87 N.W. 8 | N.D. | 1901
This is an action to quiet title to certain real property described in the complaint. The plaintiff alleges, in substance, that he is the owner in fee and in possession of the real property in question; that in December, 1892, John Commow sold and conveyed, by deed, said land to one W. W. Allen, and subsequently informed plaintiff of such sale, and that thereafter the plaintiff, relying on the representations so made by Commow, purchased the land from Allen, receiving from him a warranty deed, together with the possession of said land, which possession he has ever since held; that in August, 1899, said Commow filed for record in the office of the register of deeds of said county a deed to said land, which he executed to his daughter, Suzanne, on May 4, 1892, said daughter at that time being but 4 years of age; that said deed was without consideration, was never delivered, and that plaintiff never had any knowledge of the execution thereof until the same was filed in August, 1899; that plaintiff purchased said land from Allen in good faith, and for a valuable consideration. Defendant Suzanne Commow, by her guardian ad litem, answered, admitting that in May, 1892, John Commow executed to her a deed of said real estate, and that such deed was, in 1899, filed for record. There is a denial of the other allegations of the complaint. Upon these issues the action was tried in the lower court, and judgment was rendered for plaintiff. The trial court made certain findings of fact, the material portions of which are substantially as follows: (1) That on May 5, 1892, John Commow was the owner in fee of the real property in question. (2) Suzanne is a minor of the age of 12 years, and John Commow is her guardian ad litem for the purpose of this action. (3) That Suzanne Commow is the daughter of John Commow, and has lived with and been supported and educated since the age of 2 years by one Bruno Charboneau. (4) That on May 5, 1892, John Com-mow signed an instrument purporting to convey to Suzanne, then 4 years old, by warranty deed, the said lands. That Suzanne had no knowledge of such conveyance, and the same was without money consideration, and was never delivered, and that there was no agreement between the said grantor and grantee that the same was considered and understood to be delivered, and no agreement between the said parties that the same should be delivered to a third party or stranger for the benefit of the grantee. (5) That in December, 1892, the said John Commow executed and delivered to one W. W.
By this appeal we are required to review the entire caáe. There are but few material facts in dispute. As to the findings of the trial court numbered 1 to 4, inclusive (with the exception of the statement in finding No. 4 that the deed from John to Suzanne was never delivered), there can be no dispute. Finding No. 5, as to the conveyance from Commow to Allen, is challenged; also finding No. 7, as to statements made by Commow to plaintiff relative to the Allen deed; likewise finding No. 8, as to the loss of such deed. Findings 9 and 10, as to plaintiff’s possession, etc., of said land, and the payment by him of the incumbrances thereon with Commow’s knowledge, must, from the evidence, be accepted as true. It is, therefore, apparent that the principal question of fact in dispute is as to whether or not John Commow ever executed and delivered to W. W. Allen a deed to this land, as claimed by plaintiff. If he did not. then plaintiff acquired no title by his deed from Allen, and hence he could not recover in this action. The burden is upon the plaintiff to establish the fact of the execution and delivery of such deed, and this he should do by clear and satisfactory proof. Fias he done so ? The trial court found that he has, and this finding, as all findings of the court below, is entitled to much weight. That court had an opportunity to see the witnesses, and hence is better enabled to judge of the weight of the evidence than we are from the printed abstract. What is the testimony? James McManus, the plaintiff, testified: “Commow and I had always been neighbors and friends. He had confided in me, some time in December, that he was going to lose his pre-emption [the land in dispute] if he could not make some arrangement to meet the debt that had been due since 1890. I met him in St. John a few days either before or after Christmas, and asked him if I could make a deal with him for this land, — buy the title to it. I would try to rédeem it. And he answered me that he
Appellant’s counsel make the point that there was no proof that there were not subscribing witnesses, or that the subscribing witnesses, if any, are dead, and hence that the doctrine established in Brynjolfson v. Elevator Co., 6 N. D. 452, 77 N. W. Rep. 555, applies. This point is not sound, for the reason that since said case was decided the rale has been changed by statute. Chap. 59, Laws 1897, being § 3888a, Rev. Codes 1899. In the- case cited and relied upon by counsel this court said: “With respect to future trials, this decision will not long be important, for the legislature has, at the suggestion of this court, entirely swept away the common-law rule, which for many years had been an anomaly in the law of evidence.”
Counsel for appellant urge that there was no foundation laid for the proof of the contents of the lost deed by secondary evidence. They contend that the plaintiff should have been examined, as well as Mrs. Allen, the wife of W. W. Allen, concerning the lost deed. They apparently overlook the fact, which is shown by the record, that this deed never came into possession of the plaintiff. The plaintiff and W. W. Allen both testified that at the time Allen conveyed this land to the plaintiff it was agreed that Allen should retain the custody of the deed from Commow to him until such time as the taxes were paid by Allen, and then the same was to be recorded by him. Hence, it would have been useless to have called the plaintiff as a witness concerning the loss of this deed, and, as to the wife of Mr. Allen, there is nothing showing that she had any knowledge concerning the deed. We deem this point untenable. The rule of evidence contended for by appellant’s counsel that no evidence shall be given which, from the nature of the transaction, supposes there is better evidence of the fact obtainable by the parties, is elementar)^, and the foundation of the rule is a supposition of fraud, and, if there is better evidence of the fact, which is withheld, a presumption arises that the party had some secret motive in. not producing it. Before