24 S.D. 494 | S.D. | 1910
This action was brought by the plaintiff and appellant against the defendant- and respondent for the purpose of quieting title to a quarter section of land in Pennington county, S. D. Plaintiff alleges that he is the owner in fee of said land, and that the defendant wrongfully claims title under and b}^ virture of a pretended warranty deed executed and delivered by Owen Pitts and wife to the defendant in July, 1900, that Pitts and wife never executed or delivered to the defendant the said deed, and that the record thereof is a cloud on plaintiff’s title. Plaintiff seeks to be declared the owner in fee of said land and to have the deed to the defendant delared void, and the record thereof canceled. Defendant, answering, denies the allegations of the complaint, except that he admits claiming- title by virtue of the deed from said Pitts and wife, and alleges that said Pitts and wife on July 3, 1900, were the owners of said land and convejred the same to the defendant by warranty deed, and that the deed received by plaintiff was received after the recording of the defendant’s deed and with full knowledg thereof. Defendant further alleges that the purchase price has been retained by Pitts and wife, and that the defendant, after receiving-such warranty deed, has relinquished the land to the United States government for the purpose of making lieu selection of
The court’s findings were to the effect that Pitts and wife were the owners of the land on July 3, 1900, and on that date signed and acknowledged a warranty deed containing full covenants of warranty and describing the land in question; that the grantee of said deed was left blnak when the deed was signed; that said deed so signed and acknowledged was left with O. D. Cooper to be by him sent to S. A. Kean of Chicago; that said Kean was duly authorized to fill in the name of the grantee in said deed, and, when the said deed should be iso completed, said Kean was duly authorized to deliver it in its completed form for and on behalf of said grantors; that prior to the delivering the deed the name of defendant was inserted by Kean, and the deed was delivered -to defendant upon his payment of $3.90 per acre; that defendant accepted said deed without' knowledge that the same had been executed with grantee’s name therein left blank; that Pitts and wife received and accepted from their agents, Cooper and Kean, $525 in cash, which they have retained and still retain; that such deed was recorded September 13, 1900; that January 9, 1907, Pitts and wife by warranty deed deeded premises to the plaintiff, which deed was recorded, but no consideration was paid by plaintiff to Pitts and wife or either of them until in September, 1907; that this action was commenced in March, 1907, and the defendant served his answer herein on or about April 20, 1907; that plaintiff at the time he received his deed had actual knowledge of the prior conveyance; that the defendant relinquished said lands to the United States for the purpose of selecting in lieu thereof vacant public lands, and his application for such exchange is still pending.
It will thus be seen that the above findings excepted to by appellant might become very essential in determining the rights of the parties herein. If the deed was filled in by a party duly authorized, then certainly the judgment should be affirmed. If such deed was- not filled by a party duly authorized, then it was never the deed of Pitts and wife, and defendant has no rights herein unless defendant acquired some right or title by virtue of being an innocent purchaser without notice, or. unless Pitts and wife, and through them the plaintiff, were estopped owing 'to the fact that Pitts and wife had received and retained the consideration for such blank deed. There can be no contention but that the plaintiff is in no better position than would Pitts and wife be if they were plaintiffs in this action.
After a very careful consideration of 'the evidence, we are unable to find therein sufficient to warrant the court in finding Kean authorized to- ’fill in the blanks in the deed, or that he, in fact, did so fill in the deed. But we are confronted with one of two situations — either Pitts and wife did execute writings authorizing the .filling in of the blanks or else they did not, and they were cognizant of which was the true situation. ■, If such an authority was in fact given, then it must be presumed, with no showing to the contrary, that such authorized agent filled in the .iteed. If Pitts and wife sent forth the deed in blank without authority in any one to fill in blank, they knew of this fact when ihey received the money, and, if they did not desire to recognize such instrument or any equitable rights in the 'party who paid this money or for whom it was paid, they were bound to refuse to receive the money. Upon their receipt of this money an equitable interest in this land vested in the defendant, Pitts and
The judgment of the trial court and order denying a new trial are affirmed. .