102 N.W. 308 | N.D. | 1905
Action to determine adverse claims to 160 acres of land situated in Barnes county. Plaintiff alleges in the complaint that he is the absolute -owner -thereof, and that the defendants claim it adversely to him. The plaintiff and the defendants claim the title from a common source. The plaintiff claims title and the right to possession through a warranty deed from George W. Toms and wife, dated on November 4, 1892, acknowledged on November 8, 1892, and recorded on January 17, 1893. The defendants claim ownership by virtue of a sheriff’s -deed dated August 2, 1894, based upon attachment proceedings in an action commenced against George W. Toms, plaintiff’s grantor, by one Compton, and levied upon the land on December 10, 1892. Plaintiff’s grantor was a
The defendants contend that plaintiff’s deed was not delivered, and, if delivered at all, not until after the attachment was levied, and consequently conveyed no title as against the attachment proceedings under which the land was sold to the defendant Fleming. The deed was produced by plaintiff at the trial, and offered in evidence by him. There is no evidence as to the time of delivery except the recitals of the deed. The fact of the making and delivery of the deed is not made an issue by the pleadings. The answer admits the delivery of the deed in express words, as follows: “Further answering, these defendants allege that said conveyance referred .to was -executed and delivered at a time when said Toms had no interest in or lien upon said property,, and at a time when said Toms was not in possession of said real estate, and when he had not received the rents and profits thereof for more than one year prior to the execution and delivery of said purported conveyance.” Under such an allegation, defendant is concluded from now asserting that there is no proof of the fact of delivery.
The time of the -delivery of the deed is not shown by independent evidence. This fact is not of controlling importance. The statute provides that “a grant duly executed is presumed to be delivered at
Counsel for defendants insists that the law of this state in reference to the presumption of delivery does not apply to this deed, as it was executed in the state of Missouri. The contention is of no force. The presumption is that the law of a foreign state is the same as the common law, in the absence of a showing as to what the foreign law is. Subdivision 41, section 5713c, Rev. Codes 1899.
It is insisted that the presumption that the deed was delivered on the day of its date has been overcome by the plaintiff’s declarations and conduct concerning the land and the title thereto after it was executed and delivered. Such contention is based upon the fact that plaintiff, while acting as one of the three executors of the last will of George W. Toms, signed and verified the inventory of said estate, in which was included the land in question. It is claimed that the listing of this land in the inventory subscribed by the plaintiff, as executor, overcomes the presumption that the deed was delivered on the day of its date. We are agreed that the proof was not admissible under the allegations of the answer. If the inventory or the verification thereof was competent evidence in this case, it tends to show only that there was no delivery during the grantor’s lifetime. The admissions in the answer render the evidence inadmissible. The plaintiff had the right to go into court for trial, relying on the fact that the delivery of the deed was admitted for all purposes. If the inventory, with the attached verification, be given full effect, it does not show a delivery at a time different from its date, but it simply tends to show that it was not delivered at all during the grantor’s life. Under the evidence in this case, a delivery after Toms’ death would hot be effectual for any purpose.
It is also claimed by the defendants that the presumption that the deed was delivered on the day of its date has been rebutted by the statements in a certain letter written by plaintiff to one Wije on April 22, 1902, concerning the land in question. This letter was an answer to one written him by Wije. The contents of the Wije letter are not given in the record. What it contained is therefore not before us; hence, the effect of plaintiff’s answer as admissions is not clear. He stated in his letter: “I have been unable to find any record of the mortgage referred to and do not like to execute deed without some further information as to the facts in the case, although I presume they are as stated by you. If you will forward me the abstract of title of this land showing disposition of the mortgage and clear chain of title to the present owner of same, I will give the matter prompt attention and return all papers with executed deed, if I find no objection to making same.” There is nothing in this letter to show that plaintiff’s deed was never executed or delivered. If it did contain such an admission, it would be inadmissible under the admissions of the answer. What has been said in respect to the contents of the inventory is applicable also to this letter. Neither of them can be given any weight to prove nondelivery of the deed in view of the answer.
It -is claimed that defendants’ title to the land is valid by virtue of the provisions of section 3491a, Rev. Codes 1899, providing that all titles to real property vested in any person who has been in the “actual open, adverse and undisputed' possession” of the land under such title for ten years, and shall pay all taxes legally levied on such land during such time, are declared good and valid in law. Two valid grounds exist to answer this contention: (1) The deed under which the defendants claim was not executed until August 2, 1894, less than ten years before this action was commenced. It is true that the land was sold on April 21, 1893, and a certificate of sale issued to the defendant Fleming. But such certificate vested no title in the purchaser not subject to redemption within a year after sale. The right to the possession of the land did not follow,
Defendants claim that they, having attached the land in the Compton-Toms action before plaintiff’s deed was recorded, and without notice of plaintiff’s claim to the land, ar>e entitled to the land under such sale, as innocent purchasers thereof. The sections of the Compiled Laws then in force, and controlling of this question, are as follows:
“Section 3293. Ever}- conveyance of real property other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or incumbrancer, including an assignee of. a mortgage, lease or. other conditional estate, of the same property, or any .part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded.
“Section 3294. The term 'conveyance,’ as used in the last section, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged or incumbered, or by which the title to any real «property may be affected, except wills, executory contracts for the sale or purchase of real property, and powers of attorney.”
“Section 4897’. In an action affecting the title to property, * * * or whenever a warrant of attachment of property shall be issued * * * the plaintiff * * * may file for record with the register of deeds * * * a notice of the pendency of the action * '* * and every person whose conveyance or incumbrance is subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer and shall be bound by all the proceedings taken after the filing of such notice, to the same extent as if he were a party to the action.”
It is further claimed that the deed was executed with intent to defraud creditors. Conceding that the defendants are entitled to raise this question, we find such claim entirely unfounded, under the evidence. The trial court made no finding on this question, and the defendants did not allege it to be fraudulent in their-answer. This deed is attacked in the answer as void upon other grounds, and its fraudulent character is not there alleged in any way. Under these circumstances, a narration of the evidence relied on would not be useful for any purpose. It'is sufficient to state that we-have carefully considered it, and find that it wholly fails to establish a fraudulent transaction. The presumption that the transfer was made in good faith has not been overcome. To- hold that fraud has been
It is claimed that Toms, the grantor in the deed to the plaintiff, made admissions after the deed was executed and delivered, and after the attachment was levied, to the effect that he was the owner of the land, and that such admission should be considered as overthrowing the presumption that the deed was delivered as of its date. These alleged declarations or admissions are not admissible under the answer, showing a delivery of the deed. Such declarations are not admissible to defeat the grantee’s title when made after the grantor has parted with the title and possession of the property. If such admissions be competent to defeat a deed duly delivered, no security could be given to deeds, as they would overthrow such deeds when offered, as in the case when the person making them had no interest in upholding his former title. Jones on Evidence, section 242, and cases cited. In this case, as we have seen, there was no evidence of fraud in the execution of the deed. Hence such declarations are not admissible under the rule allowing such declarations in evidence to show fraudulent intent in a conveyance, or to show a conspiracy to defraud.
The judgment is reversed, and the district court directed to order judgment in accordance with the prayer of the complaint, except that no damages are allowed.