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

2019 ND 13

George Seccombe, Barbara Treska, Erik Naesset, Helge Naesset, Astri Holst, Irene Markle, and Alice Nasset, Plaintiffs and Appellants

and
Slawson Exploration Company, Inc. and Alameda Energy, Inc., Plaintiffs-Intervenors and Appellants

v. Bradley C. Rohde and Karen D. Rohde, Trustees of the Bradley C. Rohde Living Trust dated June 22, 2010, Anita Rohde, Trustee of the Anita Rohde Living Trust UDT October 8, 2009, Dennis Rohde, Trustee of the Dennis Rohde Living Trust UDT October 8, 2009, Gary Rohde; Bradley Rohde; Dennis Rohde; Northern Oil and Gas, Inc., Ryan Family Mineral Partnership, S. Reger Family Mineral Partnership, S. Reger Family, Inc., Kootenia Resources Corporation, Summerfield C. Baldridge, Beartooth Ridge Resources, Inc., Montana Oil Properties, Inc., Lakeside State Bank, and all persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the compla int, Defendants and Appellees

No. 20180069

Appeal from the District Court of Mountrail County, North Centr al Judicial District, the Honorable Gary H. Lee, Judge.AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice

.
Rachel A. Bruner (argued), Patrick W. Durick (on brief), and Benjamin W. Keup (on brief), Bismarck, ND, for plaintiffs and appellants George Seccombe, Barbara Treska, Erik Naesset, Helge Naesset, Astri Holst, Irene Markle, and Alice Nasset.
Adam M. Olschlager (argued), Griffin B. Stevens (appeared), and Uriah J. Price (on brief), Bozeman, MT, for plaintiffs-intervenors and appellants Slawson Exploration Company, Inc., and Alameda Energy, Inc.
Scott M. Knudsvig (argued), and Matthew H. Olson (on brief), Minot, ND, for defendants and appellees Anita Rohde, Bradley C. Rohde, Dennis Rohde, Gary Rohde, and Karen D. Rohde.

Andrew D. Cook (argued), Michel W. Stefonowicz (on brief), Robert G. Hoy (on brief), West Fargo, ND, and Loren J. O’Toole II (on brief), Plentywood, MT, for defendants and appellees Ryan Family Mineral Partnership, S. Re ger Family Mineral Partnership, S. Reger Family, Inc., Kootenia Resources Corporat ion, Summerfield C. Baldridge, Beartooth Ridge Resources, Inc., and Montana Oil Pro perties, Inc.

Richard P. Olson (argued), and Wanda L. Fischer (on brief), Minot, ND, for defendant and appellee Lakeside State Bank.

Lawrence Bender (on brief), Bismarck, ND, for defendant and appellee Northern Oil and Gas, Inc.

2Seccombe v. Rohde
No. 20180069

VandeWalle, Chief Justice. [¶1] George Seccombe and other heirs of Olaf Nasset (“Nasset hei rs”) and the intervener plaintiffs, Slawson Exploration Company, Inc., and A lameda Energy, Inc., appealed from a judgment deciding ownership of certain minerals in Mountrail County. We conclude the district court properly determined own ership of the minerals and did not err in dismissing the Nasset heirs’ breachof fiduciary duty claim.
We affirm.

I [¶2] Olaf Nasset owned real property in Mountrail County describ ed as the southeast quarter of section 5 and the northeast quarter of sec tion 8 of township 151 north, range 92 west. He owned fifty percent of the minerals i n the property. [¶3] Olaf Nasset died in November 1961, and Lakeside State Bank was appointed the executor of his estate. On January 24, 1962, Lakeside petit ioned the county court for authority to sell real property belonging to the estate. T he petition stated it was
in the best interest of the estate and the heirs to sell the re al property described as: Township 151 North, Range 92 West: Section 5: SE1/4 Section 8: NE: [sic] The estate reserved 1/2 of the mineral interest in and to the a bove described real estate. On February 26, 1962, the county c ourt ordered the executor was authorized to sell the property, but the court stated, “The estate reserves a 1/2 mineral interest” in the property. [¶4] Notice of the sale of the property was published in a local newspaper in March 1962, describing the property for sale as: TOWNSHIP 151 NORTH, RANGE 92 WEST, MOUNTRAIL COUNTY, NORTH DAKOTA:

1Section 5: SE1/4 Section 8: NE1/4 The estate reserves a 1/2 mineral interest in and to the above described real estate. Gilbert Rohde bid on the property for $15,600. Gilbert Rohde’s bid included a legal description of the property without including the mineral reser vation. On April 9, 1962, Lakeside filed a report of sale of real property. The re port contained the legal description of the property without the mineral reservation. [¶5] On April 9, 1962, the county court confirmed the sale and d escribed the property sold as, “Southeast Quarter (SE1/4) of Section Five (5 ) and Northeast Quarter (NE1/4) of Section Eight (8), Township One Hundred Fifty-one (151) North, Range Ninety-Two (92) West of the Fifth Principal Meridian.” O n April 16, 1962, an executor’s deed transferring the property to Gilbert Rohde w as recorded in the Office of the Register of Deeds of Mountrail County. The executor’s deed described the property as “Southeast Quarter (SE1/4) of Section Five (5) and Northeast Quarter (NE1/4) of Section Eight (8), Township One Hundred Fifty-one (1 51) North, Range Ninety-Two (92) West of the Fifth Principal Meridian.” [¶6] On April 25, 1962, the county court entered an amended orde r confirming the sale of the real property. The amended order included a descri ption of the property stating the property sold is: Southeast Quarter (SE1/4) of Section Five (5) and Northeast Quarter (NE1/4) of Section Eight (8), Township One Hundred Fifty-one (1 51) North, Range Ninety-two (92) West of the Fifth Principal Meridi an. The estate reserves a 1/2 mineral interest in and to the above described real estate. On May 8, 1962, an amended executor’s deed was recorded with th e Office of the Register of Deeds in Mountrail County. The amended executor’s deed included the same property description as the amended order confirming the s ale, including the language about the mineral reservation. The amended deed also stated, “This deed is given to correct that certain Executor’s Deed dated April 16 , 1962, and filed for record April 16th, 1962 in Book 350 at page 159.”

2[¶7] On July 13, 1962, the county court entered the final decree of distribution. The
decree stated each of the five named heirs received one-fifth o f the personal property, which included $20,814.37. On August 6, 1962, the county court ordered the final discharge of the executor. On August 10, 1962, the executor pe titioned to re-open the estate. The petition stated the reserved mineral interests wer e inadvertently left out of the final decree and it was necessary that the estate be reo pened for the sole purpose of correcting the error by entering an amended final de cree of distribution including the 1/2 mineral interest. The county court granted the petition. On August 10, 1962, an amended final decree of distribution was entered, stating each of the five
named heirs received a 1/10 mineral interest. [¶8] In 2012, the Nasset heirs sued the heirs of Gilbert Rohde a nd other parties claiming an interest in the minerals through the Rohde heirs. The Nasset heirs sought to quiet title and determine ownership of the minerals, revisio n of the executor’s deed, and damages for a slander of title claim. They alleged the ori ginal heirs of Olaf Nasset intended to reserve a one-half mineral interest and theyare entitled to receive legal title to one-half of the minerals as provided in the publ ished notice of sale of the real property and the amended executor’s deed. The Nasset heir s also sued Lakeside for breach of fiduciary duty, alleging Lakeside had fiduciary o bligations to the estate,
it was aware or should have been aware of the heirs’ intention to retain a one-half mineral interest, and it breached its fiduciary duty by executi ng the executor’s deed to Gilbert Rohde without properly reserving the mineral interes ts. [¶9] Lakeside answered the Nasset heirs’ complaint and also move d for summary judgment. Lakeside argued the breach of fiduciary duty claim w as barred by the statute of limitations on proceedings against personal represen tatives. The Nasset heirs opposed the motion, arguing the statute of limitations di d not bar their claim. The district court granted Lakeside’s motion for summary judgme nt. The court concluded the Nasset heirs’ breach of fiduciary duty claim agai nst Lakeside was barred by the statute of limitations under N.D.C.C. § 30-24-13 (1960) or N.D.C.C. §
30.1-21-05.

3[¶10] The Rohde heirs answered the Nasset heirs’ complaint and c ounterclaimed to quiet title and determine ownership of the minerals in their fa vor. (Rec. 22, 136) Defendant Northern Oil and Gas, Inc. (“Northern”), answered and counterclaimed to quiet title and for a declaratory judgment that Gilbert Rohde a cquired a one-half interest in the minerals. Defendants S. Reger Family Mineral P artnership, Ryan Family Mineral Partnership, Kootenai Resources Corporation, Summerfield C. Baldridge, and Montana Oil Properties Inc. (collectively “Montana defendants”), answered and counterclaimed for a declaratory judgment and to q uiet title. [¶11] Slawson and Alameda moved to intervene as plaintiffs. The y claimed they have an interest in the property, including that Slawson is the owner of an oil and gas leasehold estate through oil and gas leases executed by the Nas set heirs and that Alameda owns an undivided mineral interest in the property. Th e district court granted the intervener plaintiffs’ motion. The intervener plai ntiffs filed a complaint, requesting a declaratory judgment related to ownership of the m inerals and to quiet title. The Rohde heirs, Northern, and the Montana defendants e ach answered the plaintiff intervener’s complaint and counterclaimed seeking a d eclaratory judgment related to ownership of the minerals and to quiet title. [¶12] The Rohde heirs, the Montana defendants, and Northern eachmoved for summary judgment. The Nasset heirs and intervener plaintiffs e ach filed crossmotions for summary judgment. [¶13] After a hearing, the district court granted summary judgme nt in favor of the Rohde heirs and against the Nasset heirs, quieted title in favo r of the Rohde heirs, and
dismissed the Nasset heirs’ claim for slander of title. The di strict court concluded the Rohde heirs own the minerals because the original executor’s de ed approved by the court was final, a legal action was required to undo the execut or’s deed, neither the
heirs nor the executor commenced an action to correct or vacate the deed, and therefore the subsequent orders a nd the amended deed had no eff ect. The court also concluded the Nasset heirs’ claims were barred by the statute o f limitations.

4II [¶14] Our standard for reviewing summary judgments is well-estab lished: Summary judgment is a procedural device for the prompt resoluti on of a controversy on the merits without a trial if there are no gen uine issues of material fact or inferences that can reasonably be drawn fro m undisputed facts, or if the only issues to be resolved are ques tions of law. A party moving for summary judgment has the burden of show ing there are no genuine issues of material fact and the moving par ty is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable infer ences which can reasonably be drawn from the record. On appeal, this Court decides whether the information av ailable to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review d e novo on the entire record. Gerrity Bakken, LLC v. Oasis Petroleum N. Am. , LLC , 2018 ND 180, ¶ 8 , 915 N.W.2d 677 (quoting Arnegard v. Arnegard Twp. , 2018 ND 80, ¶ 18 , 908 N.W.2d 737).

III [¶15] The Nasset heirs and the in tervener plaintiffs argue the d istrict court erred in deciding ownership of the mineral interests. They claim the sal e was a statutory probate proceeding strictly governed by the judicial sale proce dures of N.D.C.C. ch. 30-19 (1960) and under statutory procedures the minerals were r eserved to the estate. They also contend the district court erred in deciding their qu iet title claim was barred by the statute of limitations.

A [¶16] The Rohde heirs, Northern, and the Montana defendants argu e the district court properly determined the Nasset heirs’ claims are barred by the statute of limitations.

5They claim N.D.C.C. § 30-24-13 (1960) applies and provides a th ree-year statute of
limitations. [¶17] At the time of the sale of the property, N.D.C.C. § 30-24- 13 (1960) provided
a statute of limitation for actions to recover an estate or set aside a decree, stating: No action for the recovery of any estate sold by an executor or administrator or otherwise disposed of under the provisions of chapter 30-19 can be maintained by any heir or other person claiming un der the decedent unless it is commenced within three years next after the sale. An action to set aside a decree directing or confirming a sale or otherwise disposing of such property may be instituted and main tained at any time within three years from the discovery of the fraud or other ground upon which the action is based. [¶18] The district court concluded N.D.C.C. § 30-24-13 barred th e Nasset heirs’ claims because the action was commenced approximately 47 years after the sale of the property and after the three-year statute of limitations ex pired. The court concluded the statute barred all of the heirs’ claims, which in cluded their claims to quiet title and revision of the executor’s deed. On appeal, th e Nasset heirs and intervener plaintiffs only raise issues related to the quiet ti tle claim. Therefore, we will decide whether N.D.C.C. § 30-24-13 barred the quiet title claim. [¶19] As to the Nasset heirs’ quiet title claim, the heirs reque sted the court determine
that the Rohde heirs have no interest in the minerals under the property and that title to one-half of the minerals be quieted in the Nasset heirs. Other parties also filed claims or counterclaims to quiet title. The parties disputed the ownership of the property and requested the court determine ownership based on the events that
occurred in 1962. In Kranz v. Tavis , 49 N.D. 553, 192 N.W. 176, 178 (N.D. 1922), this Court held a prior version of N.D.C.C. § 30-24-13 merely l imited the time in which an equitable action may be maintained to set aside a decr ee of the county court, directing or confirming the sale of property, or otherwise disp osing of property. The Nasset heirs did not request the district court set aside the c ounty court’s order confirming the sale of the prope rty in their quiet title claim; rather, the Nasset heirs argue the disputed property was reserved by the estate and was never sold to Gilbert Rohde. The Nasset heirs did not request the court take any aff irmative action in their
6quiet title claim. The quiet title claim was to determine owne rship of the minerals and to clear the title on which the Nasset heirs were the apparent record title holder. The quiet title claim is not an action to recover property sold by the executor, and therefore the statute of limitations under N.D.C.C. § 30-24-13 does not apply. We
conclude the district court erred to the extent it concluded N. D.C.C. § 30-24-13 barred the quiet title claim.

B [¶20] The Nasset heirs and intervener plaintiffs argue the miner als were reserved to the estate by operation of law because N.D.C.C. ch. 30-19 requi red compliance with several procedures and the statutory requirements are jurisdict ional in nature. They contend N.D.C.C. ch. 30-19 required the executor to file a veri fied petition describing the property to be sold, the county court only obtained jurisdi ction over the property to the extent the property interest was described in the petiti on, and the court only had jurisdiction to bind interested persons to the extent the prope rty interest was described in the public notice of the sale. They claim the court did not have jurisdiction to approve the sale of the property with the minerals and the exec utor did not have authority to sell the minerals when the statutory procedures we re not complied with. [¶21] When a proceeding for the sale of real property is institu ted by a petition filed with the court, the court acquires jurisdiction if the petitionconforms to the statutory requirements; the statute must be substantially complied with. See Skachenko v.
Sweetman , 77 N.D. 502, 43 N.W.2d 683, 686 (1950). The interpretation and application of a statute is a question of law, which is fully r eviewable on appeal. In re Estate of Conley , 2008 ND 148, ¶ 15 , 753 N.W.2d 384. [¶22] When the county court ordered the sale of the property at issue in this case, N.D.C.C. § 30-19-05 (1960) provided the statutory requirements for a petition, stating: To obtain an order for the sale of real property, an executor o r administrator must present a verified petition to the court, se tting forth: 1. The amount of the personal estate that has come to his hands;

72. How much thereof, if any, remains undisposed of; 3. The debts outstanding against the decedent, as far as can be ascertained or estimated; 4. The amount due on the family allowance; 5. What will be due on the family allowance after the same has been in force for one year; 6. The debts, expenses, and charges of administration already accrued; 7. An estimate of what debts, expenses, and charges will or may accrue during the administration; 8. A general description of all the real property of which the decedent died seized, or in which he had any interest, or in which the estate has acquired any interest; 9. The condition and value of such real estate; 10. The names of the heirs, legatees, and devisees, if known to the petitioner; and 11. The way in which advantage or benefit will accrue to the est ate and those interested therein, if the petition is made on the ground that it is for the advantage, benefit, and best interest s of the estate, and those interested therein, that a sale be made. If any of such matters cannot be ascertained, it must be so sta ted in the petition, but a failure to set forth facts hereinbefore enumera ted will not invalidate the subsequent proceedings, if the defects are suppl ied by the proofs at the hearing, or it is stated in the decree that such sale is necessary, or for the advantage, benefit, and best interests of the estate and those interested therein. [¶23] Here, the petition for sale of the real property stated th ere was $10,100 in the personal estate, the entire amount of the personal estate was undisposed of, the amount of the debts outstanding was undetermined, and there was no family
allowance due and no amount would be due after one year. The p etition also stated $27 in debts, expenses, and charges of administration had accru ed and an estimated $95 would accrue. The real property Olaf Nasset had any intere st in or in which the estate had acquired an interest was described as: TOWNSHIP 151 NORTH, RANGE 92 WEST: Section 5: SE1/4 Section 8: NE1/4 The property was described as being in “very good” condition an d value. The petition included names of the heirs, legatees, and devisees of the dece dent. The petition stated

8the property was being sold for the advantage, benefit, and bes t interests of the estate
because the sale was “for the best interest of the estate and the heirs.” The petition also included a description of the property to be sold and stat ed, “The estate reserved
1/2 of the mineral interest in and to the above described real estate.” [¶24] The Nasset heirs and intervener plaintiffs do not argue th e petition did not substantially comply with statutory requirements of N.D.C.C. § 30-19-05. That statute did not require the petition to describe the property t o be sold; rather, the plain language of the statute only required the petition to generally describe all real property in which the decedent had any interest. The petition included a general description of all the real property Olaf Nasset owned at the t ime of his death. Because the petition substantially complied with statutory requ irements and the statute only required a general de scription of the property Ola f Nasset owned when he died, the county court acquired jurisdiction over the descri bed property, including
the minerals. [¶25] “After the court obtains jurisdiction, all nonjurisdiction al irregularities and defects between the acquisition of jurisdiction and the order o f confirmation are
cured.” Brand v. Brand , 65 N.W.2d 457, 461 (N.D. 1954) (quoting 34 C.J.S.
Executors and Administrators § 611, pp. 588 and 589). When the sale is required to be confirmed by statute, the order of confirmation cures all no njurisdictional errors and irregularities, and any objections to the sale because of t he errors or irregularities
must be made before confirmation. See Baird v. Sax Auto Co. , 70 N.D. 53, 291 N.W. 696, 701 (1940) ; see also 31 Am. Jur. 2d Executors and Administrators § 774 (stating confirmation cures allegedly unauthorized acts of the executor in selling the property without strictly complying with statutory procedures). Once th e county court obtained jurisdiction, any errors in the property description i n subsequent proceedings constitute irregularities which can only be challenged by direc t attack. Cathro v.
McArthur , 30 N.D. 337, 152 N.W. 686, 687 (1915). [¶26] After the county court obtained jurisdiction, it authorize d the sale of the property reserving the minerals, and notice of the sale of the property and the 1/2

9mineral interest reservation was published in the local newspap er. Gilbert Rohde bid on the property giving the legal description of the property, w ithout including the mineral reservation. The executor filed its report of sale, in cluding a description of the property that did not contain the mineral reservation. Sect ion 30-19-18, N.D.C.C. required the county court to examine the proceedings, determine whether the proceedings were fair, and confirm the sale and direct the conv eyance to be executed if the court found the sale was legally made and fairly conduct ed. The court confirmed the sale of the property without reserving the minera ls, in an April 9, 1962 order. The executor’s deed transferring the property to Gilbert Rohde without reserving the minerals was recorded on April 16, 1962. Any err ors or irregularities that occurred after the county court obtained jurisdiction over the property, including any alleged failure to strictly comply with statutory procedure s or inconsistencies in the property description, were cured when the court confirmed the sale. See Brand , 65 N.W.2d at 461 (holding administrators’ failure to disclose r eservation of minerals until the report of sale was, at most, an irregularity and did not deprive the court of jurisdiction). [¶27] “Confirmation of an . . . executor’s sale, provided it is not void, renders it an
enforceable contract and divests the title of the heirs.” Brand , 65 N.W.2d at 461. The confirmation order and deed, which described the property witho ut reserving the mineral interests, divested the estate of all title to the prop erty, including the minerals. Once the estate was divested of the title, even if the executor did not intend to convey the minerals, the executor could not make a subsequent conveyan ce to correct the mistake because there was no title remaining to convey. See Johnson v. Hovland , 2011 ND 64, ¶ 17 , 795 N.W.2d 294. The executor could not fix any mistaken conveyance by requesting an amended order confirming the sale and recording an amended deed without notice to Gilbert Rohde and a separate leg al proceeding. See
id. at ¶¶ 17-18 (re-recorded deed restricting conveyance was not a valid correc tion deed and party was required to pursue reformation); Gawryluk v. Poynter , 2002 ND 205, ¶ 17 , 654 N.W.2d 400 (the presumption of delivery and acceptance of a recorded

10correction deed by a grantee does not apply if the deed is a burden on the grantee).
The amended confirmation order and amended deed are void becaus e the estate had already been divested of title to the property, including the m inerals. [¶28] The Nasset heirs and intervener plaintiffs argue this case is controlled by this
Court’s decision in Gruebele v. Gruebele , 338 N.W.2d 805 (N.D. 1983). In Gruebele , a husband and wife divorced, and the district court ordered the parties’ real property be sold at public auction and the proceeds be equally divided b etween the parties. Id

. at 808 . Advertisement for the sale stated the parties would retain t he mineral rights, the husband purchased the property through the auction, the court confirmed the sale, and a deed was executed conveying the property to the husband w ithout reserving the
minerals. Id. The district court later entered an ex parte order stating th e wife’s attorney notified the court that she was entitled to half of th e mineral interests, the husband refused to execute a mineral deed in favor of the wife, a hearing was unnecessary, and the wife was entitled to half of the mineral i nterest. The order purported to convey to the wife a mineral interest in the prope rty previously conveyed
to the husband and the order was recorded in the office of the register of deeds. Id

. at 809 . The husband brought a quiet title action in a district court in another county, and that court quieted title in his favor finding the divorce c ourt lacked jurisdiction to enter its ex parte order purporting to affect the minerals. Id. [¶29] The wife appealed, arguing the ex parte order could not be collaterally attacked in the quiet title action, the ex parte order was entered to ef fectuate the court’s original intent to equally divide the real property, and it was issued under N.D.R.Civ.P. 60(a) to correct an oversight. Gruebele , 338 N.W.2d at 811. This Court said the ex parte order could not be collaterally attacked in the quiet title act ion unless the divorce court lacked jurisdiction to enter the order and the lack of jurisdiction was obvious
from the record. Id. at 810. The Court said an order modifying a judgment is void unless it is made on grounds provided for in the North Dakota R ules of Civil procedure for amending or correcting a judgment. Id. at 811. The Court held the ex parte order was not void and was properly entered pursuant to N .D.R.Civ.P. 60(a) to

11correct a mistake resulting from the failure to incorporate the mineral reservation language contained in the advertisement in the order confirming the sale and
receiver’s deed. Id. at 812. The Court said the ex parte order was appropriate because the court intended the property would be divided equall y between the parties, the intent was not properly carried out, and it was clear a mis take occurred in carrying out the court’s intent because the husband purchased the surfac e and minerals for the price of the surface. Id. Because the district court had jurisdiction to enter the ex parte order correcting the mistake, the other district court di d not have jurisdiction to review the matter in the quiet title action. Id. at 813. [¶30] Here there is no evidence in the record of any motion or p roceeding prior to the county court entering its amended order confirming the sale and there is no explanation about why the amendment was ordered. There is no e vidence the attempt to modify the original order confirming the sale and the execut or’s deed was properly made according to rules for amending or correcting a judgment that applied at that time. Here we are left to speculate why the amendment was made . Also, in Gruebele
, 338 N.W.2d at 813 (VandeWalle, J., concurring), the husband, who was a party to the divorce proceeding, purchased the p roperty and evidence establi shed “he knew he was
not to receive the minerals.” There is no evidence that Gilbert Rohde had actual
notice that he was not to receive the minerals. The advertisem ent for the sale included a description of the property reserving the minerals. Gilbert Rohde’s bid for the property included a description of the property; however, the d escription did not
include the mineral reservation. The executor’s deed did not i nclude the mineral reservation. Gilbert Rohde was not a party to the probate proc eeding. There is no
evidence in this record that Gilbert Rohde had notice he was no t to receive the
minerals. [¶31] The county court had jurisdiction over the property, the e xecutor’s deed transferred the entire property including the minerals to Gilbe rt Rohde, and the
amended executor’s deed was void. We conclude the Rohde heirs own the mineral

12interests and the district court did not err in granting summary judgment in favor of
the Rohde heirs.

IV [¶32] The Nasset heirs argue the di strict court erred in grantin g Lakeside’s motion for summary judgment and dismissing their breach of fiduciary duty claim against Lakeside. They contend their claim was not barred by the statu te of limitations. [¶33] The district court granted summary judgment, concluding th e breach of fiduciary duty claim was barred by the statute of limitations under either N.D.C.C. § 30-24-13 (1960) or N.D.C.C. § 30.1-21-05. The court said it wa s not clear that the six-month statute of limitations in N.D.C.C. § 30.1-21-05 appli es because it was enacted in 1973, but if it does apply there must be some form o f misrepresentation or inadequate disclosure to toll the statute of limitations, none of the evidence submitted showed Lakeside made a misrepresentation or inadequate disclosu re, and the evidence showed Lakeside made a good faith effort to correct mistakes. T he court said the claim was also barred by the three-year statute of limitations under N.D.C.C. § 30-24- 13 (1960) because Lakeside and the county court’s actions put the heirs on notice as to the reservation of the mineral interests and triggered the s tatute of limitations. [¶34] Section 30.1-21-05, N.D.C.C., enacted in 1973, provides li mitations on proceedings against personal representatives, and states: Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors wh ose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six months af ter the filing of the closing statement. The rights thus barred do notinclude rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the sett lement of the decedent’s estate. [¶35] In 2012, the Nasset heirs sued Lakeside, the executor of O laf Nasset’s estate, for breach of fiduciary duty seeking damages. They alleged Lak eside failed to act reasonably for the benefit of the heirs and it breached its fid uciary duty by executing

13the executor’s deed to Gilbert Rohde that failed to properly re serve one-half of the mineral interests of the property. A final decree of distribut ion for the Olaf Nasset estate was filed in August 1962. The Nasset heirs did not comme nce their action claiming Lakeside breached its fiduciary duty within six months after the filing of the closing statement. [¶36] Although the district court questioned whether N.D.C.C. § 30.1-21-05 applies because the statute was enacted in 1973 after the alleged wrong ful acts occurred in this case, the Nasset heirs do not raise that issue on appeal. Rather, they argue the limitations period did not start to run until they learned Lake side misrepresented or failed to adequately disclose information relating to reservati on of the mineral interests. The Nasset heirs argue N.D.C.C. § 30.1-21-05 does no t preclude their action because there are no limitations on claims of fraud, misreprese ntation, or inadequate disclosure and Lakeside misrepresented or failed to adequately disclose information related to reserving the minerals. They contend Lakeside was aware or should have
been aware the heirs intended to retain the interest in the min erals, the heirs were led to believe Lakeside correctly retained the interest, the heirs relied on that information, and the heirs were unaware that there may be an issue with thei r ownership of the minerals until just prior to bringing the action as a result of Lakeside’s misrepresentation or inadequate disclosure. They contend Lakesi de’s misrepresentations or inadequate disclosures prevented the orig inal heirs from bringing a claim years ago when they were still alive. [¶37] The original heirs were parties to the probate proceeding, and the Nasset heirs bringing this action claim their interests in the property thro ugh these original heirs. The petition to sell the property listed the names of the origi nal heirs and the order authorizing the sale stated there was satisfactory proof of ser vice as required by law and no person interested in the estate objected to the sale. AJuly 13, 1962 final decree of distribution stated notice of the application of the final decree was given or waived pursuant to law. The final decree stated each of the fi ve named heirs received one-fifth of the personal property, which included $20,814.37. The decree did not list

14any other property. An amended final decree of distribution dated August 10, 1962, states due notice of the application for the decree was given o r waived. The amended decree included the same property as the final decree but also included the distribution of the mineral interests. Furthermore, even if the original he irs did not have actual notice of the proceedings related to the sale of the property, the executor’s deed and amended executor’s deed were both recorded and the probate documents were filed in the county court and in the office of the register of deeds. Recording the deeds gave the heirs constructive notice of potential problems. See Brand , 65 N.W.2d at
461. The Nasset heirs’ claims are based on these documents. [¶38] Viewing the evidence in the light most favorable to the Na sset heirs, the court correctly determined that there was no evidence of misrepresent ation or inadequate disclosure and that Lakeside and the county court’s actions put the heirs on notice about potential issues with the reservation and triggered the s tatute of limitations. The statute of limitations under N.D.C.C. § 30.1-21-05 expired and precluded the Nasset heirs’ claim against Lakeside. The court properly granted summ ary judgment on the breach of fiduciary duty claim.

V [¶39] We have consider the parties’ remaining issues and argumen ts and conclude they are either without merit or unnecessary to our decision. We affirm the judgment. [¶40] Gerald W. VandeWalle, C.J. Jon J. Jensen Dale V. Sandstrom, S.J. Daniel J. Crothers Jerod E. Tufte
15[¶41] The Honorable Dale V. Sandstrom , S.J., sitting in place of McEvers , J., disqualified.

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