Gale v. Shillock

• Decision Date: 04 October 1886
• Citation: 30 N.W. 138,4 Dak. 196
• Parties: Gale and others v. Shillock and others, Defendants, and another, Appellant. (Frazier, Intervenor.)
• Court: South Dakota Supreme Court

30 N.W. 138

4 Dak. 196

Gale and others

v.Shillock and others, Defendants, and another, Appellant. (Frazier, Intervenor.)

Supreme Court of the Territory of Dakota.

October 4, 1886.

Appeal from district court, Minnehaha county.

Wm. E. Church and Francis, JJ., dissenting.Boyce, Noyes & Boyce, for appellant, Smith. Melvin Grigsby, for respondents, Gale and others.

PALMER, J.

This action was commenced by issuing the summons on the twenty-seventh day of September, 1882, and was brought by the plaintiff Artemas Gale to quiet his title to 160 acres of land situate in the county of Minnehaha, territory of Dakota. The chain of title under which the plaintiff claims is as follows: Patent from the government to Margaret Frazier, July, 1864; power of attorney from Margaret Frazier to W. H Grant, December 9, 1868; warranty from Margaret Frazier, by W. H. Grant, attorney in fact, to L. E. Gale, wife of plaintiff Gale, October 12, 1870; a devise from said L. E. Gale (who deceased June 27, 1880) to the plaintiff Artemas Gale; a deed from Artemas Gale to the plaintiff Helen G. McKinnon, August 1, 1883; and a deed of an undivided one-half interest in said land by Helen G. McKinnon to plaintiff Grigsby, August 14, 1883. The last two deeds were executed during the pendency of this suit. The plaintiff Gale further alleges in his complaint that from the fifteenth day of June, 1871, to the time of her death, the premises in question were in the actual possession of the said Louisa E. Gale, and her husband, this plaintiff Artemas Gale; that, from the date of the death of the said Louisa E. Gale until the commencement of this action, the plaintiff Artemas Gale was in sole possession of the same; that the defendants, and each of them, unjustly claim to have title in fee to said premises,-with the usual prayer that the defendants be barred from all claim to the estate in question, etc.

Byron M. Smith only answered. On the nineteenth day of December, 1882, the defendant Byron M. Smith made his answer, in which he seeks to defend his title through the following chain: First, by admitting the patent, as set forth in the complaint, to Margaret Frazier; second, that said Margaret Frazier conveyed said land by deed to one Oscar Hodgdon on the twenty-ninth of May, 1872, and that said Hodgdon conveyed the same land, by deed, to the said Byron M. Smith on the twentieth day of June, 1874. Defendant Smith therefore insists that he has the legal title and right of possession. Smith, further answering, attacks and denies that plaintiff Gale has any legal title in said land, and avers a wrongful possession of the whole of said land by Gale since the year 1876. The answer then, upon information and belief, charges fraud in various ways and transactions pertaining to plaintiff's chain of title, which are unnecessary to consider here. This answer was subscribed and sworn to by the defendant Byron M. Smith on the nineteenth day of December, 1882, and was filed in the case on the twenty-sixth day of March, 1883. On the fourteenth day of September, 1883, defendant Smith, by his attorney, filed a supplemental answer in the case, setting forth all the facts previously admitted and alleged, and specifically referred to the previous answer of the said Byron M. Smith; and, in addition thereto, set forth the fact of the conveyances of said land from Gale to McKinnon, and McKinnon to Grigsby. Such motions were made and orders granted, on application of defendant Smith, that Melvin Grigsby and Helen G. McKinnon were made parties plaintiff, and each made separate reply. On the eighth day of May, 1884, the case was called for trial, whereupon the defendant Byron M. Smith, upon affidavit and the papers in the case, asked leave of the court to file instanter an amended answer, and an amended supplemental answer, which motion was granted.

The next step in the proceeding was a motion and petition of Margaret Frazier in intervention, asking to be made a party defendant, and seeking, by her complaint, to be adjudged a trustee of said lands, for the use and benefit of the said defendant Byron M. Smith. This application was presented by her attorneys, Boyce, Noyes & Boyce, some of whom had been, from the commencement of the proceedings, attorneys for the defendant Smith. The motion was denied; and this order of the court below, denying the motion for leave to file her complaint in intervention, and allow Margaret Frazier to be made party defendant with Byron M. Smith in resisting the plaintiff's claim, is the error assigned upon the intervention branch of the case.

The case was then tried by the court, and from the evidence adduced the court found on all the issues for the plaintiff, and ordered and decreed accordingly. As to Margaret Frazier's right to intervene, three very important questions are presented: First, whether, conceding it to be a proper case for intervention, her complaint is sufficient in law for such purpose? Second, was her application made in time? Third, had Margaret Frazier such an interest in the matter in litigation, in the success of either of the parties thereto, as would entitle her to become a party by intervention? We will consider these in the order stated.

By the first allegation in her complaint we are informed that the patent to the land was issued to her. The second denies any conveyance by her, or by her authority, except on or about the twenty-ninth day of May, 1872, when, she declares, she, “by her certain warranty deed of that date, duly executed, acknowledged, and delivered, and for a good and valuable consideration conveyed, the whole of said land in fee-simple to one Oscar Hodgdon.” The above, though a meager allegation as to the kind of warranty, or the quantity or quality of the consideration for such conveyance to Hodgdon, would doubtless be sufficient to settle one of the conditions contemplated by our statute on intervention, viz.: Margaret Frazier, by thus showing a conveyance of the land from herself to Hodgdon, cannot be in a position to claim an interest “against both” the parties litigating. Her legal status, then, must be as one having an interest in the matter in litigation of one of the parties. She says her interest lies with the defendant Smith. If that be true, it must be by reason of her covenants to Oscar Hodgdon, who is not a party here. Hodgdon being the grantee of Frazier, and the grantor of defendant Smith, it becomes important to inquire what her relations are to Smith, so far as she has “an interest in the matter in litigation” between Gale and Smith. The only information obtainable upon this point is found in her complaint in intervention. By that she says she conveyed in fee-simple, by warranty deed, the land in question, to Oscar Hodgdon, and that Hodgdon subsequently, by deed, conveyed the same to Smith.

It is insisted that Margaret Frazier had a right to intervene, and be made a party, because she was grantor in a deed to Hodgdon, who deeded to Smith; and, if Smith is unsuccessful in this suit, she would be liable on her covenants of warranty to Hodgdon. Upon the complaint, with no further allegations or information concerning the covenants, the court below must have been expected to presume that the covenants in her deed to Hodgdon were such as would pass with the estate, to establish such liability and interest. Conceding that this would be such an interest in the result of the action as would entitle Margaret Frazier to intervene, there is nothing in her complaint, upon which her motion to intervene is founded, from which the court could determine that she would be liable to Smith as a direct and unavoidable result of a judgment for the plaintiff.

The complaint in intervention, under our Code, is governed by the same rules as to its sufficiency as an original complaint. Section 90, Code Civil Proc. The only allegations of the complaint relating to this branch of the case are that Margaret Frazier, by her “certain warranty deed,” conveyed to Hodgdon, and he, by his “certain deed,” conveyed to Smith. The deed from her to Hodgdon is not set out in the complaint; neither is there any allegation as to what covenants of warranty her deed contained. There are several covenants recognized by our Code, and a deed containing any one of them could be properly called a warranty deed. Some of these run with the land, so as to vest in the assigns of the covenantee, and others do no not. The only covenants that run with the land are covenants of warranty for quiet enjoyment, or for further assurance on the part of the grantor. This is the general rule at common-law, and an express provision of our statute. Sections 819-824, inclusive, Civil Code. The covenants named in our statute, and which do not run with the land, are covenants of seizin, of right to convey, and covenants against incumbrances. Civil Code, §§ 1951, 1952. Suppose the covenant in her deed to be of seizin only. That covenant does not run with the land, and is not assignable. Rawle, Cov. 333, and cases cited; Leroy v. Beard, 8 How. 451;Pollard v. Pickett, 4 Cranch, 421;Greenby v. Wilcocks, 2 Johns, 1;Mitchell v. Warner, 5 Conn., 497; 3 Washb. Real Prop. 382. The same is true of any other covenant which does not run with the land, and is not assignable. The covenant contained in her deed, for all that appeared to the court when the motion for intervention was denied, might have been merely a covenant against acts of the grantor, and still her deed could have been called a warranty deed.

Again, it may well be doubted whether a judgment against Smith in this action could in any sense affect the rights of Margaret Frazier, even admitting her covenants to Hodgdon to run with the land. She was never cited into court to defend her covenants. No claim is made that she was in any manner notified to assist in the defense, and the effect of the decisions in this country seem to be that a judgment against Smith in this case might be...