#29225-r-MES

2021 S.D. 20

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE

ESTATE OF

NORMAN D. FRENCH, Deceased.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

BEADLE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JON R. ERICKSON

Retired Judge

* * * *

CASEY N. BRIDGMAN of

Bridgman & Anderson Law Firm

Wessington Springs, South Dakota Attorneys for petitioner

and appellant, Norman D. 

French Estate.

DOUGLAS E. KLUDT of

Churchill, Manolis, Freeman,

 Kludt & Shelton, LLP

Huron, South Dakota Attorneys for respondent

and appellee, Noreen French.

* * * *

CONSIDERED ON BRIEFS

AUGUST 24, 2020

OPINION FILED 03/10/21
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SALTER, Justice

[¶1.] The Estate of Norman D. French (the Estate) appeals the circuit 

court’s decision to apply the doctrine of equitable tolling, allowing Noreen French to 

commence an action to enforce a contract for deed relating to the sale of two quarter 

sections of farmland. We reverse the circuit court’s order applying equitable tolling 

and remand the case to the circuit court with instructions to discharge the contract 

for deed pursuant to SDCL 21-51-1.

Background

[¶2.] Norman French farmed two quarters (320 acres) of land in Beadle 

County. In 1982, he entered into a contract for deed with Alan and Noreen French, 

his son and daughter-in-law, to sell the two quarters to them for $100,000. The 

terms of the contract required Alan and Noreen to pay $48,000 when the contract 

was signed and make annual principal and interest payments of $3,100

commencing on May 1, 1982, and continuing for twenty years. Assuming full 

payment, Norman would have been obligated to convey the land to Alan and Noreen 

after the anticipated completion date of May 1, 2002.

[¶3.] In 1982, Alan and Noreen moved onto the property and farmed the two 

quarters. Although they moved off their farmstead in 1996, they continued farming 

the two quarters. Norman passed away on March 11, 2010, and Alan passed away 

on June 9, 2014. Noreen and her three sons farmed the land until 2017. Alan and 

Noreen, and later just Noreen, paid the real estate taxes on the property each year, 

from 1982 to 2017.
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[¶4.] In 2016, Noreen attempted to use the land as collateral for a loan and 

learned that Norman had never conveyed the two quarters. A title search 

confirmed that the property was still titled in Norman’s name. Noreen approached 

Diane Breitag, one of Norman’s daughters, requesting that she and her sister, 

Denise Hofeman, as Norman’s successors in interest, help her clear the title. They 

were unwilling to do so and retained counsel.

[¶5.] Although there were no estate proceedings when Norman died six 

years earlier, Diane and Denise commenced the current estate action. Denise was 

appointed to serve as the personal administrator of her father’s estate. Noreen also 

retained counsel, and the parties engaged in unsuccessful efforts to resolve their 

dispute beginning in late 2016. At issue was whether Alan and Noreen had, in fact, 

paid all of the money due under the contract for deed. Noreen’s attorney expressed 

her position in a January 18, 2017 letter to counsel for the Estate:

Noreen states that although she can’t find proof of payment as it 

was over 30 years ago, she knows that payments were made to 

Norman by Al[an] whenever Norman needed money. She 

believes that the property had been paid in full and that 

discussions between herself and Al[an] indicated that Al[an] had 

spoken to Norman and Norman had stated that he just wanted 

Al[an] to have the property and that any debts owed had been 

taken care of through the money that had been given. So 

basically there was an Accord and Satisfaction.

[¶6.] The explanation was not satisfying to the Estate, whose attorney 

explained in an April 6, 2017 response, “We wanted to give Noreen the chance to 

prove any payments that have been made on this land; however, she comes forth 

with no payments . . . .” Citing the fact that the contract price for the land “was 

supposed to have been paid off in 2002[,]” counsel for the Estate argued that 
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Norman had several years before his death in 2010 to either gift the land to Alan 

and Noreen or convey the property under the terms of the contract. Yet, he did 

neither.

[¶7.] Although the negotiations between the parties were unfruitful, Noreen

did not commence an action to enforce the contract for deed, at least not before the 

Estate acted. On August 17, 2018, over 16 years after the anticipated contract 

completion date, the Estate petitioned the court to discharge the contract for deed 

under the provisions of SDCL 21-51-1. The statute provides that a contract for the 

purchase of real property will be discharged if an action seeking performance is not 

commenced within 15 years after accrual of the cause of action or 15 years after the 

last payment was due. In instances where “there be no conveyance of record from 

the vendor or his successor in interest to the purchaser or his successor in interest, 

such contract or bond shall be conclusively presumed to have been terminated 

. . . .”1 Id.

[¶8.] The circuit court held a hearing on the Estate’s petition to discharge 

the contract for deed and ultimately decided to hold the petition in abeyance to 

facilitate additional discovery. These efforts confirmed certain peripheral facts, 

such as Norman had a good relationship with Alan, Norman retained mental clarity 

 

1. Although SDCL 21-51-1 is not cited, Noreen’s attorney wrote to her on 

December 22, 2016, and explained the essence of the Estate’s statutory 

argument. Noreen’s attorney wrote specifically that the Estate is “claiming 

you are in default on the contract and therefore that they may terminate the 

Contract for deed and you would forfeit any payments that you have made 

and you would have to give up the land.” The letter is contained in the record 

and was submitted by Noreen’s current attorney whose former law partner 

originally represented Noreen.
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up until his death, and both Norman and Alan personally handled their financial 

affairs throughout their lifetimes. However, additional discovery did not answer 

the principal question of whether Alan and Noreen had paid the entire purchase 

price for the two quarters of land.

[¶9.] The Estate did acknowledge proof that $65,138.01 was paid by Alan 

and Noreen under the contract.2 The Estate suggests that the $34,861.99 balance 

necessary to fulfill the contract was not paid.

[¶10.] For her part, Noreen continued to assert all of the payments were 

made under the contract, but she admitted in an affidavit that she “has no proof 

that all such payments were made.” Beyond a brief initial affidavit and a 

subsequent affidavit to which Noreen attached certain Farm Service Agency (FSA) 

documents, the record contains no testimony from Noreen. The FSA documents 

contain references to the contract for deed, but they do not support the view that all 

the payments were made.

[¶11.] The FSA documents include Farm and Home Plans and actual 

statements of income and expenses dating back from 2003. The FSA Plans 

consistently show a long-term debt obligation for the “N. French CFD,” or Norman 

French contract for deed. However, a significant balance due remained up to and 

through the anticipated May 1, 2002 completion of the contract for deed. The 2002 

FSA Plan listed the remaining balance as $15,951, and the 2003 FSA Plan stated

an increased balance of $16,900.

 

2. The circuit court found that Norman had acknowledged receipt of $48,000 at 

the time the contract for deed was executed and that Diane and Denise 

admitted payment of an additional $17,138.01.
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[¶12.] In any event, the parties completed their discovery efforts over the 

course of approximately eleven months, and the circuit court conducted another 

hearing on the Estate’s petition to terminate the contract for deed under SDCL 21-

51-1. In its subsequent findings of fact and conclusions of law, the court found that 

Noreen “believes all of the remaining purchase price was paid under the Contract 

for Deed but has no direct written proof that it was.” The court determined that the 

“statute of limitations set forth in SDCL 21-51-1 elapsed in this case.”3 

Nevertheless, the court denied the Estate’s petition and applied the doctrine of 

equitable tolling to extend the statute of limitations for an action Noreen had not 

filed. Although three years had elapsed since Noreen first engaged counsel, the 

court concluded that she should “be given a short amount of time . . . to file an 

action against the Estate to enforce the Contract for Deed.”

[¶13.] Noreen filed her complaint in a separate action on November 1, 2019. 

In it, she alleged, among other things, that “Noreen . . . and . . . Alan have satisfied 

their obligations under the Contract for Deed” and requested that the court order 

the Estate to deliver a deed conveying legal title to the two quarters of farmland.

[¶14.] The Estate raises several issues for our review. We consolidate and 

restate the principal issue as: Whether the circuit court erred when it failed to 

discharge the contract for deed and instead applied the doctrine of equitable tolling 

to allow Noreen to file suit after the 15-year limitation period had expired.

 

3. The circuit court did not receive any evidence at the hearing and apparently 

relied upon affidavits and information filed with the clerk for its factual 

findings. Though this method of developing a factual record does not allow 

proffered information to be tested by the rules of evidence or the adversarial 

process, neither party has objected to its use here.
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Analysis

[¶15.] The text of SDCL 21-51-1 provides in relevant part:

An action upon a contract . . . for the purchase or sale of real 

property . . . must be commenced within fifteen years after the 

cause of action shall have accrued, or within fifteen years after 

the last payment thereunder shall have become due and 

payable, and, if not so commenced, such action shall be forever 

barred, and such contract . . . shall become null and void and if 

there be no conveyance of record . . . , such contract . . . shall be 

conclusively presumed to have been terminated, and such 

contract or bond shall cease to be notice of any rights of the 

purchaser and said period of fifteen years shall not be extended 

by . . . partial payment.

[¶16.] By its express terms4, the statute applies to contracts for the purchase 

of real property and provides two potential dates for the commencement of the 15-

year limitation period—either the date on which an action to enforce the contract 

accrued5 or the date on which the last payment was due. However, SDCL 21-51-1 

does more than simply provide for a limitation period.

[¶17.] The provisions of SDCL 21-51-1 also seek to clarify the status of real 

property that was the subject of a contract for purchase in instances where the 

contract remains unfinished or unenforced at the end of the applicable 15-year 

period. In the event there has been no action and the seller has not conveyed a deed 

to the purchaser within the 15-year period, the clear and unambiguous terms of the 

 

4. “Statutory interpretation presents a question of law reviewable de novo.” 

Zoss v. Schaefers, 1999 S.D. 105, ¶ 6, 598 N.W.2d 550, 552 (citation omitted).

5. “A cause of action accrues when the right to sue arises[,] . . . [which occurs] 

. . . when a person has some notice of his cause of action, an awareness either 

that he has suffered an injury or that another person has committed a legal 

wrong which ultimately may result in harm to him.” Spencer v. Estate of 

Spencer, 2008 S.D. 129, ¶ 16, 759 N.W.2d 539, 544 (citations and internal 

quotation marks omitted).
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statute provide that: (1) any action to enforce the contract is “forever barred[;]” (2) 

the contract becomes null and void; and (3) the contract “shall be conclusively 

presumed to have been terminated[.]” If not completely self-executing, these 

provisions are close. To invoke the consequential terms of SDCL 21-51-1 and 

discharge the contract, a seller need only present proof to the circuit court that the 

“conditions prescribed by § 21-51-1 exist.” SDCL 21-51-2; see also SDCL 21-51-9 

(stating that “[t]he court may render judgment upon the record and proof required 

by this chapter canceling and discharging the instrument”).6

[¶18.] Here, the parties and the circuit court operated under the belief that 

the correct date for commencing the 15-year period was May 1, 2002, the date on 

which the last payment was due under the contract. The court specifically 

concluded that “[t]he statute of limitations set forth in SDCL 21-51-1 elapsed in this 

case.” Noreen has not challenged that determination on appeal and has not argued 

that she had a cause of action which accrued after May 1, 2002. Nor has she 

objected to the circuit court’s determinations that Norman did not convey a deed to 

the farmland and that the 15-year period expired without commencement of an 

action to enforce that contract. In fact, Noreen expressly stated in her brief to this 

 

6. Before the circuit court, Noreen argued that the court could exercise its 

discretion and refuse to discharge the contract given the “may” text of SDCL 

21-51-9. Noreen has not offered the same argument on appeal, and in fact, 

she has not responded to the Estate’s claim that the court erred by not 

discharging the contract under the provisions of SDCL chapter 21-51. 

Rather, Noreen has confined her arguments on appeal to the assertion that 

the court acted within its discretion by applying the doctrine of equitable 

tolling.
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Court that “the facts in this case are not disputed” and admitted that “the statute of 

limitations in SDCL 21-51-1 had expired.”

[¶19.] Set against this backdrop, the circuit court’s statutory course was 

clear. It is undisputed that the “conditions prescribed by SDCL 21-51-1” were 

present—the expiration of the 15-year period without commencement of an action 

and the absence of a deed conveying the real estate. See SDCL 21-51-2. The 

Estate’s action seeking discharge was specifically authorized by the text of SDCL 

21-51-1, and the circuit court should have applied the statutes and discharged the 

contract for deed. The court’s contrary decision to apply the doctrine of equitable 

tolling to avoid what it determined to be an inequitable result is not sustainable.

[¶20.] At the outset, the availability of equitable tolling within our common 

law is not a forgone conclusion. We have not officially adopted the equitable tolling 

doctrine for civil cases, see Anson v. Star Brite Inn Motel, 2010 S.D. 73, ¶ 15 n.2, 788 

N.W.2d 822, 825 n.2, and as Justice Konenkamp has noted, there are serious 

questions about whether it could be incorporated into our decisional law, see id. ¶¶

36-40 (Konenkamp, J., concurring).

[¶21.] Noreen’s principal argument on appeal is premised upon the claim that

we limited any reluctance to adopt the doctrine of equitable tolling to statutes of 

repose in Pitt-Hart v. Sanford USD Medical Center, 2016 S.D. 33, 878 N.W.2d 406. 

In Pitt-Hart, we explained the distinctions between statutes of repose and statutes 

of limitation, noting, among other things, that concepts of estoppel and tolling are 

“inapplicable to a period of repose[,]” but “tolling a period of limitation or estopping 

a party from asserting it as a defense may be proper[.]” 2016 S.D. 33, ¶ 21, 878 
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N.W.2d at 414 (emphasis omitted). However, these general statements were not a 

definitive adoption of the doctrine of equitable tolling for statutes of limitations and, 

set in context, were offered simply to mark the critical differences in the legislative 

purposes underlying limitation and repose periods. See id. Regardless, the 

question of whether SDCL 21-51-1 contains a statute of limitation or a repose 

period is purely academic here7 because even if equitable tolling was an authorized 

remedy, Noreen could not avail herself of it.

[¶22.] “The threshold for consideration of equitable tolling is inequitable 

circumstances not caused by the plaintiff that prevent the plaintiff from timely 

filing.” Anson, 2010 S.D. 73, ¶ 16, 788 N.W.2d at 826. Noreen made no showing 

before the circuit court that she was prevented from commencing an action for 15

years after the last payment was due on May 1, 2002. Although she asserts that 

Alan managed the family’s financial affairs, Noreen has not established how this 

would have prevented the commencement of an action to enforce the contract for 

deed. If Noreen and Alan had, in fact, paid the entire purchase price for the land, 

they could have brought the action prior to Alan’s 2014 death, or Noreen could have 

 

7. The fact that the 15-year limitation period that applies here commenced on 

the date the last payment was due without regard to accrual of a claim is 

more consistent with a statute of repose than a statute of limitation. See In 

re Elizabeth A. Briggs Revocable Living Tr., 2017 S.D. 40, ¶ 9 n.5, 898 

N.W.2d 465, 469 n.5 (“A statute of repose bars all actions after a specified 

period of time has run from the occurrence of some event other than the 

occurrence of an injury that gives rise to a cause of action.” (quoting Peterson 

ex rel. Peterson v. Burns, 2001 S.D. 126, ¶ 41, 635 N.W.2d 556, 570)). Of 

course, SDCL 21-51-1 also includes an alternate 15-year limitation period 

which runs from the date of accrual without any textual indication as to 

which period takes precedence. However, we leave for another day the 

question of whether SDCL 21-51-1 provides for a statute of limitation or 

repose, or both.
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commenced the action later in her own name during the roughly three years that 

remained on the limitation period. In fact, the record indicates that Noreen had 

engaged counsel in November of 2016, over six months prior to the expiration of the 

15-year period.

[¶23.] Finally, our reading of SDCL 21-51-1 leads us to conclude that the 

Legislature contemplated precisely the type of circumstances the circuit court found 

to be unacceptably harsh. For instance, the commencement of the 15-year 

limitation period need not be connected to accrual, but could instead begin to run on 

the date of the last scheduled payment. This means, among other things, that the 

parties inattention to the contract’s terms or enforcement will not forestall the 

running of the period. The provisions of SDCL 21-51-1 also specifically account for 

the absence of a conveyance and do not distinguish between instances where the 

seller simply overlooked the obligation to convey a deed from cases where the buyer 

failed to make all of the payments. In drafting the statute as it did, the Legislature 

allowed for a lengthy period within which parties to a contract for deed could act to 

enforce their rights, but in the absence of such an effort, the Legislature sought to 

provide certainty and marketability for the real property whose status might 

otherwise be unclear.8

[¶24.] We reverse the circuit court’s order applying the doctrine of equitable 

tolling and remand this case with instructions to discharge the contract pursuant to 

SDCL 21-51-1.

 

8. Our disposition here results only in the discharge of the contract for deed. 

There is no other question before us, and we express no opinion as to any 

other potential remedy concerning the circumstances of this case.
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[¶25.] JENSEN, Chief Justice, and KERN and DEVANEY, Justices, and 

GILBERTSON, Retired Chief Justice, concur.

[¶26.] MYREN, Justice, not having been a member of the Court at the time 

this action was submitted to the Court, did not participate.