133 Minn. 49 | Minn. | 1916
Action for partition of real estate. Both parties desired a partition, and the court, after determining that defendant W. B. Hobart owned a specified share of the land and that plaintiffs owned the remainder thereof, appointed three referees to make the partition. Two of the referees united in a report assigning a described parcel of the land to W. B. Hobart and the remainder thereof to plaintiffs. The third referee made a minority report similar to the majority report, except that it assigned to Hobart a larger quantity of land than the majority report. The court duly confirmed the majority report and rendered judgment partitioning the land in accordance therewith. Defendant W. B. -Hobart, who will hereinafter be designated as defendant, appealed. Thereafter plaintiffs also appealed.
Defendant advances three propositions on his appeal: (1) That the report of the referees cannot be given effect because not unanimous. (2) that the majority report is defective in failing to specify in detail the manner of executing the trust; (3) that the majority report should have been set aside on the showing made by defendant in support of his claim that the partition made therein was inequitable.
I. Defendant states his first proposition without making any argument in support of it; and we think it is sufficiently answered by section 9411, 6. S. 1913, which authorizes a majority to act where joint authority is conferred upon three or more.
2. The statute provides that the referees “shall make a report of their proceedings, specifying the manner of executing the trust, and destrib
The report in question is quite full and too lengthy to quote. It shows among other things that the referees “carefully examined all of the land * * * and all buildings and improvements thereon and made estimates of its value and the relative values of the different tracts and parcels of which it is made up ;” that they held several hearings in which both parties took part; that they determined that the tract “awarded to defendant W. B. Hobart is, quantity, quality, location and improvements considered, equivalent in value” to that part of the entire property to which he was entitled, as determined by the judgment directing the partition, and that “the property and the share allotted to each party” is described with precision and accuracy. The statute does not require the referees to make findings of evidentiary facts, and we think that the report contains all that the statute requires, in a case in which no claim is made that the character of the property precludes an equitable division.
3. At the hearing upon the motion to confirm the report, defendant presented several affidavits to the effect that in the opinion of the affiants defendant should have been allotted a larger acreage, in order to make the value of the land awarded to him equivalent to the value of his share in the entire property. The report of the third referee was also to the same effect. Defendant insists that the court erred in refusing to set aside the majority report upon the minority report supported by these affidavits.
The majority report was in law the report of the referees. An appli- ' cation to set aside such report is usually considered as analogous to a motion for a new trial, and the report as entitled to the same force and effect as the verdict of a jury or a finding made by the court. Knapp, Partition, 221; Freeman, Cotenancy and Partition, § 525, 30 Cyc. 265, 266. No claim is made that the referees were not fair, impartial and well qualified to perform their duties, nor that they overlooked any facts or followed an erroneous theory. Neither does defendant question that they acted acording to their honest judgment. The showing made to the court disclosed a difference of opinion in respect to the relative value of the two parcels into which the property had been divided. The opinion of the two referees, set forth in their report, ivas formed after a careful
Plaintiffs in their appeal attack the title of defendants. The record states that it was conceded at the trial that in August, 1907, one Ames who was the owner of 35/197 of the land in controversy, “executed and delivered to the defendant M. P. Hobart, as grantee, a warranty deed thereof for the consideration of Thirty-five Hundred (3,500) Dollars;” and that in September, 1907, “the said M. P. Hobart erased his initials *M. P.’ from said last-named deed, and inserted in the place thereof the initiale ‘W. B.,’ so that the grantee therein read W. B. Hobart.” It also appears from the record that M. P. Hobart is the father of W. B. Hobart; that M. P. Hobart, after acquiring the property, wished to convey it to his son, and, in an attempt to accomplish that purpose, erased his own initials in the deed to himself and inserted therein the initials of his son, and that subsequently, on learning that the title could not be transferred to his son in that manner, he executed a formal deed to his son for the property. It also appears that, after the execution and alteration of the deed from Ames to M. P. Hobart and with full knowledge thereof, plaintiffs procured a conveyance to themselves of the interest in the property, if any, still held by Ames.
Plaintiffs’ sole contention is that the alteration made by M. P. Hobart in the deed from Ames to himself precludes defendants from proving title to the interest in property which would otherwise have been conveyed thereby.
We deem no extended discussion necessary. As stated in Clark v. Creswell, 112 Md. 339, 76 Atl. 579, 21 Ann. Cas. 338, “A deed is merely the medium for the transfer of the title from the grantor to the grantee, and when its purpose is once fully accomplished its subsequent disposition cannot affect the title is has conveyed. It may be altered, mutilated, lost or destroyed; its executory provisions may be rendered inoperative by fraudulent changes or otherwise; but the title which has passed by it^ will remain undisturbed.” In 1 Devlin, Deeds, it is said in section 460: “The true rule seems to be that if the deed is altered after execution by a party claiming some benefit under it, or
The several statements of the law which we have quoted are abundantly supported by the authorities.
In the instant case the execution of the deed from Ames to M. P. Hobart and its contents at the time it was executed is admitted. This deed vested the title in M. P. Hobart. Such title remained unaffected by the subsequent alteration of the deed, and passed to W. B. Hobart by the deed executed by M. P. Hobart. The judgment appealed from is affirmed as to both appeals.