149 N.W. 680 | N.D. | 1914
This suit is in equity to determine adverse claims. Preliminary to the merits, determination must be made of a motion by respondent to strike from the appeal record certain proceedings had upon a motion to reopen the case and vacate said judgment, the order of denial of which is not appealed from. The record facts on the motion to strike are that findings of fact, conclusion of law, and order for judgment made after a trial on the merits were filed, and a final decree thereon quieting title was entered December 7, 1911. One day before the entry of judgment, plaintiffs had served notice of a motion to reopen the ease and to vacate any judgment that might be entered pending hearing, and that leave be granted to submit further testimony. This motion was denied Eebruary 5, 1912, to which ruling an exception was allowed, and notice of which ruling that day was served, together with a copy of the findings, order for judgment, and notice of judgment previously given, filed and entered. November 26, 1912, plaintiffs filed an undertaking on appeal, accompanied by a notice of appeal “from the judgment . . . herein entered on the 7th day of December, 1911.” On January 31, 1913, hearing was had upon the settlement of a statement of the case, at which the trial court was asked to include, as a part of said statement, the motion and supporting affidavits, together with the order of denial thereon entered upon the previous application to vacate the judgment and reopen the case. The same were excluded from the statement of the case proper, to which exception was taken. The court, to facilitate a review of that order, made its certificate identifying the files used upon said motion as a part of the record
Such motion must be granted. The appeal is from the judgment only. The appeal taken does not constitute an appeal from the order of denial of a vacation of judgment and reopening of the case. Only those errors reflected in the statement of the case, and those appearing on the judgment roll, could be raised on this appeal. The motion to vacate and reopen for trial was something wholly subsequent to judgment. It was not a part of the trial had, but, instead, constituted a direct attack upon the judgment. Being subsequent to judgment, the order made thereon was an appealable order, and that, too, independent of the appeal taken on the merits from the judgment. Plaintiffs might have appealed from the order denying a vacation and leave to present further testimony, without taking an appeal in the main case. It is appealable as a matter covered by the 2d subdivision of § 7225, Rev. Codes 1905, permitting an appeal from “a final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.” Weber v. Tschetter, 1 S. D. 205, 46 N. W. 201, wherein it is held that this identical statute must be construed as “though its expression were a ‘summary application in an action after judgment.’ ” Under § 7226, Rev. Codes 1905, “upon an appeal from a judgment the supreme court may review any intermediate order or determination of the court below, which involves the merits and necessarily affects the judgment appearing upon the record transmitted or returned from the district court; ” but this statute does not authorize this court to review on an appeal from the judgment only, an appealable order made subsequent to and wholly independent of the
Tbe merits are now reached for a trial de novo upon tbe testimony upon which tbe judgment was entered. Both parties plead title in themselves. Plaintiffs assert that defendant Laura Louise Ruthruff, by mortgage foreclosure sale of a $6 0-mortgage held by her, procured a certificate to be issued to her thereon January 24, 1898, and which was recorded three days later. Plaintiffs assert that such sale was completed by tbe issuance thereon of a sheriff’s deed June 27, 1899, to said certificate bolder. That she and her husband soon thereafter conveyed said land to Henry Ruthruff by written deed of warranty delivered to him.
The circumstances determinative of the merits occurred from twelve *to fifteen years ago. Time must dim the recollection, a fact important in weighing the testimony. Possession of the premises for ten years before the trial had been in the plaintiffs or their grantors. During such period defendant had never made even a claim of either possession •or of ownership. During those years she has done no act to assert title .and possession. Instead, she suffered what right she had to remain ■dormant while possession was enjoyed and title was claimed by others. The evidence is as convincing as it is overwhelming that she was ignorant of the fact that records of LaMoure county disclosed her to be the record owner of this property until after the plaintiffs themselves had ■discovered the absence of record of deeds in their chain of title, and had not only requested her for a quitclaim deed to bridge such deficiency in record title, but had informed her fully of why her deed was necessary. She had had much experience as a stenographer in law offices, is a woman of mature age, thirty-nine years, and from the record it appears from her own testimony that since she has possessed knowledge •of her possible interest in this land she has ever been alert to safeguard her interests therein. Her recollection, especially of events transpiring •during the year before the trial, as to visits made her to induce her to ■deed the land, ought to be clear, as that of one in the prime of life. But ■she has testified as one fully conversant with the issues in her case. Her father-in-law, Henry Ruthruff, was almost eighty-five years of age at the time of trial, and, needless to say, his testimony should be taken .as more or less unreliable because of his extreme age, aside from his admitted interest in the outcome of his case as a grantor by warranty ■deed. The testimony given by Shockman must also be regarded as that ■of a party in interest. We must look elsewhere for corroborative circumstances in weighing the testimony of these parties and in determining facts.
The next important circumstance supporting the plaintiffs’ conten-. Hons and antagonistic to the whole theory of defendants’ case is that the evidence convincingly and conclusively establishes that on June 27,
- — places the fact of the existence of an outstanding sheriff’s deed on foreclosure to this property beyond all reasonable doubt. In addition to this, Byan, who negotiated the purchase of Henry Buthruff for the land company, and who examined the abstract of title and title papers he says accompanied them, testifies by deposition in advance of trial as follows:
I saw the sheriff’s deed.
Q. What sheriff’s deed?
A. The sheriff’s deed to Laura Louise Buthruff from the sheriff of LaMoure county.
Q. Covering what land ?
A. Covering the southeast quarter of section 6, township 134, range •62.
Q. What other papers, if any, did you see and examine at that time ?
A. A warranty deed from Laura Louise Buthruff to Henry Buthruff.
Q. On the same land ?
A. Same land.
Q. Any other papers in connection with this deal ?
A. It seems to me that there was a release of mortgage, but I am not positive.
*606 Q. Did you examine the sheriff’s deed to Laura Louise Ruthruff,, and warranty deed from her to Henry Ruthruff, so as to know they had been filed for record ?
A. I did.
Q. What is a fact as to them ?
A. They had not been recorded.
Witness then testifies to having directed McMichaels for the land' company to have them recorded, and that “he said he- would have them, recorded; ” and Ryan testifies to circumstances showing the likelihood of the deeds having been burned in a fire in another state, destroying-some of his records.
The fact of the sheriff’s deed outstanding, though unrecorded, is especially important when the haste of the defendant in perfecting record title in herself upon the discovery of her opportunity to lay claim to-this land is considered. Plaintiff August Shockman testifies to discovering the missing links in the record title between the 8th and 15th of April, 1908, resulting from an attempt to obtain a loan on the property, he being then informed that the title was bad, by Attorney Blackwell of LaMoure, since deceased. Sometime thereafter he went to> Pargo, and saw ILenry Ruthruff about it, and found out he did not have title papers in his possession, and was informed by Henry that he-had once possessed a deed from the defendant. Shockman then went to see her about it, informed her of what he supposed to be the facts; “asked her first if she ever owned any land up in LaMoure county, and she said she did one time, and she said this land was sold by her to Henry Ruthruff, and all the papers in connection with this deal" were turned over to him at the time the deal was made in 1899.” “She-was perfectly willing to deed (to give quitclaim deed), as she had no-interest in the land. She said there might be some of the papers at. Tilley’s office, with Malmberg, to go down and see him about it.” Shock-man then testifies to going to Malmberg’s office the following morning, and conversing with him about the matter, and “I did about the same as I had with Mrs. Ruthruff. I told him I was looking for the two deeds to Ruthruff. He made a search in the office for his papers, and could not find them. ... “I told him the condition the title was in as near as I could.” “Q. State what he said % ” A. He said there would
Q. Did he (Shockman) come to see you to ascertain if you had some papers affecting the title to this land ?
A. In fact he got but very little response from me, as I did not know the man.
Q. Did you in response to that question tell him you had no such papers ?
A. I told him I knew nothing about it. I did not think it was necessary to talk my business over with him.
Q. Did you tell him in substance or in words to the effect that all the papers affecting the title to the land described, being the land involved in this suit, had been turned over to your father-in-law, Henry Ruthruff ?
A. No sir.
Q. Did you not talk freely, and tell him all the papers were turned over to your father-in-law, Henry Ruthruff ?
A. I don’t think so.
<3- Will you swear that you did not?
A. No, sir.
And later in the same examination the following appears:
You recollect the visit of Shockman you were talking about?
A. Yes, sir.
Q. After that Henry Ruthruff requested you to make a quitclaim deed, and did not you say, I haven’t any of the papers, and for him to .ask Malmberg ?
A. I cant’ swear to that.
Q. Isn’t it a fact that Malmberg advised or suggested to you to tell Ruthruff that you did not wish to sign the affidavit and quitclaim deed ?
A. I certainly did not have anything to do with this Mr. Malmberg.
Q. Did you not instruct him to tell Ruthruff that you would not sign the papers ?
A. I couldn’t swear to that.
*610 Q. Did not you say to Henry Ruthruff that you would look into the matter, and that he (Malmberg) was looking after this matter ?
A. Not that I recall, Dickinson was looking after my business.
Q. Did not you send Henry Ruthruff, after leaving the papers with you, to see Malmberg as to whether or not you would sign those papers, namely the affidavit and quitclaim deed ?
A. I don't thinlc so.
Q. Did not you keep that paper (the affidavit blank) after Ruthruff brought it to you, and give it to Malmberg ?
A. I don't remember.
Q. Did you tell Malmberg to tell Ruthruff that you would not sign it ?
A. I have no recollection of it.
Q. Will you say that Henry Ruthruff did not bring that paper and affidavit “exhibit A” to you ?
A. I have no recollection of it.
This well illustrates the character of her testimony on her first examination. Contrasted therewith is the following toward the close of the case, given with the understanding of the issues and after hearing the testimony of her father-in-law, Shoekman, and others:
Tell the court what was said and what you said to him (Shoekman).
A. He came to my house, and introduced himself, and told me his name was Shoekman. He said he was trying to clear up the title to some land he was going to sell. ■ I understood he was going to sell it. Something was wrong with the title. I told him it was not my land and I never sold it. I did not know what he was talking about. He said Henry Ruthruff had done the business and had handled it. I gave him the old gentleman’s address, and gave him Malmberg’s address. I told him my papers were in Tilley’s office, and that he could go there and find some information, and I did not know anything of it.
Q. Did you at any time in that conversation say in effect that you did not own that land in LaMoure county, and did not claim to own any land there ?
A. No sir.
*611 Q. When did you first discover that the sheriff’s certificate was missing or taken from the files and papers ?
A. When I got the papers after Tilley’s death, in the fall of 1908.
Q. I will ask you if you are very positive and clear in your mind as to whether or not you have at any time or under any circumstances executed a deed t'o this land to your father-in-law, Henry Ruthruff ?
A. I never did.
Q. Did you, during the conversation with Shockman, state in substance, or anything like it, that you had transferred this land to your father-in-law ?
A. No sir.
Q. Was there any conversation like that?
A. No sir.
Q. Did you ever authorize your husband to make a deed to your father-in-law ?
A. No sir, I told Shoclcnum I did not lenow but the land was sold.
Her testimony is in flat contradiction to that of Shockman and her father-in-law. On the whole, the probabilities under the admitted facts as strongly corroborate the plaintiffs’ theory of the case, as under the circumstances it tends to condemn the defense. Her.case rests solely on her testimony, without a supporting circumstance.
But it is strenuously contended that there is no substantial testimony that defendant ever deeded this property to her father-in-law. The testimony of Henry Ruthruff is naturally more or less indefinite as to time and the occasion and circumstances of such transfer of title, but no more so than would be expected where a man of his age testifies to occurrences a dozen years in the past. Had it been explicit in such particulars, undoubtedly it would have been open to question as being too definite to be credible. But the testimony of the witness Hall impresses with its straightforwardness and apparent truthfulness. Besides, it has a wxdtten-basis in fact in “exhibit C,” heretofore referred to, and which from its importance is fully set forth. It reads:
A memorandum of papers sent to R. A. McMichaels, LaMoure, N. D., April 1, 1902.
1. Warranty deed from Laura Louise Ruthruff to Henry Rxxthruff.
*612 2. Abstract of title to S.E. ¿ of 6-134-62.
3. Sheriff’s deed to same property.
4. Statement of taxes on same property dated 2 — 27—1900, from the treasurer of LaMoure county.
5. Statement of taxes on same property from LaMoure county audit- or, dated 12 — 28—1900.-
6. Treasurer’s redemption receipt, No. 1349, on same property dated 12-28-1900.
7. Letter from C. J. Allister, LaMoure county auditor, to W. E. RuthrufF, dated 12 — 17—1900.
8. Letter from State Bank of Edgely to W. E. RuthrufF, dated 12— 18-190Ó.
9. Mortgage note for $400 from Henry RuthrufF to Eargo Loan Agency to Omar W. Folson, Docket O, page 325.
10. Mortgage deed for $400 from Henry RuthrufF and wife to Fargo Loan Agency, Docket O, page 325.
11. Assignment of mortgage note No. 11,944, from Fargo Loan Agency to Omar W. Folson to Henry RuthrufF.
12. Satisfaction of mortgage from O. W. Folson to Henry RuthrufF.
Attest:
F. D. Hall,
4-1-1902.
Hall testifies to having written this memorandum, in reality and effect an abstract of title of certain very important instruments. He says:
I was requested by either RuthrufF or his wife to mail the number of papers which are listed to R. A. McMichael, of LaMoure. RuthrufF had been quite sick for some time. At that time he was feeling some better, but I talked the matter of the papers over with him, and made this list; as I observed the papers being considerably of value, I made it partially for my own protection, and partly for his so I would know exactly what I had mailed.
Q. State from what you made up the list ?
A. Made it from the papers themselves.
Q. How did you make it from the papers themselves ?
*613 A. I got the title from the papers after examining the papers to see what the title indicated.
Q. I will ask you to what extent you examined the papers ?
A. Merely to see if what was indorsed as a warranty deed was a warranty deed, so with all the other papers, to see if they were what they were purported to be.
Q. State if they were what they purported to be from what examination you made?
A. There was a warranty deed from Laura Louise Buthruff to Henry Buthruff • there was an abstract of title to the land involved in this action; there was a sheriff’s deed to the same property.
Q. State what you did with the list, “Exhibit C” after you made it ?
A. Gave it to Henry Buthruff.
Q. When did you last see it ?
A. I think you showed it to me last August. . . . May have seen it in the hands of Mr. Buthruff once between that time. Don’t remember exactly, rather seems as though I did.
Either this exhibit is fabricated evidence offered on wholly perjured testimony as a basis, or it is exactly what it purports to be, an abstract executed contemporaneously with the first sale after defendant had deeded the land. Our conclusion is that this exhibit is genuine, and, taken with his testimony, carries conviction. It strongly tends to establish as an ultimate fact that an instrument, in form a warranty deed of Laura Louise Buthruff and of this land, was outstanding and in the possession of Henry Buthruff, April 2, 1902, thereby raising the presumption of its having been previously delivered to him. Nothing in the cross-examination of this witness or in the circumstances surrounding the making of this exhibit and the cause for its existence casts any doubt as to its authenticity or his truthfulness. This testimony, with that of the circumstances of -the subsequent transfer for value and use of these title papers by the purchaser in the consummation of the sale then in progress by Henry Buthruff to the land company, makes it a reasonable as well as natural and unavoidable conclusion that the purchasing land company did the usual thing of relying upon an abstract of record title down to the break in the chain of title, showing the fore
McMichael, who assisted in the negotiations and sale of Henry to the land company, has testified, and counsel for the defendant has made much of the fact that he has no positive recollection of the record title or of the exact deal. He recollects that the company had a transaction with reference to this land in the spring of 1902, with Henry Ruthruff, conducted entirely by correspondence. He does not remember whether it was a cash deal, or whether a mortgage was taken back in part payment, nor the amount of the sale, but he does recollect Ryan having made a deposit on the purchase; “Ryan examined the title in closing the deal.” That Ryan was somewhat personally interested in this purchase, and because of that “suggested that he was concerned and that he ought to examine the record. I thought that ended it.” • That he- has made search for files, papers, and correspondence, and has been unable to find any after a thorough search. Witness was sixty-one years old at the time of trial, and testifying to matters occurring approximately ten years previously. His' testimony in some respects is corroborative of the contention of the plaintiffs. That he does not recollect the state of
A careful review of all the evidence convinces that beyond any substantial doubt this defendant, between June 27, 1899, and December 28, 1900, and probably soon after the date of the sheriff’s deed, June 27, 1899, did deliver her warranty deed of this land to Henry Ruthruff. That there were dealings between her husband and his father, Henry, and that an indebtedness existed of over $2,000, of son to the father, is established by the written declaration of trust dated February 19, 1902, in evidence. A consideration easily could have passed, as Henry says it did, for this transfer. The death of W. Edd. Ruthruff, June 28, 1902, in the Jamestown asylum, where he received treatment for six weeks immediately prior to his death, raises no presumption that he was insane on or before December 28, 1900, prior to which date the tax redemption record shows the father had an interest in this land. Besides, defendant must have deeded, and if her husband had been mentally deficient she would in all probability have been more cautious in what she signed at his request. She does not defend on the ground of having been induced to deed by fraud or mistake, but she claims never to have deeded at all. No importance can be placed on the circumstance of her husband’s insanity. It is mentioned, however, that nothing may be taken as overlooked. While she challenges the consideration for her alleged deed, it may be remarked that it is doubtful if any sufficient consideration existed for her own claim of title. True, she testifies to the general statement that her husband gave her this land, but the fact, nevertheless, she was ignorant of her ownership of it for seven years after his death, during which time others had undisputed possession under a belief and claim of title, amply justified under the evidence, does not evince much of a pecuniary investment in fact, or it would have been thought of and looked after, instead of remaining unknown and abandoned. We are constrained to find that she has no title and is defending without merit. This and other courts have held that, before title can be found in this plaintiff, this lost link in the chain “must be established by clear and satisfactory evidence.” McManus v. Commow, 10 N. D. 340, 87 N. W. 8; Garland v. Foster County State Bank, 11 N. D. 374, 92 N. W. 452, and Young v. Engdahl, 18 N. D. 166, 119 N. W. 169. But these holdings are likewise authority to the fact that,
Henry testifies as follows: “Laura Louise Ruthruff, she signed a*618 warranty deed. . . . She signed the papers, everything necessary, the deed.” On cross-examination he states:
Q. The deal was made with your son ?
A. Yes sir, the deal was made with my son.
Q. Will you swear she was present any of the time? ■
A. She was in once. She told me if it was in her name, she was willing to sign the deed.
Q. Did you ever take more than one deed of any kind, leaving out the sheriff’s deed ?
A. But one.
Q. Do you know who took the acknowledgment when you got this deed from Laura ?
A. No, I can’t think.
Q. Do you know who witnessed it ?
A. No.
Q. What did you do with it when you got it ?
A. Kept it in my box with my private papers.
Q. Where was Laura Louise when she signed this deed ?
A. I could not just say if it was at Lawyer Tilley’s office or at the house.
Q. Will you swear you saw her sign the deed ?
A. Her name signed to it, of course.
Q. Will you swear that you saw her sign her name to the deed ?
A. Well I don’t know. I think it was done when I was right present. Q. Will you swear you saw her sign her name to the deed ?
A. I know she signed it, yes.
Q. Will you swear you saw her sign her name to the deed ?
The Court: Can you answer that question ?
A. I will not be positive about that.
Q. And you took it home and put it in the tin box ?
A. Yes sir. I know where I actually took it.
Q. You took the deed home and put it in the tin box?
A. Yes, took it and put it with all the papers.
Q. You can’t tell who drew the deed, can you?
A. I think Tilley did.
Q. You think, that is all, you don’t know so?
A. I think it was in his office.
*619 "Q, Will you swear that he drew that deed ?
A. No.
Q. You can’t tell before whom it was acknowledged?
A. No.
Q. You can’t tell who the witnesses were ?
A. No.
Q. All you know about that deed business is that your son brought you a deed purporting to be signed by Laura ?
A. No, not purporting, signed right in the office.
Q. You say it was signed in an office?
A. No, I can’t say signed, it was handed to me right in the office?
Q. Did she sign it ?
A. Yes, sir.
Q. You did not see her sign it, did you ?
A. No, I would not say.
Much more similar testimony by Euthruff is in the record.
Witness Hall testifies he examined this deed when making “exhibit C; ” that “this document purported to be a warranty deed to the property involved in this action, and it was in the ordinary form and signed by the name Laura Louise Euthruff. I don’t remember if the middle name was in it or not. It was signed by the name of Mrs. Euthruff, I don’t know if it was both names or not.” Cannot now state whether the instrument was acknowledged or not. On cross-examination, he testifies.
Q. You don’t mean to testify there was a warranty signed and acknowledged by Laura Louise Euthruff, signed and acknowledged by her here by your own personal knowledge ?
A. A deed that purported to be signed by her.
Q. And that is as strong as you want to put it ?
A. Yes sir.
Q. How much time did you spend altogether in looking over these papers ?
A. Perhaps an hour or an hour and a half.
Twitchell testified that he, either later in the fall of 1909, or February 1910, had visited defendant with Henry Euthruff, “I told her I came up to see her with reference to the LaMoure county land, and ex
That an instrument bearing the purported signature of this defendant, covering this land and in form a warranty deed, given for a valuable-consideration, and delivered by defendant to her father-in-law, is established beyond substantial doubt. That diligent search has been made for it is shown by the testimony of all in whom possession might be had or imputed. In vieAV of the acts and admissions of the defendant, and of the written memoranda, and those reasonable probabilities and presumptions applying in the business dealings had with reference to this-land, we are inclined to hold the proof sufficient as to the genuineness of the purported signature of the defendant to said deed, and that the-same was acknoAvledged by her. The reason for extreme caution in decreeing the existence of lost deeds and establishing title thereunder is to prevent fraudulent assertion of titles. But here all acts of plaintiffs and their grantors reaching back to Avhen the circumstances of the issuance of the sheriff’s deed and the deed to Ruthruff must have been recent are all consistent with good faith and the actual existence of such
It is therefore ordered that the judgment appealed from be vacated, and that in lieu thereof a decree be entered that a sheriff’s deed on foreclosure was issued and delivered June 27, 1899, as heretofore stated, and that the grantee therein, defendant Laura Louise Buthruff, soon thereafter conveyed said land by her deed of warranty to Henry Buthruff ; that through oversight said deeds were not recorded, and have been lost or destroyed, and cannot be produced to perfect record title, but that both of said deeds are established as having existed, and that the same passed title to said tract to the Iowa Land Company, which in turn Las conveyed to these plaintiffs, in whom title thereto should be and is quieted and confirmed. Judgment for costs will follow in favor of the plaintiffs and against defendant. It is so ordered.