22 S.D. 324 | S.D. | 1908
This is an appeal by the plaintiff from a judgment in favor of defendant and Order denying a new trial. The action was instituted by the'plaintiff to recover from the defendant the possession of a mining claim, known as the “M. C. Lot No. 403,” situated in Greenwood Mining district, Lawrence county, embracing 84.22 acres, and also to cancel a tax deed issued by the county treasurer of Lawrence county to the defendant Frederica Flormann.
It is alleged in the complaint that the plaintiff is the owner and entitled to the possession of the said mining property, and that the defendant unlawfully and wrongfully entered upon and detains possession of the same, and that the tax deed is void and is a cloud upon plaintiff’s title. The defendants denied the plaintiff’s title and right of possession and set up a number of other defenses, among which was: That the premises described in the complaint were and are one of two 80-acre placer claims, which were, during the years 1884, 1885, and part of 1886, claimed and occupied by the Greenwood Gold Mining & Milling Company, as and in connection with its mill and mill site, and in connection with a large number of unpatented lode mining claims then being worked and operated 'by it; that early in 1885 said company becáme heavily involved financially, and . its properties were sold under . execution,
The case was tried to the court without a jury, and the court in its findings found: “ (1) That plaintiff was not- at the time of the commencement of this action, nor at any time since, the owner nor entitled to the possession of the property described in paragraph 1 of the complaint, nor any part thereof. * * * The said plaintiff and his grantors and predecessors in interest have never been in the possession of said premises. (2) That the tax deeds described in paragraph 2 of plaintiffs complaint does not cast a cloud upon any title of plaintiff. The said tax, deed is void upon its face for the reason that it is not in the form provided by law.” That the defendant Frederica Flormann h,as been in the actual, adverse, open, continuous, peaceable, and exclusive possession of the lands and tenements described since the year 1887. And that the said defendant has placed upon said premises, buildings and other improvements of the value of $2,000 and paid the taxes thereon. The court made other findings not material to the decision of this case. From its findings so. made, the court concludes as matter Of law that the plaintiff is entitled to no relief whatever in this action, and that judgment should be entered in favor of the defendants, dismissing plaintiff’s complaint and cause of action upon the merits and for costs. Judgment was thereupon entered dismissing the action. A motion for a new trial' was made and denied.
It is disclosed by the plaintiff’s evidence that a United States patent was issued to Robert Flormann for the said premises and filed for record on the 14th day of February, 1888, that subsequently the said Robert Flormann conveyed the said premises to Joseph O. Rutter, that thereafter the title of Joseph O. Rutter Was Com
Before proceeding to discuss the merits of the case, a preliminary question is presented for our decision by the counsel for respondent, and that will be first disposed of. It appears from respondent’s additional abstract that, about eight months after the bill of exceptions was settled, the learned circuit court permitted the bill of exceptions to be amended, over the objection and exception of counsel for respondent, and without good cause or any cause therefor being shown, by inserting therein Specifications of the particulars in which the evidence is insufficient to support the findings of the court. The respondents move that the specifications of errors so 'allowed by the said amendments to the bill of exceptions be stricken from the record, and that the same be, by the court, disregarded so far as .the same are not properly set forth in the original bill of exceptions, and that such specifications in the original bill be disregarded, for. the reason that they do. not specify the particulars wherein the evidence is alleged to be insufficient to support the courts decision. 'The statement made in the respondent’s additional abstract is not controverted by the appellants, and
The specifications of the particulars in which the evidence was insufficient contained in the original bill of exceptions must be allowed to stand and cannot be 'disregarded. Bowdle v. Jencks, 18 S. D. 80, 99 N. W. 98. Numerous errors are assigned by the appellant and discussed by the counsel in their briefs; but, in the view we take of the case, it will only be necessary to consider and discuss three questions arising upon these assignments of error, viz.: (1) Did the court err in overruling appellant’s objection to the admission of the evidence of -the defendant in regard Lo- the circumstances connected with the location and transfer of the 80-acre tract in controversy in this action to Taylor and Baffin by said Flor-mann? (2) Is the evidence sufficient tp justify the findings of the court? (3). Did the title apparently conveyed to- Robert Flormann by the patent issued to him by the United States pass by operation of law to Taylor and Baffin and their grantees?
On the trial, the defendant Charles Flormann, being called as a witness, testified -that he knew the location of the placer claim lot No. 403, and had been acquainted with it ever since it was located, that it .was located in May, 1884, and, being shown -a copy of the record of location, said that was a copy, and'that all the co-locators of Robert Flormann conveyed their interest to: him. The witness was then asked the following questions: “Do you know, Mr. Flor ■
It is contended by appellant in this court: That the deed from Flormann to Tajdor and Laflin and by Taylor and Uaflin to the Greenwood Gold Mining & .Milling Company was void for the want of sufficient description of the premises, and insufficient to give either actual or constructive notice to subsequent purchasers; that parol evidence is incompetent as against a bona fide purchaser for value and without notice, .to show that the patent and deed described the same premises; that the patent was conclusive as to all things necessary to be performed to entitle Robert Flormann to a patent; and'that they had been performed and the proceeding was not open to inquiry or subject to collateral attack. It will be observed that, in the original objection made in the court below by the counsel for plaintiff to the admission of evidence on the part of the defendant, there is no objection that the description of the property in the deed from Flormann to- Taylor and Laflin was not a sufficient' description, or that the deed was void for want of a good description, and it is contended in this court, by counsel for the respondents, that, the plaintiff having made specific objection in the court below to the introduction of defendant’s evidence, he must now be confined in this court ■to the ground of the objection as stated in the court below. We are of the opinion that counsel for respondents are right in their contention. If the objection had been general, that the evidence was incompetent under the rules laid down?.by the late territorial Supreme Court in the case of Caledonia Gold M. Co. v. Noonan, 3 Dak. 189, 14 N. W. 426, and by this court in Pitts’ Agricultural Works v. Young, 6 S. D. 557, 62 N. W. 432, the objection would have been sufficient; but assuming that the objection was properly taken, we are of the opinion that the -court was right in overruling plaintiff’s objection. The evidence did no-t in any manner tend to impeach, contradict,
The learned author of the subject of Deeds, in 13 Cyc. 607, 608, in discussing what extrinsic evidence may be shown for the purpose of enabling the court to construe a deed, says: “For the purpose of enabling it to ascertain the intention of the parties and to construe the deed, but not in a manner inconsistent with the words used so as to add to or detract from or alter the intent, the court will place itself as nearly as possible in the position of the parties when the instrument was executed, and will consider the origin and sources of its derivation, all tbe attendant surrounding circumstances or the existing state of facts, the situation of the parties and of the property, or the condition or state of things granted .at the time, the state of the country, and generally, all sources of inquiry naturally suggested by the description, or which may have acted upon the minds of the parties, are open to inquiry within the limits of the rules relating to parol evidence in such cases. Where a deed is of doubtful meaning, or the language used is ambiguous, the construction given by the parties themselves, as elucidated by their conduct or admissions, will be deemed the true ones, unless the contrary be shown. So where all the parties have acted upon a particular construction, such construction should be followed unless it is forbidden by some positive rule of law.” Mr. Jones, in his work on Evidence, sec. 496, in discussing the question as to what evidence may be admitted in such cases, says: “But if the lands .are vaguely described, such evidence may be received, not to contradict the deed, but to identify the land, for example, to show that certain lands are well known in the community by the description given in the deed; and to identify land thu§ indefinitely described, evidence has in some cases been received of the acts of the parties as tending to show their understanding and construction of the deed.” Lick v. O’Donnell, 3 Cal, 59; Pettigrew v. Dobbelaar, 63 Cal. 396; Dunn v. English, 83 N. J. Law, 126; Lego v. Medley, 79 Wis. 211, 48
The acts of Taylor and Laflin and their grantee, the Gold Mining & Milling Company, in placing the improvements upon the. two-. 80-acre tracts in controversy, shows clearly their construction of the conveyance made to them and by them'conveyed to the1 company. All the facts and circumstances therefore showing 'the re
It is contended by the appellant that the evidence was insuffi cient to justify the findings of the court; but in our opinion this contention is untenable. No evidencé was introduced on the part of the plaintiff, as above stated, proving, or tending to prove, that
It is contended by the appellant that, as Robert Flormann had no title to the two 8o-acre tracts at the time his deed bears date, April 9, 1884, his after-acquired title obtained from the United States by his patent 'did not pass to his grantee, Taylor and Taflin; but this contention is untenable. It will be observed that the deed from Flormann to Taylor and Taflin was a full covenant warranty deed, and the question presented is: Did this deed sufficiently describe the premises in controversy, in connection with the other evidence on the part of the defendants, to pass Flormann’s title by operation of law ? It fis contended by the respondent that the title apparently conveyed to Flormann, by the United States patent passed by operation of law to Taylor and Taflin and to their grantees, the Greenwood Gold Mining & Milling Company, and that consequently the plaintiff in this 'action acquired no title from Robert Flor-mann by reason of his deed made in 1887 to Rutter, the remote grantor of the plaintiff. In our opinion the respondents are clearly right in their contention. In Bernardy v. Mortgage Company, 17 S. D. 645, 98 N. W. 167, this court held that, “where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title or claim of title thereto, the same passes by operation of law to the grantee or his successors,” as provided by subdivision 4 of section 947 of the Civil Code. As stated in that opinion, this 'section of the Code i’s a copy of the corresponding section of the Civil Code of California and modifies the rule of the common law, in that the section omits tire common-law qualification .that the deed purporting to convey the title, which
The rule that one having no' title to property, who. purports to convey the same in fee to a grantee with full covenants of warranty, is estopped from asserting title to the property, which he has subsequently acquired, has long been the settled law of England and thijs country, and not only is the original grantor estopped from asserting any title to the property, but the heirs of the grantor find all grantees claiming by, under, and through him are equally es-topped. In Comstock v. Smith, 13 Pick. 116, the Supreme Court of Massachusetts, in discussing this question, says: “It is a well-settled principle of the common law that if one conveys lands or other -real estate, with a general covenant of warranty against ail lawful claims and demands, he cannot be allowed to set up. against his grantee, or those claiming under him, any title subsequently acquired, either by purchase or otherwise. Such new title will inure, by way of estoppel, to the use and benefit of his grantee, his heirs and assigns.” In the case of Van Rensselaer, 11 How. (U. S.) 297, it was held: “If a deed of conveyance, expressly or by necessary implication, affirms that the grantor has and conveys, a fee-simple title in the land, his heirs a,re estopped from denying that he had that estate and 'passed it by the deed to the grantee; and this may appear, in any part of the deed, or by other writings which are'referred to therein.” And the Supreme Court of the United States, in its opinion, after quite a full review of the authorities, says: “The principle deducible from these authorities seems to be that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he i's seised or
It will thus be seen that 'this court, in Bernardy v. Col. & U. S. Mortgage Company, established no new principle, and that the law as declared by our Code simply embodies the common law with the qualification that covenants of warranty are not necessary in order that the grantor of property shall be concluded by his deed, as to any after-acquired title, and that the after-acquired title passes by operation of law, instead of by way of estoppel, and is practically in accord with the decision of the Supreme Court of the United States in Van Rensselaer v. Kearney, supra, from which we have quoted. It therefore logically follows from these decisions that a party purchasing property has constructive notice of any prior conveyance made by his grantor by which he has purported to convey a fee-simple title, and that by such conveyance, although he may not have any title at the time the conveyance is executed, his after-acquired title will pass to his grantee. In Christy v. Dana, 42 Cal. 174, it appears from the statement of the case that the
Finding no error in the record, the judgment of the circuit court and order denying a new trial are affirmed.