Child v. Baker

• Decision Date: 03 July 1888
• Citation: 38 N.W. 725,24 Neb. 188
• Parties: CHILD v. BAKER.
• Court: Nebraska Supreme Court

24 Neb. 188

38 N.W. 725

CHILD

v.BAKER.

Supreme Court of Nebraska.

July 3, 1888.

Syllabus by the Court.

Section 1, c. 73, Comp. St., which provides that “deeds of real estate, or any interest therein in this state, except leases for one year, or for a less time, if executed in this state, must be signed by the grantor or grantors, being of lawful age, in the presence of at least one competent witness, who shall subscribe his or her name as a witness thereto,” etc., held, to require that such witness be without a direct, certain, legal interest in such deed.

The evidence in the case held to sustain the findings and judgment.

Appeal from district court, Furnas county; COCHRAN, Judge.

Action in the nature of a quia timet, by Everard S. Child against Jessie D. Baker. Judgment for plaintiff. Defendant appeals.W. S. Morlan, for plaintiff.

J. H. Dudgeon and E. W. Metcalfe, for defendant.

COBB, J.

This was an action in the nature of an action quia timet. The plaintiff, by his amended and supplemental petition, alleged that on the 2d day of May, 1884, one Melanchthon Wing having, previous to the 15th day of June, 1880, made homestead entry under the laws of the United States upon the S. W. 1/4 of section 17, in township 3 N., of range 24 W., in Furnas county, and having prior to said 2d day of May made application to make final proof and payment on said land, by virtue of the act of congress of June 15, 1880, commonly known as the “Abandoned Homestead Act,” for a valuable consideration agreed to sell and convey all his right, title, and interest in and to the above-described land, and all right, title, and interest he might thereafter acquire in or to said land, by virtue of said act of congress, to the plaintiff; and thereupon, on said 2d day of May, said Melanchthon Wing and Elnola Wing, his wife, in pursuance of said agreement and sale, executed and delivered a quitclaim deed, and remised, released, and quitclaimed unto the plaintiff, all the right, title, interest, estate, and claim of the said Melanchthon Wing and Elnola Wing, his wife, in and to said real estate, which said deed was entered upon the numerical index, and filed for record in the office of the county clerk of Furnas county on the 3d day of May, 1884, and duly recorded. And the said Melanchthon Wing having made proof under said application, and said act of congress being fully complied with, and having established his right to said land, and that he was entitled to a patent therefor, and said proof being accepted by the register and receiver of the land-office, the usual duplicate receipt of the receiver of the land-office duly issued to said Melanchthon Wing, on the 22d day of May, 1884, which said duplicate was duly entered on the numerical index, and filed for record in the office of the county clerk of said county on the 27th day of May, 1884, and duly recorded. And that after the record of said duplicate receipt a patent from the United States for said land was duly issued to said Melanchthon Wing, which said patent was dated the 10th day of September, 1886. That on the 24th day of May, 1884, said Melanchthon Wing and his wife executed and delivered to the said plaintiff a warranty deed conveying the above-described real estate to the plaintiff, which said last-mentioned deed was entered upon the numerical index, and filed for record in the office of the county clerk of Furnas county, on the 27th day of May, 1884. That the plaintiff, at the date of said deed, purchased said property of the said Melanchthon Wing for the sum of $286 in cash, and received said deeds as a conveyance of the same without any notice or knowledge that the defendant, or any other person, claimed any interest or title in or to said land, other than conveyed to the plaintiff by the deeds above set forth. That immediately after the purchase of said plaintiff he took possession of the same, and said premises have been in the actual use and occupation and possession of the plaintiff ever since said purchase, and plaintiff has made valuable improvements thereon. That on the 12th day of June, 1884, the defendant, Jessie D. Baker, intending to injure the plaintiff and cloud his title to said land, filed in the office of the county clerk of said Furnas county a certain fraudulent and forged deed, purporting to be signed by said Melanchthon and Elnola Wing, his wife, containing the usual covenants of warranty, and purporting to convey the above-described premises to said Jessie D. Baker. Said deed was entered upon the numerical index, and filed for record in the office of the county clerk of said Furnas county, and duly recorded. Said forged deed bears date, and purports to have been executed and acknowledged, on the 13th day of February, 1884. The said Jessie D. Baker now sets up and claims title to said premises against the plaintiff, and claims said deed is a valid and a superior title to that of the plaintiff, but refuses to commence an action at law to try her title to the same. That said deed so fraudulent and forged is a cloud upon plaintiff's title, and greatly depreciates the value of said land, with prayer for judgment, etc. The defendant filed her answer, in which she denied each and every allegation of the petition; and, for a second and further defense, she alleged that on the 13th day of February, 1884, one Melanchthon Wing and Elnola Wing, who were the owners of the land mentioned in plaintiff's petition, sold and conveyed said real estate by deed of general warranty to the defendant for a valuable consideration, which was paid them by defendant; that plaintiff, with notice of the execution of this deed to defendant, and for the purpose of cheating and defrauding this defendant, procured said Wing to execute a deed to plaintiff to said real estate, well knowing that the said Wing had conveyed all his interest in said real estate prior to the time of making said deed to plaintiff; that plaintiff caused said deed to be recorded in the office of the county clerk of Furnas county, and that said deed is a cloud on defendant's title to said real estate; with prayer for judgment, etc. There was a reply by the plaintiff, denying all of the allegations of the answer. There was a trial to the court, with a general finding and judgment for the plaintiff. There was no evidence of actual possession of the land, or of improvements thereon by either party.

Owing to the peculiar facts of this case, the evidence on the part of the defendant will be first examined and considered; and, as preliminary thereto, it must be stated that the defendant in her own right makes no proof of title to the land, but Joseph A. Dudgeon appears to have purchased the land, or to have entered into a contract for its purchase from Melanchthon Wing, the original homesteader, in the name of the defendant, but really for his own use and benefit; and he introduced in evidence a deed of the land bearing date February 13, 1884, executed and acknowledged by Melanchthon Wing and Elnola Wing to Jessie D. Baker, for the consideration of $400. This deed is witnessed by J. A. Dudgeon, sole witness, and the certificate of acknowledgment is signed by J. A. Dudgeon, notary public. It appears that Melanchthon Wing had made a homestead entry of the land in question on the 15th day of June, 1880, and one Hermann Albright had filed a contest of his right to perfect said homestead entry; so that at the date of said deed, had it not been for the pendency of said contest, it would have been competent for Wing to commute his homestead into a cash entry, and so perfect his title. Joseph A. Dudgeon, as a witness on the part of the defendant, testified that he resides at Arapahoe, Furnas county, and did so reside on the 13th day of February, 1884. That on the 12th day of February, 1884, Mr. Wing came to the office of witness; told him that his name was Melanchthon Wing. That he had a government homestead, describing it. That he had stopped at the United States land-office at Bloomington on his way back from Iowa, where he had been for several months having his eyes doctored. That he saw the register of the land-office, and inquired about his land just named. That the register told him his land was in a contest, and the decision had passed that office without any appeal on his part, and gone to the commissioner of the general land-office, etc.; that a cash proof could be made on the land; but he, Wing, said: “I haven't money to do anything with;” and he said: “I would a little rather you would do this way. I would rather sell the land, or whatever interest I have in it, to some one else, and in that way get a little money to help myself with, and start again.” “He further asked me,” said the witness, “if I knew of any one who would be likely to buy his interest in the land as it stood at that time. I asked him what he considered his interest, as it stood, worth, and he said he thought it ought to be worth $400. I told him I would see a party that evening, and try and find some one who would go into it, and buy the land. * * * I saw that party that evening that I thought would do that. Jessie D. Baker at that time was stopping at my house in Arapahoe. She is a school-teacher by profession. I asked her on that evening if I could take the title to that land in her name. She consented to it. On the morning of the 13th of February, Melanchthon Wing came to my office again. He asked me if I had seen any person who would go into the transaction,--buy the land.” He stated: “I told him I had. He wanted to know if they would give him the $400 in all for the land. I told him they would. ‘Well,’ he said, ‘then what do you want to do in regard to it?’ ‘I want you and your wife to make a warranty deed of your title to that land,’ * * * I says, ‘on that basis, that cash proof can be made out. I want you and your wife to make a warranty deed to Jessie D. Baker to-day. We will go to Bloomington on the evening train, and I...