98 N.W. 77 | N.D. | 1904
The plaintiff instituted this action to determine adverse claims to eighty acres of agricultural land situated in Rich-land county. The complaint, which is substantially in the form prescribed by chapter 5, p. 9, of the Laws of 1901, alleges that the plaintiff is the owner in fee simple of the land, and that the defendants claim interests therein adverse to the plaintiff, and prays that said claims be adjudged null and void, and the title to said premises be quieted in the plaintiff as to all of said defendants, and for costs and disbursements. The defendant Plankinton alone answered. His answer alleges title in himself, under section 3491a, Rev. Codes 1899, and sets forth adverse occupancy and payment of taxes for ten years under color of title. He also alleges that he has an unpaid mortgage on the premises for $450 and interest. The casi was tried to the court without a jury, and resulted in a judgment for plaintiff, quieting title in him "as against all liens, claims and demands of the defendants. The defendant appeals from the judgment. Appellant caused a statement of case to be settled, in which he demands a review of the entire casé in this court. He also assigns error on the statutory judgment roll.
Counsel for respondent contends that the evidence cannot be reviewed in this court because of the alleged absence from the statement of case of certain papers which he claims constitute a part of the proceedings had at the trial, and that in the absence of such papers the court is without authority to try the case de novo under section 5630, Rev. Codes. 1899, and upon this theory made a motion at the hearing to strike out the statement of case and to affirm the judgment. Counsel did not agree at the hearing as to what papers were in the statement, or as to whether the papers alleged to be missing in fact constituted a part of the proceedings held at the trial. The motion was denied without an examination of the record,
From these facts it appears that' the deed of conveyance from Davis to the plaintiff, and upon which the plaintiff’s claim of title and his rights in this action are based, was executed and delivered while the land was adversely held by the defendant under claim of title, and that the plaintiff’s grantor, Davis, had not been in, possession of the land, or taken the rents or profits thereof, for the space of one year prior thereto. As to the defendant, who was in adverse possession under color of title, the deed was void. This case is ruled by the conclusions announced in Galbraith v. Paine, 12 N. D. 164, 96 N. W. 258, in which we held that in this state “the common law doctrine which condemns as void a grant of land which is adversely held under claim of title by a grantor who has not been in possession op taken rent for the space of a year prior thereto, as an act of maintenance, was not abolished by the Revised Codes of 1895, but was perpetuated and remains in force in this state,” and that a deed executed in violation thereof is void as to persons in adverse possession, claiming title, although valid between the grantor and grantee and third persons. Counsel for respondent seek to sustain the validity of the deed by contending “that the prohibition of sections 7001, 7002, Rev. Codes 1899, which perpetuate the common law doctrine, cannot be invoked against plaintiff’s deed, because (a) the defendant Plankinton is not an adverse possessor; and (b) that, even though he were such, he cannot raise this question for the first time in the Supreme Court.” Neither of these contentions can be sustained. It is true, Plankinton was not personally in possession; but he had color of title, and the possession of Holmstrom and Peterson under their contracts, in law, was his possession. Whitney v. Wright, 15 Wend. 171; Jackson v. Johnson, 5 Cow. 74, 15 Am. Dec. 433. The purchaser of real estate, entering into possession under an executory contract, holds under his vendor; and, under statutes relating to adverse possession, it is universally held that the possession of the purchaser is, in legal effect, the possession of his vendor. In Hale v. Gladfelder, 52 Ill. 91, it was said that “the relation of vendor and purchaser is such that, when the latter enters into possession under
Neither do we agree with counsel’s contention that the legal effect of the deed cannot be inqtfired into under the assignment. It is said that the deed was admitted in evidence without objection, and counsel relies upon section -5630, Rev. Codes 1899, which provides that “no obj ection 'to evidence can be made for the first time in the Supreme Court.” The assignment under consideration is not directed to the admission of the deed in evidence. It is directed solely to the conclusion of law made and filed by the trial court after the trial proper had been concluded, and merely challenges the correctness of the legal conclusion upon the facts found. The question as to the legal effect of a deed executed and delivered under the facts narrated in the findings is not a question of evidence, but a legal conclusion, and, as we have seen, it follows from the facts found in this case that the deed upon which the plaintiff’s right of action and claim of title rest is void as to the
The district court is directed to enter an -order vacating its judgment, and to enter a judgment dismissing the action? Appellant will recover costs of both courts.