dissenting.
[¶21] Because the district court did not err in concluding Larry Holbach was entitled to judgment as a matter of law, I respectfully dissent. I would affirm the grant of summary judgment.
I
A
[¶ 22] The district court did not err in deciding there were no disputed relevant facts or inferences to be drawn therefrom. As the majority recognizes, “The legal operation and effect of a judgment must be ascertained by a construction and interpretation of its terms, and this presents a question of law for the court.” Thomas v. Stone, 2006 ND 59, ¶ 11, 711 N.W.2d 199 (quoting Sullivan v. Quist, 506 N.W.2d 394, 401 (N.D.1993) (citation omitted)). “If the language used in a judgment is ambiguous there is room for construction, but if the language employed is plain and unambiguous there is no room for construction or interpretation, and the effect thereof must be declared in the light of the literal meaning of the language used.” Id.
[¶ 23] The divorce judgment here was plain and unambiguous. The judgment states that the parties agreed to retain title to the property as joint tenants and *480that they would “by separate agreement contract to devise” the property to the four children. The divorce judgment further emphasizes the separate agreement by stating, at section VI, paragraph 6, that upon the death of the surviving party, the property would be distributed to the children “in accordance with the separate agreement above mentioned.” While the majority correctly notes a person may enter into an enforceable contract to devise property, and this Court has upheld family agreements as enforceable, see Kuhn v. Kuhn, 281 N.W.2d 230 (N.D.1979), no such contract was formed here. Larry Holbach and Judith Slorby agreed to agree “by separate agreement,” but no such separate agreement was ever attempted or achieved between the parties. Randolph Holbach claims the “separate agreement” reached was Judith Slorby’s will. A will, however, is not an agreement. See, e.g., 79 Am. Jur.2d Wills § 2 (2002) (“A ‘will’ is a unilateral disposition of property binding only from the death of the maker, whereas a ‘contract’ is an agreement drawing its binding force from a meeting of the minds of the parties.”).
[¶ 24] Because no separate agreement was ever attempted or achieved, the majority asserts that Larry Holbach and Judith Slorby entered an enforceable agreement to agree. “Generally, an ‘agreement to agree’ is unenforceable because its terms are so indefinite it fails to show a mutual intent to create an enforceable obligation.” Lire, Inc. v. Bob’s Pizza Inn Rests., 541 N.W.2d 432, 434 (N.D.1995). “To create an enforceable contract, there must be a mutual intent to create a legal obligation.” Id. “However, if the terms of an ‘agreement to agree’ are reasonably certain and definite, it is enforceable.” Id. In cases where agreements to agree have been invalidated, the parties failed to agree in the future. Coldwell Banker-First Realty, Inc. v. Meide & Son, Inc., 422 N.W.2d 375, 381 (N.D.1988).
[¶ 25] Here, Larry Holbach and Judith Slorby failed to agree between the time of the 1983 divorce judgment and the time of Judith Slorby’s death in 2002. Even if Larry Holbach or Judith Slorby could have enforced the agreement to form a contract to devise during their lives, Judith Slorby has died. No contract with specific terms was ever formed, and the terms of the agreement to agree are not reasonably certain and definite such that they can now be enforced. “If any essential term is left open for future consideration, there is no binding contract, and an agreement to agree is not enforceable.” 17A Am.Jur.2d Contracts § 39 (2004). Only if the terms of an agreement to agree are reasonably certain and definite is it enforceable. Lire, Inc. v. Bob’s Pizza Inn Rests., 541 N.W.2d 432, 434 (N.D.1995).
[¶ 26] The uncertainty of the terms of the agreement to agree here is evident. The judgment does not specify how the property would be transferred to the children through the separate agreement, such as through separate wills, mutual wills, a joint will, a deed reserving life estates, a trust with benefit for life, or some other method. While the majority asserts the divorce judgment used the term “devise,” which typically means to give property by will, see Black’s Law Dictionary 484 (8th ed.2004), the judgment also stated the parties agreed they would “by separate agreement contract to” devise the property. There is no dispute between the parties that there were several ways in which this could have occurred.
[¶ 27] Additionally, the divorce judgment reflects the uncertainty of the terms in that the parties agreed, at section VI, paragraph 4, that if they mutually desired to sell all or any portion of the land during their lifetimes, they could do so — making *481the possibility of devising the property to the children impossible. This paragraph clearly reflects that there was no absolute or final agreement to convey to the children. The terms of the “agreement to agree” cannot be reasonably certain and definite if the parties were also able to sell the land rather than distribute it to their children.
[¶ 28] Finally, Randolph Holbach concedes Judith Slorby remained in a joint tenancy with Larry Holbach. When asked at oral argument before this Court what interest then passed from Judith Slorby to her children by her will, his attorney responded, “Whatever interest she has in a joint tenancy when a joint tenant survives the party who dies.” “It is elementary in this state that, upon the death of one joint tenant, the title to the joint tenancy property vests immediately in the surviving joint tenant.” Estate of Powers, 552 N.W.2d 785, 787 (N.D.1996). Therefore, “[pjroperty held in joint tenancy is not devisable by will.” 79 Am.Jur.2d Wills § 165 (2002). Randolph Holbach’s attorney claimed at oral argument that the joint tenancy did not end with Judith Slorby’s death but continues until Larry Holbach’s death, and that Larry Holbach currently holds only a life estate interest in the property. While Larry Holbach and Judith Slorby could have entered an agreement creating life estates for themselves and reserving remainder interests for the children, they failed to do so. In the absence of a separate agreement stating otherwise, Larry Holbach and Judith Slorby remained joint tenants until Judith Slor-by’s death, at which time the title to the property vested immediately in Larry Hol-bach, as the surviving joint tenant.
[¶ 29] “If the language used in a judgment is plain and unambiguous, there is no room for construction or interpretation.” Thomas v. Stone, 2006 ND 59, ¶ 11, 711 N.W.2d 199 (quoting Sullivan v. Quist, 506 N.W.2d 394, 401 (N.D.1993) (citation omitted)). In their divorce judgment, Randolph Holbach and Judith Slorby explicitly agreed to remain joint tenants of the property, an agreement that was again reflected in the 2001 quit claim deed. At no time between the 1983 divorce judgment and Judith Slorby’s death in 2002 did the parties attempt to enter the agreed-upon “separate agreement” to distribute the land to their children. The district court did not err in concluding that at Judith Slorby’s death, title to the property vested immediately in Larry Holbach as the surviving joint tenant. See, e.g., Estate of Powers, 552 N.W.2d 785, 787 (N.D.1996) (upon the death of one joint tenant, title to the property vests immediately in the surviving joint tenant). The majority interprets the divorce judgment beyond its plain and unambiguous language.
B
[¶ 30] Randolph Holbach also argued on appeal that the district court erred in not imposing an implied trust, either constructive or resulting. “[I]mplied trusts are equitable remedies.” 76 Am.Jur.2d Trusts § 128 (2005). “There are two types of implied trusts: resulting trusts and constructive trusts.” McGhee v. Mergenthal, 2007 ND 120, ¶10, 735 N.W.2d 867. A constructive trust has two essential elements, an unjust enrichment and a confidential relationship, while a resulting trust stems from acts or expressions of the parties indicating an intent to form a trust relation. Id. at ¶¶ 12, 16. Both constructive and resulting trusts are remedial in the sense that they are devices to prevent wrongful taking or unlawful holding of property. 76 Am.Jur.2d Trusts § 132 (2005).
[¶ 31] I would not reverse on the basis of the implied trust argument either. Here, there was no wrongful taking or *482unlawful holding of property. The 1976 contract for deed, the 1983 divorce judgment, and the 2001 quit claim deed each stated that Larry Holbach and Judith Slorby held the two quarters of land in joint tenancy. While they agreed to “by separate agreement contract to devise” the property to the children, they failed to agree in the future, and the terms of the agreement to agree are not reasonably certain and definite such that they can now be enforced.
II
[¶ 32] Because the divorce judgment was plain and unambiguous, the district court did not err in concluding Larry Hol-bach was entitled to judgment as a matter of law. I would affirm the summary judgment quieting title in Larry Holbach.
[¶ 33] DANIEL J. CROTHERS, J., concurs.