Bliss v. Tidrick

• Citation: 25 S.D. 533,127 N.W. 852
• Parties: BLISS v. TIDRICK.
• Decision Date: 04 June 1910
• Court: South Dakota Supreme Court

25 S.D. 533
127 N.W. 852

BLISS
v.
TIDRICK.

Supreme Court of South Dakota.

June 4, 1910.

Appeal from Circuit Court, Brule County.

Action by Alida C. Bliss against C. D. Tidrick. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

[127 N.W. 852]

Preston & Hannett, for appellant.

James Brown, for respondent.

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

[127 N.W. 853]

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 of 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 may 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 Bk. et al., 13 S. D. 501, 83 N. W. 575. Therefore the appellant, under his purchase, could acquire no greater rights...