Kathleen Markgraf and Marilyn Shanahan, Plaintiffs and Appellees
Connie Welker, Vicki Ostrem, Defendants and Appellants and Margaret Rehmer, Robert Leroy Hannah, Jr., Robert Hannah, Cheryl Hannah, Donna Shilliam, William J. Hannah, Estate of William J. Hannah, Mary Hannah, Estate of Mary Hannah, Robert L. Hannah, Estate of Robert L. Hannah, Alan Hannah, Estate of Alan Hannah, Kathryn Hannah Nelson, Barbara Eggert, Estate of Barbara Eggert, Arnold Hannah, Estate of Arnold Hannah, Donald Hannah, Estate of Donald Hannah, Larry Erickson, Estate of Larry Erickson, and all other persons unknown claiming any estate interest in or lien or encumbrance upon the real property described in the Complaint, whether as heirs, legatees, personal representatives, devisees, creditors or otherwise, Defendants
from the District Court of Mountrail County, North Central
Judicial District, the Honorable Richard L. Hagar, Judge.
D. Cook, West Fargo, ND, for plaintiffs and appellees.
J. Pathroff (argued), Bismarck, ND, and David T. Hermanson
(appeared), Fargo, ND, for defendants and appellants.
VandeWalle, Chief Justice.
1] Connie Welker and Vicki Ostrem appealed from a district
court judgment deciding ownership of mineral interests in
Mountrail County. Welker and Ostrem argue the court erred in
finding that a resulting trust exists and that the trust was
not repudiated. We conclude the district court did not err in
finding a resulting trust exists and Welker and Ostrem failed
to establish the trustee's repudiation of the trust. We
2] Kathleen Markgraf and Marilyn Shanahan brought an action
against Welker and Ostrem to quiet title to minerals in and
under property located in Mountrail County, described as:
Township 154 North, Range 93 West / Section 17:
N1/2NW1/4, SW1/4NW1/4, NW1/4SW1/4
Township 156 North, Range 93 West / Section 25:
Township 156 North, Range 92 West / Section 19:
E1/2NW1/4, Lots 1 & 2 Lots 1, 2, 3, and 4, of Block 8,
Original Townsite of Ross
and Shanahan alleged W.J. Hannah owned 100% of the surface
and minerals when he conveyed the property to "Arnold
Hannah, Trustee" by grant deed in 1965, intending to
create a family trust and appointing his son, Arnold Hannah,
as trustee. Markgraf and Shanahan are descendants of Kathryn
Nelson, W.J. Hannah's daughter and Arnold Hannah's
sister. They claimed W.J. Hannah intended Arnold Hannah would
hold the legal title to the property in trust for the benefit
of himself; his siblings, Kathryn Nelson and Robert L.
Hannah; and Margaret Rehmer, the only child of his deceased
brother, Wilbert Hannah. They claimed Arnold Hannah held
himself out as trustee in dealings related to the property,
kept an accounting of the income and expenses related to the
property, and made disbursements to the beneficiaries from
the proceeds of the trust. They argued a resulting or
constructive trust was created and Welker and Ostrem, as
Arnold Hannah's heirs, do not have exclusive rights to
the property. Welker and Ostrem answered and requested the
complaint be dismissed.
3] Welker and Ostrem moved for summary judgment. They argued
they were entitled to summary judgment because the 1965 grant
deed transferring the property to "Arnold Hannah,
Trustee" conveys the title to Arnold Hannah in his
individual capacity, the word "Trustee" is
surplusage under N.D.C.C. § 47-09-12, and Markgraf and
Shanahan's claims for a resulting or constructive trust
4] Markgraf and Shanahan also moved for summary judgment,
arguing a resulting or constructive trust was created when
the property was conveyed to Arnold Hannah. They claimed that
W.J. Hannah intended Arnold Hannah act as a trustee and
manage the property for the benefit of the family and that
Arnold Hannah acted as a trustee by managing the property,
accounting for income and expenses, paying out disbursements
from the proceeds of the property to family members, and
paying himself a fee for his work related to the property.
5] Welker and Ostrem opposed Markgraf and Shanahan's
motion. They argued Markgraf and Shanahan's quiet title
claim was barred by the twenty-year statute of limitations
contained in N.D.C.C. § 28-01-04, an implied trust was
not created, and there is not clear and convincing evidence
of an understanding in 1965 that the mineral rights would be
divided equally among W.J. Hannah's children.
6] After a hearing, the district court granted Markgraf and
Shanahan's motion for summary judgment and denied Welker
and Ostrem's motion. The court concluded there was clear
and convincing evidence that a resulting trust was created
when the property was conveyed to Arnold Hannah. Welker and
Ostrem appealed, and this Court reversed and remanded,
concluding summary judgment was not appropriate because
reasonable differences of opinion existed about the
inferences to be drawn from the evidence and there was
conflicting evidence which required the court to weigh the
evidence or attempt to discern the truth of the matter.
Markgraf v. Welker, 2015 ND 303, 873 N.W.2d 26.
7] On remand, the parties submitted a stipulated statement of
facts and exhibits. The district court held a bench trial and
entered judgment quieting title to the minerals as Markgraf
and Shanahan requested. The district court considered this
Court's prior decision and found a resulting trust was
created, the trust ...