50 Minn. 373 | Minn. | 1892
The controversy between these parties is over the title to a quarter section of land in Kanabec county. This land was entered in 1856, at the United States land office at Stillwater, by one Eugene M. Wilson. The certificate of location was assigned to Benjamin E. Smith, to whom a patent was issued in August, 1858. Neither the patent nor assignment of the certificate of entry was recorded. Srpith was a nonresident. There is evidence, however, sufficient to support the finding of the court that he had an agent in the state, who was authorized to act for him and to sell his lands situated therein. The same party was also agent for one Carr, and on the 23d day of May, 1862, the two executed a joint power of attorney to him, authorizing and empowering him to sell and convey by warranty deed any and all lands held by them in the state of Minnesota, and thereafter, in the year 1867, while he was still the agent of Smith, and assuming to act under the power of attorney referred to, he sold and conveyed the land in question as the property of Smith and in his name to Eugene M. Wilson, under whom the plaintiffs claim through mesne conveyances, which, with the deed to Wilson, were all duly recorded before January 1, 1891. The consideration for this deed paid by Wilson was remitted to Smith by his agent, and received and retained by him with knowledge of the facts concerning the sale and conveyance, which were approved by him and ratified as far as it could be done by parol or writing not under seal. On the 19th day of January, 1891, the defendant procured a quitclaim deed to be executed to him by Smith of the same land for the consideration of $200. The court finds in respect to this purchase that the defendant, at the date thereof, knew that the land was entered by Wilson, and that the plaintiffs claimed to be the owners
The evidence is sufficient to support these findings. The circumstances of the sale, which are more particularly referred to below, together with the state of the record, were sufficient to put the defendant on his guard, and he took the risk of any outstanding title or equities. The court was justified in treating him as a “prowling assignee,” occupying no better position than Smith, his grantor, and subject to the same equities in favor of the plaintiffs. A careful examination of all the testimony will, we think, make this quite plain. It tends to show that Smith well knew of the conveyance to Wilson by-his agent, but the particulars had doubtless escaped his mind at the time he made the deed to defendant. And' for more than twenty years he had made no claim, paid no taxes, and exercised no acts of ownership over the land. On the day he made the deed to defendant-the defendant’s agent applied to him to purchase the land at his place of business in Baltimore. Smith did not make any claim to the land, and told him he did not know that he owned it; but the agent then informed him that the record showed that he did, and that he had not conveyed it. He had no opportunity to refresh his recollection or communicate with his former agent in Minnesota or look up correspondence or ascertain the value of the land, because the defendant’s agent insisted upon closing the deal without delay. Smith was-also informed by him that there were other parties claiming the land,, and there was probability, of a lawsuit, but that defendant was willing to give a small consideration for a quitclaim deed, to which Smith agreed with the understanding that defendant was .to take all the risks, and thereupon Smith executed the deed and received the sum of $200, a very small fraction of the value of the land. Defendant, knew that plaintiffs were claiming the land under Wilson. He understood that the title would have to be contested, and he was willing to take a speculative or fighting title for a comparatively nominal consideration, and take the chances. He therefore took all the risks, whatever they might be. He clearly did not expect to get, and did not get, any better title than Smith had, ánd that was subordinate
The joint power of attorney executed by Smith and Carr did not authorize the conveyance of the land held by Smith in severalty, so that the deed executed by Smith’s agent, as his attorney in fact, to Wilson, was not authorized by the power, and the deed was invalid as an executed conveyance of the land. Gilbert v. How, 45 Minn. 122, (47 N. W. Rep. 643.) The legal title did not pass thereby; but, inasmuch as Smith might then have authorized his agent to make executory contracts for the sale of his land by parol, or ratified such contracts when made, as the evidence tends to show he did do in this instance, equity will not permit the deed to fail altogether, but will treat it as a contract for the sale of the land fully executed on his part by the purchaser. Upon the evidence in this case, these plaintiffs may be deemed the assignees of his equitable title, and the equitable owners thereof. Groff v. Ramsey, 19 Minn. 44, 54, (Gil. 24;) National Bank of Nonvalk v. Lanier, 7 Hun, 627, and cases; Lebanon Sav. Bank v. Hollenbeck, 29 Minn. 325, (13 N. W. Rep. 145.)
Strictly, however, this conclusion is no.t warranted by the pleadings and findings of fact in this case. The plaintiffs allege that they are the owners in fee of the land. They were not, therefore, entitled to prove the parol authority of the agent, and, the facts showing an equitable title in them, and as such evidence was received over the abjections and exceptions of the defendant, there must be a new trial. The answer and reply did not help out the complaint. The case was tried and determined, evidently, upon the theory that Wilson acquired the legal title under Smith’s deed to him. As there was no amendment of the pleadings sought or made, the plaintiffs’ case was not made out, and the decision cannot stand.
Judgment reversed.
