14 Minn. 345 | Minn. | 1869
By the Ooui't
-This is an action in the nature of ejectment, in which the plaintiff must recover, if at all, upon the strength of her own title. It is proper then to inquire first, whether she has made out title in herself; if she has not, the case is at an end ; if she has, then we have to loot further to see what rights the defendant has established. It appears that Levi Greve became owner in fee of the premises in controversy, on the 7th day of November, 1854, by deed duly recorded on-that day; on the 5 th day of July, 1855, he executed and delivered to the plaintiff, Mary Greve, a'deed purporting to convey certain premises, the description of which agrees in some respects with the description of the land in dispute found in' the complaint, and varies from it in other respects. On the 25th day of March, 1867, Levi Greve executed and delivered to Mary Greve another deed, granting and releasing all his right, title and interest in the premises described in the complaint. The latter deed contains this language: “This deed is made to correct description, and tg confirm in Mary Greve title to land intended to have been described in and deeded by ” the deed of July 5th, 1855. It is claimed by the defendant that the deed of July 5th, 1855, is inoperative and void, because the description is so imperfect that it does not designate any particular tract of land.
The case comes up here as upon a bill of exceptions. It does not appear that all the evidence introduced before the District Court is reported here, nor are we furnished with any map or plat. Under these circumstances we. are not able to say that the learned judge below, in finding that “ Levi Greve conveyed the said premises to the said Mary Greve in fee,” by the deed of July 5th, was not supported
There was no sale in March, 186Y; what was done then was simply to perfect the evidence of the former sale. 3 Pa/rsons on Contracts, 326-8 and notes. In England under a statute similar, it is held that a deed of confirmation of an inoperative deed that was duly stamped, does not require an ad valorem stamp, as for the sale of the property. Doe vs. Weston, 2 Ad. & El., N. S. 250 (42 E. C. L. 660.) But if this was not so, what would be the consideration or value in this case by which the amount of stamp duty-required is . to be determined ? The consideration expressed is $1, and there is no evidence that it was any greater sum. The value of the interest conveyed, what was it ? Apparently nothing. If'Levi Greve was simply reforming the first deed, he was only doing that which he could be compelled to do gratuitously by legal proceedings. ITis interest possessed no value to him. What he held, he held in trust for the benefit of the plaintiff, Mary Greve. We are clear, therefore, for these, as well as for other reasons not necessary to be mentioned, that no ad valorem stamp was required in this case. , The stamp affixed to the deed as a contract or agreement was at any rate sufficient. 3 Pa/rsons Con., 32Y-8.
Snch is the plaintiff’s title, and in our opinion, it isa good title, and sufficient to enable her to sustain this action unless the defendant has made out a better. On the 16th day of February, 1855, Levi Greve, then being the owner of the premises, made and delivered to Moses IT. Schwartz-enbergh a power of attorney, by which he constituted said Schwartzenbergh his lawful attorney, with these powers: “ for me and in my name to purchase all kinds of goods, wares and merchandize, to execute all kinds of notes and obligations therefor; also for me and in rny name to sell
The instrument then proceeds to revoke “ said letter of attorney, and any and all letters of attorney, by me heretofore executed to the said Moses H. Schwartzenbergh, and all power and authority thereby given or intended to be
It appears that on the 8th day of April, 1855, which was prior to the conveyances to Nathan Schwartzenbergh and to the plaintiff, Levi Greve mortgaged the premises in question to John Nininger, to secure the payment of $1090, due
This doctrine was also followed and applied in Johnson v. Lewis, 13 Minn., 364. Now while in the case at bar it is found by the court below, that the defendant, at the com
Finally, and as one other source and evidence of title, the defendant relies upon a tax deed, which is found by the Court below to have been executed, acknowledged and delivered to him by the auditor of Ramsey County, on the 29th day of August, 1867. The tax sale appears to have been made on the 9th day of June, 1865, for taxes of 1861. Sec. 139, p. 186, Gen. Stat., provides that if land sold for taxes has not been redeemed within the time allowed by law, the county auditor shall on the production of the certificate of purchase, &c., execute and deliver to the purchaser, &c., a deed of conveyance for the tract sold. See. 140 enacts that “the deed so made by the auditor, shall vest in the grantee, his heirs and assigns, a good and valid title, both in law and equity, and shall be received in all courts as prima faeie evidence of a good and valid title in such grantee, his heirs and assigns. ”
We agree with the opinion of the learned Judge below, as to the construction of these sections of the statutes. The auditor is authorized to make the deed, only in case the
The deed introduced in evidence here, then, was prima facie evidence of title. (This remark is, of course, subject to what is before said upon the other point.) It was liable to be overcome, however, by proof of such facts as render