                Filed 1/15/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 17


Marby Hogen and Susan Hogen,                              Plaintiffs and Appellants

      v.

Steven C. Hogen, as Personal Representative
of the Estate of Arline H. Hogen, Deceased;
Steven C. Hogen, as Trustee of the Curtiss
A. Hogen Trust B, as created under the Last
Will and Testament of Curtiss A. Hogen; and
Steven C. Hogen, individually,                           Defendants and Appellees


                                  No. 20180143


      Appeal from the District Court of Barnes County, Southeast Judicial District,
the Honorable Jay A. Schmitz, Judge.

      AFFIRMED.

      Opinion of the Court by Tufte, Justice.

      Jonathan T. Garaas, Fargo, N.D., for plaintiffs and appellants.

       Sara K. Sorenson (argued) and Robert G. Hoy (on brief), West Fargo, N.D.,
for defendants and appellees.
                                   Hogen v. Hogen
                                    No. 20180143


       Tufte, Justice.
[¶1]   Marby and Susan Hogen appeal from a summary judgment in their quiet title
action after the district court determined their interest in certain land was inferior to
the interests of the Curtiss A. Hogen Trust B and the Estate of Arline Hogen. Marby
and Susan Hogen argue the district court erred in not quieting title to the land in them.
We affirm.
                                            I
[¶2]   At issue in this appeal is an interest in about 737 acres of farmland in Barnes
and Cass Counties. Curtiss and Arline Hogen were married and jointly owned the
farmland. In the 1960s, their son, Rodney Hogen, began farming the land with Curtiss
Hogen. Curtiss Hogen died in 1993, and his will distributed his undivided one-half
interest in the farmland to the Curtiss A. Hogen Trust B, with Arline Hogen
designated as the recipient of the net income from the Trust. Curtiss Hogen’s will
appointed his two children, Steven and Rodney Hogen, as co-trustees of the Trust and
authorized the Trust to continue the farming operation. Rodney Hogen continued
farming the land under a cash rent and crop-share agreement with the Trust and with
Arline Hogen, the owner of the other undivided one-half interest in the farmland.
[¶3]   Arline Hogen died in March 2007, and her will equally devised all her property
to Steven and Rodney Hogen. Steven Hogen was appointed personal representative
of Arline Hogen’s Estate, and during the probate of her estate, a dispute arose about
the financial obligations and arrangements for the farming operation and the
ownership of the farmland. Those disputes culminated in two prior appeals to this
Court involving Steven and Rodney Hogen and the property interests held by the
Estate of Arline Hogen and by the Curtiss A. Hogen Trust B. In re Curtiss A. Hogen
Trust B, 2018 ND 117, 911 N.W.2d 305; In re Estate of Hogen, 2015 ND 125, 863
N.W.2d 876.

                                           1
[¶4]   In Estate of Hogen, 2015 ND 125, ¶¶ 8-27, 863 N.W.2d 876, this Court
rejected Rodney Hogen’s argument that his share of his mother’s land vested in him
by operation of law immediately upon her death and held his interest in that land was
subject to probate administration and a retainer action by Steven Hogen as personal
representative of the Estate. We held that Rodney Hogen’s cash rent and crop-share
obligations to his mother’s estate were a noncontingent indebtedness subject to
probate administration and a retainer claim in the administration of her estate. Id. at
¶¶ 13-27. We explained a personal representative’s authority over title to a decedent’s
property was subject to estate administration and a devisee’s title to the property was
subject to administration and remained encumbered as long as the estate was in
administration or subject to further administration. Id. We concluded a devisee’s right
to a decedent’s property was subject to administration by a personal representative,
which may continue until termination of the personal representative’s appointment or
execution of an instrument or deed of distribution. Id. at ¶ 25. We concluded a
devisee’s title to a decedent’s property was encumbered as long as the estate was
subject to administration. Id. at ¶¶ 26-27.
[¶5]   In Hogen Trust, 2018 ND 117, ¶¶ 15-23, 911 N.W.2d 305, we rejected Rodney
Hogen’s arguments that his father’s trust immediately terminated as a matter of law
upon Arline Hogen’s death and that he and Steven Hogen automatically became fully
vested owners of the land as tenants in common upon her death. We concluded the
plain language of the Trust contemplated further and continuing action after the
surviving spouse’s death to effectuate a division of the Trust property into equal
shares. Id. We held the evidence supported the district court’s decision that the Trust
was entitled to an offset against Rodney Hogen’s share of the Trust property for his
breaches of fiduciary duties to the Trust. Id. at ¶¶ 24-36.
[¶6]   After the probate court issued an order approving the final accounting and
settlement in the probate of Arline Hogen’s estate in 2013 and before this Court’s
decision in Estate of Hogen, 2015 ND 125, 863 N.W.2d 876, Rodney Hogen and his
wife, Susan Hogen, executed quit claim deeds in February 2014, granting all their

                                           2
right, title, and interest in the tracts of land to their daughter, Marby Hogen, while
reserving a life estate for themselves. In June 2017, Marby and Susan Hogen brought
this quiet title action against Steven Hogen personally and as personal representative
of the Estate and as trustee of the Trust to quiet their title to the land described in the
February 2014 quit claim deeds. In June 2017, lis pendens were filed against the land
in the recorder’s offices in Barnes and Cass Counties, giving notice of the pending
quiet title action.
[¶7]   In October 2017, the district court ordered cancellation of the lis pendens. In
March 2018, the district court granted Steven Hogen’s motion for summary judgment,
explaining the interests of Marby and Susan Hogen depended on whatever interest
their grantor, Rodney Hogen, had in the farmland and that inquiry required separate
analyses of his interests in the property held by the Estate and held by the Trust.
[¶8]   In addressing the property held by the Estate, the district court relied
extensively on Estate of Hogen and ruled the Estate’s power over the title to the land
during the administration of the Estate was an encumbrance upon Rodney Hogen’s
title and interest as an heir and was superior to any interest of Marby and Susan
Hogen in the land. The court concluded any conveyance of the Estate’s interest in the
land to a third party extinguished the interests of Marby and Susan Hogen in the land.
The court rejected their argument that administration of the Estate was complete upon
entry of the probate court’s order approving the final settlement of the Estate in 2013,
because the Estate was still being administered under court order and Steven Hogen
remained the duly appointed personal representative of the Estate. The court
concluded:
       Steve Hogen, in his capacity as personal representative of the Estate
       of Arline Hogen, is entitled to summary judgment as a matter of
       law because administration of the estate is ongoing, and during
       administration Steven’s power over the title to the estate’s real property
       embraces all possible transactions which might result in a conveyance
       or encumbrance of the estate’s real property. Estate of Hogen, 2015 ND
       125 ¶ 20. Steven’s power over title is an encumbrance upon Rodney
       Hogen’s title to that property as an heir of the estate (id. at ¶ 26). Until
       administration of the estate is finalized in accordance with the orders

                                            3
       of the Cass County District Court, the personal representative’s plenary
       power over the title to all of the estate’s real property is superior to any
       right, title, or interest of Rodney Hogen, and therefore superior to any
       right, title, or interest that Marby or Susan Hogen acquired by and
       through the quit-claims deeds from Rodney. Rodney will have a
       superior title to or interest in any particular parcel of real property only
       if, and when, he receives a deed of distribution for that parcel from the
       estate’s personal representative.
[¶9]   In addressing the property held by the Trust, the district court relied
extensively on the trial court’s rulings in the Trust proceeding, which had not yet been
affirmed by this Court in Hogen Trust. The district court ruled the Trust did not
terminate immediately upon Arline Hogen’s death, an undivided one-half share of the
Trust land did not devolve to Rodney Hogen immediately upon her death, the Trust
was the absolute owner of the land, Steven Hogen was sole trustee of the Trust with
sole authority to act on behalf of the Trust, a co-trustee’s deed by Rodney Hogen to
himself and his brother was void, and Rodney Hogen’s subsequent quit claim deeds
to Marby and Susan Hogen were void to the extent they purported to convey any
Trust interest in the land to Marby and Susan Hogen. The court concluded:
       Rodney does not have any cognizable title or interest in any specific
       property owned by the trust, “only” a beneficial interest in a one-half
       share of the trust corpus. The trustee’s power and control over the
       trust’s property is equal to an absolute owner’s. N.D.C.C. § 59-16-15.
       Until the trust is terminated, the trustee—Steven—can sell or change
       the character of the trust property at any time. N.D.C.C. § 59-16-16(2),
       (3). The Cass County District Court has ruled that the trust did not
       terminate upon the death of Arline Hogen, and the trust is still being
       administered under the supervision of the Cass County District Court.
       Unless and until those rulings are overturned by the North Dakota
       Supreme Court, Rodney has no claim to the trust’s real property. To the
       extent the quit-claim deeds purport to convey any interest in real
       property owned by the Curtiss A. Hogen Trust B to Susan and Marby
       Hogen, they are nullities.
[¶10] The district court’s judgment also cancelled and discharged any lis pendens
related to the quiet title action.
                                            II



                                            4
[¶11] Marby and Susan Hogen argue the district court erred in not quieting title in
the farmland to them. They claim their title to the land is superior to the title of the
Trust and the Estate because when Rodney Hogen executed the quit claim deeds to
them, he was a vested owner of an undivided one-half interest in all the land through
his parents’ probated wills. They argue Rodney Hogen’s interest in the land fully
vested by operation of law when Arline Hogen died and he did not need a deed from
the personal representative or the trustee to transfer that interest to himself. They
argue their interests in the land are free from any claims by the Estate or by the Trust.
They also claim they are not bound by the decision in the Trust proceeding because
they were not parties to that proceeding.
[¶12] Steven Hogen responds summary judgment was appropriate because any
interest of Marby and Susan Hogen under the quit claim deeds from Rodney Hogen
was dependent on his interest in the land and it is undisputed that he will receive no
land from the Trust or Estate because the land has been sold to pay the retainer claims
incurred in the Estate proceeding and the offset expenses incurred in the Trust
proceeding.
[¶13] The district court decided this action by summary judgment, which is “a
procedural method to promptly resolve a controversy on the merits without a trial if
there are no genuine issues of material fact or inferences that reasonably can be drawn
from undisputed facts, or if the only issue to be resolved is a question of law.” Hogen
Trust, 2018 ND 117, ¶ 16, 911 N.W.2d 305. “Whether a district court properly
granted summary judgment is a question of law, which we review de novo on the
entire record.” Id.
[¶14] In a quiet title action, plaintiffs must recover on the strength of their own title.
Gajewski v. Bratcher, 221 N.W.2d 614, 637 (N.D. 1974); Woodland v. Woodland,
147 N.W.2d 590, 602 (N.D. 1966); Shuck v. Shuck, 77 N.D. 628, 634, 44 N.W.2d
767, 771 (1950). In Shuck, at 637, 44 N.W.2d at 773, this Court said that a grantee
obtaining no title under a deed from a grantor has no title to transfer to another. Shuck
recognizes the general rule that a transferor cannot convey an interest greater than the

                                            5
transferor has in the property, and a transferor who does not hold title to property
cannot pass or transfer title to that property. 23 Am. Jur. 2d Deeds § 7 (2013). See
N.D.C.C § 47-09-16 (“A transfer vests in the transferee all the actual title to the thing
transferred which the transferor then has unless a different intention is expressed or
is necessarily implied.”).
[¶15] Here, Marby and Susan Hogen obtained their interests in the land from Rodney
Hogen, and their interest in the land depends on his interest in the land. In this case,
their interest in the land is derived from Rodney Hogen’s quit claim deeds, and his
quit claim deeds conveyed only his interest or title, if any, in the land rather than the
land itself. See Carkuff v. Balmer, 2011 ND 60, ¶ 10, 795 N.W.2d 303; Gajewski, 221
N.W.2d at 637. Rodney Hogen’s interests in the land were determined in the Estate
and the Trust proceedings to be subject to the Estate administration and to an offset
in the Trust proceeding. We rejected Rodney Hogen’s arguments that he was
immediately vested with title to the land when his mother died. Hogen Trust, 2018
ND 117, ¶ 22, 911 N.W.2d 305; Estate of Hogen, 2015 ND 125, ¶¶ 1, 27, 863 N.W.2d
876. To the extent the appellants’ arguments in this case about the strength of their
title are based on arguments we rejected in those proceedings, we again reject those
arguments and we evaluate the appellants’ interests in the Estate and the Trust land.
[¶16] In Estate of Hogen, 2015 ND 125, ¶ 27, 863 N.W.2d 876, we held Rodney
Hogen’s interest in Estate property was subject to the personal representative’s power
during administration of the Estate to offset any noncontingent indebtedness of
Rodney Hogen to the Estate. Although Rodney Hogen claims the administration of
the Estate ended with the probate court’s order approving the final accounting and
settlement in the probate of the Estate in 2013, this record does not reflect an order
closing the Estate or discharging Steven Hogen as personal representative of the
Estate. See N.D.C.C. § 30.1-21-01. The probate court’s order approving the final
accounting in 2013 indicates the Estate was still subject to administration by the
personal representative. When Rodney Hogen issued the quit claim deeds to Marby
and Susan Hogen in February 2014, his interest in the land held by the Estate was still

                                           6
subject to administration. We agree with the district court’s conclusion that Steven
Hogen’s power over the Estate property as personal representative is superior to any
title or interest of Marby and Susan Hogen in the Estate property and that any
conveyance of that property to a third party by the personal representative
extinguishes their title or interest in the land. We affirm the summary judgment as to
the Estate land.
[¶17] In considering the Trust land, the district court in this action relied on the trial
court’s decision in the Trust proceeding, which ruled the Trust did not terminate upon
Arline Hogen’s death and voided quit claim deeds issued solely by Rodney Hogen as
co-trustee to himself and Steven Hogen on the grounds that the discretionary act
required consent of both trustees. The district court explained the prior Trust
proceeding authorized Steven Hogen, as sole trustee, to sell Trust property to pay
mortgages, claims against Rodney Hogen, and legal fees and costs incurred by the
Trust. The district court concluded the Trust was the absolute owner of the Trust land,
Steven Hogen had sole authority as trustee to act on behalf of the Trust, Steven Hogen
was authorized to sell Trust property, and Steven Hogen had not executed or delivered
deeds for Trust property to the Trust’s remainder beneficiaries. The court concluded
Rodney Hogen had no claim to the Trust land and to the extent his quit claim deeds
purported to convey Trust land to Marby and Susan Hogen, those deeds were
nullities. The district court’s rationale in this case is consistent with this Court’s
decision in Hogen Trust, 2018 ND 117, 911 N.W.2d 305, affirming the trial court’s
decision in the Trust proceeding. We conclude the court did not err in granting
summary judgment determining Marby and Susan Hogen had no interest in the Trust
land.
                                           III
[¶18] Marby and Susan Hogen argue good cause was not established to cancel their
lis pendens against the land. Because we affirm the summary judgment in the quiet
title action, we conclude any issue about whether the lis pendens was wrongfully
discharged is moot. N. Rock Island Plow Co. v. Jepson, 28 N.D. 29, 30, 147 N.W. 729

                                            7
(1914) (dismissing appeal from order cancelling lis pendens where original action was
affirmed).
                                         IV
[¶19] We have considered the remaining issues raised by the parties and conclude
they are either unnecessary for our decision or without merit. We affirm the summary
judgment.
[¶20] Jerod E. Tufte
      Daniel J. Crothers
      Jon J. Jensen
      Lisa Fair McEvers
      Gerald W. VandeWalle, C.J.




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