27 S.D. 618 | S.D. | 1911
The plaintiff brought this action to quiet title in himself to a certain quarter section of land situated in Hughes county. It is undisputed that for some time prior to the 25th day of March, 1892, plaintiff was the owner in fee of said real estate. The defendants claim title to said land by a number of mesne conveyances based on a warranty deed of said land purporting to have been executed by the plaintiff, John B. Vesey, and Margaret A. Vesey, his wife, to one Edward H. Ratekin, dated March 25, 1892, and recorded April 1, 1892. The plaintiff claims that this deed is a forgery and was never executed by himself and wife. On the trial of the case the defendant offered in evidence, under the provisions of section 533, Rev. Code Civ. Proc., the said deed of March 25, 1892, as shown by the records of the register of deeds of Hughes county. The original deed was not produced nor offered in evidence. Defendant offered some testimoney to the effect that search had been made to find the original deed,' but that the same had not been found. Defendant offered no evidence as to the exexution of the deed, other than the record. The plaintiff and his wife both testified that they had never executed the said deed, nor had either at any time known or heard of a person by the name of Edward H. Ratekin, prior to the discovery of the record of the deed in question; that they or either of them had never in their lives had any business transaction of any kind with Edward H. Ratekin, or any person for him. A grown son of the plaintiff also testified that during the year 1892' he was transacting the business of plaintiff and had charge of plaintiff’s business; that at that time plaintiff was incapacitated from transacting business, and the son testified that he never knew or heard of the execution of said deed or of any transaction between plaintiff and the purported grantee named in said deed..
[x] it is contended by appellants that the testimony of plaintiff was not sufficient to overcome the certificate of the notary that the deed was executed and acknowledged by plaintiff and his wife. The defendants contend that the rale of the common law, that the uncorroborated evidence of the husband and wife that the deed purporting to be executed by them is a forgery, is not sufficient to overcome the prima facie evidence of the certificate of the notary that the deed was executed and acknowledged by the husband and wife; that such certificate of acknowledgement can be overcome only by the most clear, satisfactory, and convincing proof, is the rule that should be applied in this case. We are of the opinion that this contention is not well founded, and should not be applicable in view of the provisions of section 533, Rev. Code Civ. Proc. Under the common-law rule of evidence there can be but little question but what the rule contended for by appellants is the correct and proper one. Section 533, Rev. Code Civ. Proc., of this state, is an innovation of the common-law rule of evidence relating to the kind and sufficiency of proof required
[2] In the case at bar the defendant offered in evidence a recorded copy of a deed of title purporting to have been executed by plaintiff and wife at the city of Chicago, on the 25th day of March, 1892, and acknowledged before Moses H. Neighbor, a notary public, conveying to' Edward H. Ratekin, grantee, the real estate in question. On the trial the plaintiff, his wife and grown son, who had charge of plaintiff’s business during the year 1892,
[3] Appellants also contend that under the circumstances of this case plaintiff ought now to be estopped from claiming title to said land, from the fact that plaintiff had some knowledge that others than himself were paying taxes on said land during a portion of the time, since the recording of said deed purporting to convey title to Ratekin. But plaintiff claims that he knew said land had been sold for taxes, and that he had no knowledge of the recording of the forged deed until recently. We are of the opinion that the evidence is not sufficient to' establish an estoppel against plaintiff.
Finding no error in the record, the judgment of the circuit .court is 'affirmed.