Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia Feland, Judge.
Zachary E. Pelham (argued) and Benjamin W. Keup (appeared), Bismarck, N.D., for plaintiffs and appellants.
Micheal A. Mulloy (argued), Bismarck, N.D., and James J. Coles (argued), Bismarck, N.D., for defendants and appellees.
Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner. Opinion of the Court by VandeWalle, Chief Justice.
VandeWalle, Chief Justice.
[¶1] Dennis and Charlene Deckert appealed from a summary judgment dismissing their action for a declaratory judgment and specific performance of an option to purchase certain Burleigh County real property and quieting title to the property in Margaret McCormick and Judy Hertz. Because we conclude there is no genuine issue of material fact that the Deckerts did not properly exercise the gratuitous option before it was revoked, we affirm the judgment.
[¶2] McCormick resides in Menoken and Charlene Deckert and Hertz are two of her five children. In 2006, McCormick owned 12 quarter sections of land in Burleigh County. After hiring an attorney to assist her in estate planning, McCormick transferred two quarter sections of land to each child through quit claim deeds, reserving in herself life estates. On March 7, 2006, McCormick granted an option to purchase the property at issue in this case
to the Deckerts. The option provided in relevant part:
For and in consideration of the sum of Ten Dollars ($10), and other good, valuable and legally sufficient consideration, in hand paid by Buyers to Owner, Margaret L. McCormick, does herein and hereby grant to Buyers, or the survivor thereof, an option to purchase the following described property pursuant to the terms and conditions of this Option:
This Option to purchase shall remain in full force and effect until December 31, 2015, at which time this Option shall fully finally expire, in its entirety. At any time during the option period, Buyers, or the survivor thereof, or in the event of the death of both Buyers, the issue of the Buyers, shall be authorized to purchase the above-described property, or any quarter section thereof, for a purchase price of $200 per acre. The conveyances shall be by way of Warranty Deed conveying good and marketable title to the subject premises, subject only to easements and restrictions and mineral reservations presently of record. As to physical condition, the real property shall be conveyed " AS IS, WITH ALL FAULTS" . To exercise the Option, Buyers shall tender the full purchase price, in cash, to Margaret L. McCormick, or her successors or assigns, at any time prior to December 31, 2015. Margaret L. McCormick, or her successors or assigns, as Owner, shall be responsible to deliver to Buyer abstracts of title to the subject premises, which abstracts shall be updated at Buyer's sole cost and expense. All real estate taxes shall be prorated to closing.
The Deckerts were not informed of this option until a week or two after its execution.
[¶3] Also on March 7, 2006, McCormick conveyed the same property through a quit claim deed to Hertz, reserving to herself a life estate:
Grantor does hereby reserve, for the balance of her natural life, a life estate in and to the subject property which shall include the right to possess occupy and control the premises and to collect rents therefrom during Grantor[']s natural life, Grantor shall pay any and all costs and expenses necessary to maintain the premises and any and all real estate taxes assessed against the premises. The ...