belonging to an estate without an order from the county court.
The judgment and order appealed from are affirmed.