                Filed 10/03/19 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2019 ND 243

Curtis R. Trulson and Lesley D. Trulson,            Plaintiffs and Appellants
      v.
John Anthony Meiers, Jean R. Meiers,
Evan J. Meiers and Lauren B. Meiers,               Defendants and Appellees



                                No. 20190035

Appeal from the District Court of Mountrail County, North Central Judicial
District, the Honorable Todd L. Cresap, Judge.

REVERSED AND REMANDED.

Opinion of the Court by McEvers, Justice.

Erich M. Grant, Minot, ND, for plaintiffs and appellants.

Erin M. Conroy, Bottineau, ND, for defendants and appellees.
                     Trulson, et al. v. Meiers, et al.
                             No. 20190035


McEvers, Justice.

[¶1] Curtis and Lesley Trulson appeal a judgment quieting title to a
mineral royalty interest in John (“Tony”) and Jean Meiers. The district
court ruled a royalty deed from the Meiers was not delivered and did not
convey a royalty interest to the Trulsons. We conclude the district court
misapplied the law because the Meiers failed to rebut the presumption that
the deed was delivered to the Trulsons. We reverse and remand for entry
of judgment consistent with this opinion.

                                      I

[¶2] In January 1982, the Meiers executed a warranty deed conveying a
quarter of land in Mountrail County to the Trulsons. The deed stated “[n]o
minerals are transferred by this conveyance.” In June 1982, the Meiers
executed a royalty deed conveying a one-twelfth (1/12) royalty interest in
the minerals under the property to the Trulsons. The royalty deed was not
notarized and was not recorded by the Trulsons until December 2008.

[¶3] In April 2017, the Trulsons sued the Meiers claiming ownership of the
mineral royalty interest. The Trulsons argued the Meiers conveyed the
royalty interest under the June 1982 royalty deed. The Meiers asserted the
statute of limitations barred the Trulsons’ claim, and the Trulsons could not
prove the Meiers delivered the royalty deed to them. The district court
denied both parties’ motions for summary judgment, concluding there was
a genuine issue of material fact on delivery of the royalty deed.

[¶4] Curtis Trulson introduced the royalty deed into evidence at a bench
trial and testified that Tony Meiers delivered the deed to him in June 1982.
Trulson testified the parties discussed the conveyance of a mineral royalty
interest as part of the purchase of the surface estate. Tony and Jean Meiers
both testified that the deed contained their signatures but they did not
remember delivering the deed to the Trulsons. Jean Meiers testified that


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the Meiers did not intend to convey a mineral interest and the Trulsons may
have obtained the deed by accident.

[¶5] After trial, the district court found the Meiers did not intend to convey
a mineral royalty interest to the Trulsons. The court entered a judgment
quieting title to the disputed royalty interest in the Meiers.

                                       II

[¶6] The Trulsons argue the district court erred in quieting title to the
mineral royalty interest in the Meiers. They claim the court misapplied the
law in making its decision. We agree.

[¶7] Whether there was delivery of a deed is a question of fact. Rice v.
Neether, 2016 ND 247, ¶ 9, 888 N.W.2d 749. A finding of fact is clearly
erroneous if it is induced by an erroneous view of the law, if no evidence
exists to support it, or if this Court, on reviewing the entire evidence, is left
with a definite and firm conviction a mistake has been made. Id. at ¶ 9.

[¶8] Conveyance by deed takes effect upon delivery of the deed by the
grantor. CUNA Mortg. v. Aafedt, 459 N.W.2d 801, 803-04 (N.D. 1990)
(citing N.D.C.C. § 47-09-06). “Absent a delivery of the deed, the deed is of
no effect.” CUNA Mortg., at 804. Delivery must be proven on the basis of
the circumstances presented. Rice, 2016 ND 247, ¶ 11, 888 N.W.2d 749.

[¶9] A primary element to be considered in deciding whether a deed has
been delivered is the intention of the grantor. Rice, 2016 ND 247, ¶ 14, 888
N.W.2d 749. Although intent must be considered, “possession of the deed
[by the grantee] presumes a situation which must be rebutted, and, where
the manual giving of the deed to the grantee is otherwise unexplained, the
law presumes the grantor intended a delivery of the deed so as to pass title.”
Cox v. McLean, 66 N.D. 696, 703, 268 N.W. 686, 688 (1936); see also 23 Am.
Jur. 2d Deeds § 136 (“A strong presumption of delivery of a deed arises from
its possession by the grantee or one claiming under the grantee.”). “[T]he
evidence to overcome the presumption that a deed in the possession of a
grantee was delivered to and accepted by the grantee must be clear and


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convincing.” Adams v. Little Missouri Minerals Ass’n, 143 N.W.2d 659, 676
(N.D. 1966) (citing Cox, 66 N.D. at 701-02, 268 N.W. at 688).

[¶10] In denying both parties’ summary judgment motions before trial, the
district court concluded there was “a genuine issue of material fact on
delivery of the [royalty] deed.” The parties testified at trial about the
circumstances surrounding the royalty deed and the earlier warranty deed
conveying the surface estate. Despite the court’s conclusion that a factual
dispute existed on the delivery of the royalty deed, the order following trial
discussed reformation of the January 1982 warranty deed relating to the
conveyance of the surface estate. The Trulsons’ complaint did not seek
reformation of the warranty deed. They claimed ownership of the royalty
interest under the royalty deed from the Meiers. The court’s finding that
the Meiers did not intend to convey a royalty interest to the Trulsons
ignored the Trulsons’ possession of the deed and the presumption that the
Meiers delivered the deed. The court failed to find whether the Meiers
rebutted the presumption of delivery with clear and convincing evidence.

[¶11] The district court found the Meiers did not intend to convey a mineral
interest on the basis of inconsistencies in the circumstances surrounding
the warranty deed and the royalty deed. The court noted that the parties
executed the warranty deed in a law office and the Trulsons recorded the
deed in March 1982. The court found the royalty deed less reliable because
the Meiers had no recollection of signing the deed, the deed was not
witnessed or notarized, and the Trulsons did not record the deed until 2008.
That the royalty deed was not notarized or recorded does not affect the
validity of the deed between the parties. See Amann v. Frederick, 257
N.W.2d 436, 440 (N.D. 1977) (“As between the parties, it is immaterial that
an instrument in writing subscribed by the parties and affecting real estate
is not acknowledged.”); Desert Partners IV, L.P. v. Benson, 2016 ND 37, ¶
12, 875 N.W.2d 510 (“An unrecorded instrument is valid between the
parties to the instrument.”).

[¶12] Curtis Trulson testified that the parties discussed the conveyance of
a mineral royalty interest and Tony Meiers delivered the royalty deed in


                                      3
June 1982. The district court found Curtis Trulson’s testimony unreliable.
However, even if Trulson’s testimony is disregarded, the presumption of
delivery still applies because Trulson had possession of the deed. Tony
Meiers testified he recalled discussing the royalty interest conveyance with
Curtis Trulson when the Trulsons purchased the surface estate. Tony
Meiers testified that his signature is on the royalty deed but he did not
remember signing it or delivering it to Curtis Trulson. Jean Meiers also
testified that her signature is on the deed but she did not know how the
Trulsons obtained the deed. She testified delivery of the deed to the
Trulsons may have been accidental. Neither Tony nor Jean Meiers testified
the Trulsons obtained the deed by fraud, undue influence, or duress.

[¶13] The Meiers testified that they did not intend to convey a royalty
interest but could not otherwise explain how the Trulsons obtained the
deed. The Meiers only provided speculative testimony that delivery to the
Trulsons may have been accidental. After a thorough review of the record,
we conclude as a matter of law the Meiers failed to rebut with clear and
convincing evidence the presumption that the royalty deed was delivered to
and accepted by the Trulsons. We therefore reverse the judgment quieting
title in the Meiers and remand for entry of judgment quieting title to the
one-twelfth mineral royalty interest in the Trulsons.

                                    III

[¶14] We have considered the parties’ remaining arguments and conclude
they are either without merit or not necessary to our decision. The
judgment is reversed and remanded for entry of judgment quieting title in
the Trulsons.

[¶15] Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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