Gale v. Shillock

• Decision Date: 06 October 1886
• Parties: GALE and others v. SHILLOCK and others.
• Court: South Dakota Supreme Court

29 N.W. 661

4 Dak. 182

GALE and others

v.SHILLOCK and others.

Supreme Court of the Territory of Dakota.

Oct. 6, 1886.

Appeal from district court, Minnehaba county.Boyce, Noyes & Boyce, for appellants, Mamie G. Shillock and others.

Melvin Grigsby, for respondents, Artimas Gale and others.

PALMER, J.

This was an action brought by Artimas Gale to remove cloud from his title to 160 acres of land lying within the limits of the city of Sioux Falls, in Minnehaha county. Plaintiff claimed title under patent to Margaret Frazier; warranty deed from her to Louisa E. Gale, wife of plaintiff; and by will from his said wife to himself. He alleged possession by himself and wife from the fifteenth day of June, 1871, until the death of his wife in June, 1880, and possession by himself from that time until commencement of action; that defendants, and each of them, unjustly claimed to have title in fee to said premises, and prayed for judgment that they, and each of them, be forever barred, etc.

Byron M. Smith, the only defendant who answered, admitted patent to Margaret Frazier, as alleged in the complaint; admitted possession by plaintiff and wife of a strip about 24 rods in width, along the north boundary of said land, from the year 1876 until the present time; denied each and every other allegation in said complaint; alleged title in himself through deed from Margaret Frazier to Oscar Hodgdon, and from Hodgdon to himself; and, as a further defense, alleged that one William H. Grant procured from said Margaret Frazier a certain power of attorney to be used in transferring land thereafter to be located by scrip issued to said Margaret Frazier; that said power of attorney was not intended to be used in conveying the land in question, and that said Gale and his wife, well knowing these facts, procured said Grant to make a deed, under and by virtue of said power of attorney, to Louisa E. Gale, of the lands in question; stated the book and page of the county records where said power of attorney and deed were recorded; and averred that these instruments, and no others, were the title papers under which plaintiff in his complaint claimed title from Margaret Frazier to Louisa E. Gale; and defendant prayed for judgment that he be declared the owner in fee of the whole of said tract of land, and entitled to the immediate possession of the same, and for his costs, and such other equitable relief as he may appear entitled to.

Gale replied, and admitted that the power of attorney to William H. Grant, and the deed from Grant, as attorney for Margaret Frazier, to Louisa E. Gale, were the instruments which he referred to in his complaint, and those under which he claimed; but denied all other allegations of the answer except such as were in harmony with those of the complaint.

On the issues as thus joined the action came on for trial before the court. At the trial, Margaret Frazier asked leave to file a complaint in intervention; but as all her rights have been considered and decided by the court in the separate opinion filed in this case on the appeal of Margaret Frazier, as intervenor. a further consideration of them becomes unnecessary.

Defendant's counsel also moved that the court bring in Margaret Frazier as a necessary party to a complete determination of the controversy, offering, for her, to go to trial at once. This motion was overruled, exception taken, and error assigned. This motion to make Margaret Frazier a party was not based upon any statement or affidavit, and no notice of the motion was served upon the opposite party, and in this respect was not in conformity with the rules of the court, nor with the usual practice. It was determined in her separate appeal that she had no right to intervene. She was not a necessary party. If the issue of fraud had been found in favor of defendant, Gale had no title, and the controversy would have been at an end, as far as Gale and Smith are concerned. If found against defendant, then he can only recover by virtue of the recording acts. In either event the addition of Margaret Frazier as a party could have no effect on the result.

On the trial plaintiff offered in evidence the power of attorney and the deed referred to in the pleadings. Defendant objected to their introduction without proof of their execution, on the ground that they had not been duly acknowledged and recorded, according to the statute. The court admitted both instruments, and the correctness of this ruling presents the most important of appellant's assignments of error.

These instruments, as presented to the court, were both properly acknowledged before a notary public of Minnesota. Each bore upon the back the certificate of the former register of deeds of Minnehaha county, stating the time of filing and place of record in the usual form. The only ground for the objection that was or could have been discovered, from an inspection of the instruments, was that the certificate of acknowledgment of the notary, made out of the territory, was not accompanied by the certificate of a clerk of court, prothonatory, or other officer, as was required by the laws of the territory at the time these instruments were recorded. No more specific objection appears in the record, and the questions presented to the court for determination by such objection would be-- First. Had the execution of these instruments been admitted by the pleadings so as to render further proof unnecessary? Second. Had the recording of them without the certificate mentionedbeen cured by the curative act of January 6, 1873, which was intended to give the same force and effect to the record of instruments unaccompanied by the additional certificate as to those which were?

It further appeared that the register of deeds, in recording these instruments, did not indicate upon his record either by “L. S.,” or a scroll with the word “Seal” inside it, or otherwise, that there was any impression of a notarial seal on either instrument. This ground for error was most strenuously urged by appellant in this court. Had this special objection been stated at the trial, it could have been obviated at once by filing the instruments for record, and bringing them back in the hands of the recorder. The general rule is that an objection, which, if properly made on the trial, could have been obviated, will not be heard on appeal. The rule is so stated in Merritt v. Seaman, 6 N. Y. 168;Levin v. Russell, 42 N. Y. 255; and McNulty v. Batty, 2 Pin. 59.

Again, it appears that the original answer of Byron M. Smith was superseded by an amended supplemental answer. The original answer was verified by Smith, and on the trial plaintiff's counsel offered in evidence so much of it as admitted the execution of the power of attorney and the deed. This evidence was clearly admissible, and sufficient proof of the execution of those instruments. In Cook v. Barr, 44 N. Y. 156, EARL, C., in rendering the opinion of the court, says: “Where a party to a civil action has made admission of facts material to the issue in the action, it is always competent for the adverse party to give them in evidence; and it matters not whether the admissions were in writing or parol, nor when nor to whom they were made.” The same rule is laid down in Shafter v. Richards, 14 Cal. 125; and in the late case of Brown v. Pickard, 9 Pac. Rep. 573. In Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307, it was held that when a corporation had in one action admitted, through its counsel, that a certain instrument bore the corporate seal, that admission could be put in evidence, in another action, to prove that the seal on the instrument was the seal of the corporation.

Again, the execution of both the power of attorney and the deed was admitted by the amended supplemental answer. Appellants' counsel insists that the part of the answer in which the admissions occur is a separate and distinct defense, and that plaintiffs below were bound, notwithstanding these admissions, to prove every fact put in issue by the general denial of the answer. Such is not the rule. In Hartwell v. Page, 14 Wis. 53, which was an action against a sheriff for the unlawful taking of goods, the court says: “The answer specifically admits that the goods in question had been sold by King to the plaintiff, and seeks to avoid the sale by alleging that it was fraudulent. It is true it first contains a general denial of the allegations of the complaint; but we have several times decided that although, under the Code, a defendant may set up as many different defenses as he pleases, yet he cannot, by making repugnant allegations, compel the plaintiff, in order to avoid a denial in one part of the answer, to prove any facts specifically admitted in another part.” In Derby v. Gallup, 5 Minn. 119, (Gil. 85,) which was an action for taking and converting personal property, the answer contained a denial of each and every allegation of the complaint, and, in a further defense set up that the goods belonged to a third party, and that defendant took them on a writ duly issued against said third party. The court held that the taking was admitted. The opinion in that case is very full, and was made still more exhaustive on an application for reargument. Barnum v. Kennedy, 21 Kan. 181, is another case in point. In fact, the rule laid down in Hartwell v. Page is not questioned, so far as we know, by any decision rendered under a code similar to our own. Mutual Ins. Co. v. Newton, 22 Wall. 32, is relied upon by appellant. In that case suit was brought upon a life insurance policy. Among the proofs submitted to the company was the verdict of a coroner's jury, which stated that the deceased came to his death “by a pistol shot, fired by a pistol in his own hand, through the heart.” The policy contained a provision rendering it void in case of suicide. When the proofs were presented to the agent of the company he said they were sufficient as to the death of...