Bliss v. Tidrick

• Citation: 127 N.W. 852,25 S.D. 533
• Parties: ALIDA C. BLISS, Plaintiff and respondent, v. C. D. TIDRICK, Defendant and appellant.
• Decision Date: 04 June 1910
• Court: South Dakota Supreme Court

25 S.D. 533, 127 N.W. 852 (1910)

ALIDA C. BLISS, Plaintiff and respondent v C. D. TIDRICK,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Brule County, SD

Hon. Frank B. Smith, Judge

Affirmed

Preston & Hannett

Attorneys for appellant.

James Brown

Attorney for respondent.

Opinion filed June 4, 1910

WHITING, P. J.

This action was brought to determine the title in and to certain land in Brule county, S. D., of which land one Ole Larson died seised, leaving surviving him his widow, Anna Larson, and several children. Plaintiff claimed to have received title to an undivided one-third interest in and to said land under and by virtue of a deed from one E. C. Rowell, dated September 20, 1902, and recorded September 22, 1902, and plaintiff contended that her said grantor received title to said undivided one-third interest in said land under and by virtue of an instrument recorded in the office of the register of deeds of Brule county on August 14, 1902, which said instrument is in words and figures as follows:

"Know all men by these presents that whereas, I, Anna Larson, of Palo Alto county, state of Iowa, administratrix of the estate of Ole Larson, late of said county, deceased, finding the personality of said estate inadequate to satisfy the debts of said estate filed a petition in the Dist. Ct. of Palo Alto county, Iowa, praying for power and authority to sell the real estate hereinafter described for that purpose, and whereas by an order of the district court, made at its May 1902 term, to wit, on the 28th day of May, 1902, I was authorized to sell the same either at public or private sale and whereas I have caused the same to be appraised and the appraisement to be duly filed and entered of record, and whereas, I, on the 16th day of July, A. D. 1902, did sell the real estate hereinafter named to E. C. Rowell at private sale for $1,300: Now, therefore, know ye, that I, Anna Larson, administratrix as aforesaid, by virtue of the power and authority in me vested as aforesaid, and in consideration of said sum of $1,300, do hereby grant, bargain, sell and convey unto the said E. C. Rowell all the following described real estate situated in Brule county and state of South Dakota, to-wit: The northwest quarter section seventeen, in township one hundred and one, range sixty-seven west of the fifth P. M. And I warrant the title to the same as fully as the authority above mentioned and as by law I am authorized to do. Witness my hand this 23rd. day of July, 1902. Anna Larson, Administratrix Aforesaid."

The defendant contended that he had acquired title in and to said lands by purchase at sale under special execution issued upon a judgment based upon attachment proceedings, wherein said lands had been attached as the property of said Anna Larson, which said attachment suit was begun November 24, 1902. It will be noticed that the deed above set forth purports to be that of an administratrix acting under and by virtue of an order issued from an Iowa court, and it was the contention of the defendant that such deed was void, and that, therefore, no title passed to the grantee named therein, leaving said Anna Larson vested with an undivided one-third interest, as heir of Ole Larson, which one-third interest passed to defendant upon his purchase upon such execution sale. The trial court found in favor of the plaintiff, and the defendant has appealed to this court.

Several assignments of error appear in the record herein, but the only matters meriting our consideration relate to the admissibility in evidence of the record of the purported administratrix deed, which record was admitted for the purpose of proving such deed, and the legal effect of such deed upon the grantor therein named and parties claiming under her. For the purposes of this trial, regardless of whether any testimony was offered to establish the same, it must be conceded that Anna Larson, as the widow of Ole Larson, became vested with an undivided one-third interest in fee simple to the lands in question, for, as was well held in the case of Gilliam v. Bird, 30 N. C. 280, 49 Am.Dec. 379, whenever both parties claim under the same person, neither of them can deny the title of such person, and, as between two parties claiming from the same person, the one holding the elder title must prevail, with, of course, the reservation that a subsequent purchaser in good faith, for value, and without notice actual or constructive, will be protected as against a prior conveyance. It must also be conceded that one who purchases at an attachment sale under an attachment levied subsequent to the transfer of the property by the attachment debtor is not a purchaser for value, and is therefore not protected against such conveyance; and this regardless of the question of notice. Roblin v. Palmer, 9 S.D. 36, 67 N.W. 949; Murphy v. Plankinton Bank, 13 S.D. 501, 83 N.W. 575. Therefore the appellant, under his purchase, could acquire no greater rights than were held by Anna Larson at the time of the levy of the attachment, and, if she had conveyed her title by the aforementioned deed, appellant obtained no rights under such attachment. We think it is also fully established that, if a party is estopped by his deed to dispute that the same conveys the title it purports to convey, such estoppel is binding, not only upon the grantor in such deed, but also upon all parties privy to such grantor, including, as such privy, purchasers under an attachment levied upon the property described in the deed, such levy being subsequent to the execution of such deed, and such attachment issuing in action against such grantor. This was specifically held in the above case of Gilliam v. Bird. See, also, 16 Cyc. at page 716.

Upon the trial of this cause the respondent offered in evidence the record of the above purported administratrix's deed for the purpose of proving such deed. The appellant objected to its receipt in evidence upon the ground that such deed was absolutely void upon its face, that, therefore, it was not entitled to record, and, not being entitled to record, the record thereof was not competent evidence to prove the deed. This objection was overruled, and the record received in evidence. We think the ruling of the court was correct. Appellant cites in support of his position the case of Stone v. French, 37 Kan. 145, 14 Pac. 530, 1 Am.St.Rep. 237; and, while there are some statements by way of obiter contained in the opinion which taken by themselves would seem to sustain appellant's position, yet a reading of such opinion shows clearly that all the court held therein was that the recording of a void instrument could give to it no validity, and therefore innocent purchasers relying upon the record of same could acquire no rights under the recording acts. It did not hold that the record of such instrument could not be received in evidence. Conceding that this instrument was void on its face, it would stand before us the same as any other deed clearly void upon its face, and this court has frequently held, and it has become the established law of this state, that a deed void on its face is yet color of title sufficient for the purpose of founding a claim by adverse possession. Murphy v. Dame, 18 S.D. 42, 99 N.W. 86. It necessarily follows, we think, that such a deed is entitled to record.

The real issue in this case is whether or not by the said purported administratrix's deed the grantor therein either conveyed her one-third interest in said lands therein described, or estopped herself from denying the validity of such conveyance so far as her one-third interest is concerned. The respondent herein contends that this question has been determined by our court in her favor by the case of Johnson v. Brauch, 9 S.D. 116, 68 N.W. 173, 62 Am.St.Rep. 857, but ...