226 N.W. 557 | S.D. | 1929
Lead Opinion
This action was commenced by the executrix of the estate of Albert W. Wilmarth under a complaint in the statutory form to quiet title to certain real estate in the city of Fluron. The complaint charges among other things that the action is brought for the purpose of determining all adverse claims to such real property, quieting title thereto in the plaintiff, to recover possession of the real estate,, and to recover the rents and profits thereof. It further alleges that defendant claims some right, title, or interest in the estate, but that such claim is without foundation in law or fact. The answer alleges that defendant is the owner in fee by virtue of a warranty deed executed and delivered to defendant by Albert W. Wilmarth. Plaintiff's reply to the answer alleges that the deed under which defendant claims was not a completed deed when executed; that it contained the name of no grantee therein; that other additions and alterations to said deed were made without the consent or knowledge of Albert W. Wilmarth after its execution and alleged delivery to the defendant; that defendant never paid any consideration for the deed; and, in substance, denies the execution and delivery of the deed.
To prove the issues made -by the pleadings, plaintiff introduced in evidence the record and abstract of title showing- all transfers and conveyances up to the deed to defendant, and"rested. Without the deed to defendant, the-title would appear to be in Albert W. A'Vilmarth. Defendant, to support her defense, offered in evidence a warranty deed to the premises signed by Albert W. Wilmarth, dated April 3, 1920, reciting a consideration of $10 and other consideration purporting to convey the premises to May H. Hill, de
To meet the evidence of defendant, plaintiff showed that Albert W. Wilmarth died on the 9th of December, 1924; that after his death she, as administratrix in gathering the assets of his estate and takixxg charge of the papers and documents 'belonging to Wil
The trial court found in favor of plaintiff and entered judgment quieting title to the property in plaintiff, but saving to defendant the right to take as devisee under the will of Albert W. Wilmarth, subject to the right of possession of plaintiff for the purpose of administration; allowing plaintiff the rents and profits from all the real estate pending the determining of the administration and $215 per month rent from the 1st da)' of January, 1925, to the 1st day of January, 1927, in all the sum of $5,160, with interest ; declaring the deed purporting to have been executed by Albert W. Wilmarth to defendant conveyed nothing to defendant and is void and of no effect, and that defendant acquired no right thereunder, and that said deed was never delivered to the defendant; and allowing costs to plaintiff.
From the judgment and an order overruling a motion for new trial, defendant appeals.
By a group of assignments of error, the sufficiency of the evidence to support certain findings of the court is challenged. The situation is this: Respondent, to establish her case, introduced evidence of the title down to and including a conveyance of the real property to Albert W. Wilmarth, now deceased, but did not bring the record title down to the elate of trial. Appellant, claiming through Wilmarth, did not dispute the evidence of title in Wil
Upon this showing appellant might have rested her case and left it to the executrix to attack the title as 'best she could. Appellant, however, seems to have been willing to assume a burden not at that time upon her, and attempted to prove the consideration for the deed, the time and' manner of its payment, and the transaction between herself and Wilmarth, but was not permitted to do so over the objection of respondent that she was disqualified as a witness to such transaction because she was a party to the action brought by the executrix. Thus we have no particular transaction to which appellant is bound, except her statement that she has been in possession of the property and of the deed since April 3, 1920. Respondent, instead of permitting- appellant, of compelling her, if necessary, to tie herself to some definite and particular transaction to support her title, has seen fit to attack her title by evidence against the entire field of presumptions in her favor. Obviously, where there is no direct proof that the deed to appellant is not what it purports to1 he, or that it was not delivered,. or had been materially altered, the circumstantial evidence must he much broader and comprehensive, for it cannot be confined to some specific claimed transaction, but it must negative any legitimate transaction that may have been made. Respondent had no direct proof that the deed was not delivered of of any other defect in the deed or in appellant’s title. The proof submitted by the executrix was circumstantial. One circumstance is that the property was worth at the date of the deed $17,000, but without proof of what was paid by appellant that is meaningless. The deed recites $10 and other consideration. It is well known that the recital pf the amount of consideration in a deed is not binding, but may be orally explained. Another circumstance is that Wilmarth after that date received the rents from the property and accounted for them in his income tax returns, and that this was known and acquiesced in by appellant. It seems to be assumed that this evidences acts of ownership by Wilmarth. It does if he took them under a claim of ownership of the land, but it does not if he took them under the contract of sale as a part of the consideration. Without proof of what the transaction
It does not seem to be seriously contended that the signature on the deed is not the signature of Wilmarth in his own handwriting, and its acknowledgment on the date it -bears seems to be well .established, and that is prima facie evidence of its delivery. 1 C. J. 784, § 80. If it be true that Wilmarth, while holding the legal title in fee, transferred it to appellant, she thereby acquired the legal title. If it is only a naked legal title, she should now re-convey it to the estate, but, if she has any beneficial interest, a court of equity should not deprive her of it. To determine the rights of both parties, the transaction should be shown. Respondent is attacking appellant’s apparent title, and the burden is on her to show the claimed title is void, or, if not void, then the extent of the estate's interest under appellant’s title. As we have pointed out, the evidence is insufficient to show the deed is void, but it strongly tends to show the estate has an interest in the property. Appellant is not bound by Wilmarth’s claims, except in so far as her actions
The judgment and order appealed from are reversed.
Concurrence Opinion
(concurring specially). Respondent having, failed to sustain by competent evidence the issues upon which she had the burden of proof pursuant to her complaint and reply, I concur in the view that the judgment and order appealed from should be reversed.