Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1916-05-06
SUPREME COURT
From Dickey County.

spondent, VS.. Ed. A. Smith, Defendant
and Appellant: ..
Sallyabus: Action to quiet title
based on adverse possession against
fee title holder Smith and others.
Held:
Facts are insufficient to establish
a title under adverse possession as
required by Sec. 4571, c. l.. 1913.
GU Proof of occasional or contin-
uous cutting of hay upon wild, uncul.
tivated, unenclosed and unimproved
prairie land is not of itself sufficient
to esta blish that the land is held adj
versely to the fee owner Of record.
go Payment of taxes with such
insufficient occupancy does not oper-
ate to divest title of the record holder
of the fee.
(4 Title is Quilted in the fee hold
er, Smith, upon condition that he pay
the mortgage indebtedness, including
interest, also taxes paid by the orig
inal mortgage and assigns and inter.
est thereon, and provided also that
an accounting thereon NAV be mad
upon the value of the use and occupa-
ton of the premises during Smiths
ownership to date of JUDGMENT as an
offset AGAINST such taxes and mort
gage Indebtedness. Costs to appel
liant. Case remanded for further pro-
ceedings If necessary.
Appeal from District Court Dickey
County, Allen, J.
Reversed and conditional judg-
ment directed for defendant Smith
with accounting permitted.
Opinion of the Court by Goss, J.
Youker & Perry, of Glendale, At
torneys for Defendant and Appellant.
Webb & Brouillard and E. E. Cas-.
sells. all of Glendale, Attorneys for
Plaintiff and Respondent.
From Nelson County.
James Elton, Plaintiff and Appel
liant VS.. J. M. Lamb. as Admnistra-
tor of the Estate of A.. J. Fielder, de.
ceased, Respondent.
Syllabus: An appeal lies by a cred
itor or claimant from an order of the
Probate Court settling an administra-
tors account.
(2) Funeral and burial expenses
Of decedent are a charge against
his estate that must be paid next in
order of preference to administration
expenses and it's payment cannot be
disallowed, neglected or refused by
the administrator because the funds
of the estate have been used in pay
ment of claims subordinate thereto in
order of preference declared by Sec.
S755 C. l.. 1913.
ca Where to enforce payment OF
funeral charges it was necessary to
sue on them and with which another
cause of action upon nOn-preferred
claim was joined and JUDGMENT was
procured and entered for the aggre-
gate amount of both claims, the pref
erence in rank of payment in favor
of the funeral charges is not lost and
preference is to be given to that por-
ton of the judgment based upon the
cause of action for funeral expenses
where the order for judgment sepa-
rately stated the amounts due upon
each cause of action. 1t was the duty
of the administrator to disclose and
the Probate curt to ascertain non
payment of the charge for funeral ex-
penses. ,-..
az Exception taken 10 the pay
ment made of $36. item of indebted
ness owing by decedent and for which
no claim had been filed with the adj
minstrator is also sustained. Excep-
tons to all other items overruled
except that all disbursements other
than for administration expenses are
subordinate in rank as to preference
to said funeral charges and payment
of them without payment of the fun
eral charges renders the administra-
tor liable for the latter if the estate
is wholly disbursed.
(5) District court will direct .iudg-
ment to be entered in Probate Court
accordingly, vacating the order set
Ting the final account of the admin
istrator and ordering payment by the
administrator of the charge for fun
eral expenses and costs of probate,
District Court and appeal costs.
From an order of the District Court,
Cooley, j.. affirming final accounting
in the Probate Court Of Nelson Coun-
ty, Plaintiff, claimant, appeals.
Reversed. Opinion of the Court by
Goss. ].
Theodore B. Elton, Of Grand Forks,
Attorney for Appellant.
Erich & Kelly, of Lakota, Attor-
neys for Respondent.