Gale v. Shillock

• Decision Date: 06 October 1886
• Citation: 29 N.W. 661,4 Dakota 182
• Court: North Dakota Supreme Court

29 N.W. 661

4 Dakota 182

GALE et al., v. SHILLOCK et al

Supreme Court of North Dakota

October 6, 1886

Appeal from the district court of Minnehaha county.

The facts are fully stated in the opinion.

Judgment affirmed.

Boyce Noyes & Boyce, for defendant appellant, Byron M. Smith.

In the ninth paragraph of the answer the defendant sets up a separate and independent defense to the plaintiff's cause of action and there we must look for the admissions if there are any, of the execution of these instruments.

But this defense is distinct from and independent of all others in the action and is entire in itself, and any admission of the execution of the power of attorney or of the deed which might find its way into this defense would not obviate the necessity of proving execution in support of the averments of the complaint which were put in issue by the denials in another defense. Miller v. Chandler, 59 Cal. 540, and cases cited; Nudd v. Thompson, 34 Cal. 39; Troy and Rut R. R. v Kerr, 17 Barb. 581; Swift v. Kingsley, 24 Barb. 541; Pomeroy's Remedies and Remedial Rights, Sec. 724, and cases cited.

The averments of this separate defense are not admissions of anything stated in the complaint, but are averments of new matter. If treated as admissions at all they are to be taken as an entirety. Ins. Co. v. Higginbotham, 95 U.S. 330; Goodyear v. De La Vergne, 10 Hun. 537; Albro v. Figuera, 60 N.Y. 630; Craig v. Tappin, 2 Sandf. Ch. 78.

The admissions of a party are not competent evidence of the execution of a specialty. Testimony of subscribing witness or deed itself, duly acknowledged and recorded is best evidence. Jenner v. Joliffe, 6 John 9; Hasbrouck v. Baker, 10 John 248; Scott v. Clare, 3 Camp. 236; 1 Greenleaf's Ev. (13th Ed.) § 86.

The original answer was superceded for all purposes by the amended answer. The allowance of the amendment destroyed the force of admissions in the original answer. Barber v. Reynolds, 44 Cal. 497; Gilman v. Cosgrove, 22 Cal. 357; Sands v. Calkins, 30 How. 1.

This is not a substitute for proof. It is, at most, an admission out of court, subject to explanation and contradiction. Beyond all question such an admission cannot prove the execution and due recording of specialties. 1 Greenleaf on Evidence, §§ 86, 96; Fox v. Riel, 3 John, 447; Welland Canal Co. v. Hathaway, 8 Wend. 480; Jenner v. Joliffe, 6 John, 9; Hasbrouck v. Baker, 10 John, 248; Scott v. Clare, 3 Camp. 236.

A deed or instrument not acknowledged and certified as required by law is not entitled to record and if recorded its record is not notice to subsequent purchasers.

Wade on Notice, Secs. 124, 125 and 126; Pringle v. Dunn, 37 Wis. 449; Girardin v. Lampe, 16 N.W. 614 (Wis.); Buell v. Irwin, 24 Mich. 145, 152, 153; Meskimen v. Day, 10 P. 14; Taylor v. Harrison, 47 Texas, 454, 26 Am. Rep. 304; Kelsey v. Dunlap, 7 Cal. 160; Hastings v. Vaughn, 5 Cal. 315; Fogarty v. Finlay, 10 Cal. 239; Wood v. Cochrane, 39 Vt. 546; Potter v. Dooley, 55 Vt. 516; Musgrove v. Bonser, 5 Oregon, 313, 20 Am. Rep. 737; Fleschner v. Sumpter, 6 P. 506 (Oregon); Gillig v. Maass, 28 N.Y. 191; Bishop v. Schneider, 46 Mo. 472, 2 Am. Rep. 533; Blood v. Blood, 23 Pick. 80; Barnard v. Campau, 29 Mich. 162.

And if a deed be properly executed but defectively recorded, as to subsequent purchasers, the defective record is not notice and cannot be aided by the production of the original instrument. Girardin v. Lampe, 16 N.W. 614 (Wis.); Taylor v. Harrison, 47 Tex. 454, 26 Am. Rep. 304; Wood v. Cochrane, 39 Vt. 546; Potter v. Dooley, 55 Vt. 516; Sanger v. Craigue, 10 Vt. 555; Beekman v. Frost, 1 John Chan. Rep. 288, 18 John, 544; Pringle v. Dunn, 37 Wis. 449; Sawyer v. Adams, 8 Vt. 172, 30 Am. Dec. 459; Chamberlain v. Bell, 7 Cal. 294; Terrell v. Andrew Co. 44 Mo. 309; Parrett v. Shawbhut, 5 Minn. 323; Barnard v. Campau, 29 Mich. 162, 164.

The party holding unrecorded deed and seeking to establish priority over a subsequent recorded deed has the burden of proof to show notice to the subsequent holder. Gress v. Evans, 1 Dak. 387, 399; Brown v. Volkening, 64 N.Y. 76; Jackson v. Reid, 1 P. (Kansas,) 308; Ryder v. Rush, 102 Ill. 338; McCormick v. Leonard, 38 Iowa 272; Oliver v. Sanborn, 27 N.W. 527, 528 (Mich.); Sanger v. Craigue, 10 Vt. 555; Smith v. Yule, 31 Cal. 180; 2 Pom. Eq. Jur. pp. 219, 242 and 243; Abbott's Trial Ev. pp. 716, 717.

Gale's possession of a part of the property as indicated by the evidence, actual knowledge of which was not brought home to Hodgdon, was not of a character to give the latter constructive notice of Gale's title. See 2 Pom. Eq. Jur. Secs. 620 and 615, and cases cited in the notes thereto.

This occupancy and possession must have been unequivocal. McMeachan v. Griffing, 3 Pick. 150; Brown v. Volkening, 64 N.Y. 76; Page v. Waring, 76 N.Y. 470; Thompson v. Burhans, 79 N.Y. 93.

Melvin Grigsby, for respondent.

They here urge that the official seals of the notaries who took the acknowledgments do not appear of record.

Had this special objection been made at the trial it could have been obviated at once by filing the instruments and bringing them back in the hands of the recorder.

An objection which if properly made on the trial could have been obviated will not be heard on appeal. Merritt v. Seamen, 6 N.Y. 168; Levin v. Russell, 42 N.Y. 255; Sec. 651 Rev. Code; McNulty v. Batty, 2 P. Wis. 59.

Byron M. Smith, in his original answer, admitted both the execution and the recording of these instruments. His original answer was admitted in evidence. This was not error. Greenleaf on Evidence, Vol. I, Sec. 171; Cook v. Barr, 44 N.Y. 156; Power v. Gum, 9 P. 575; Shafter v. Richards, 14 Cal. 125; Mutual Ins. Co. v. Newton, 22 Wall. 32.

Even if it was error to receive these instruments in evidence, it was cured by defendant's evidence, showing their execution and record. Hinds, Lessee, v. Longworth, 11 Wheat. 199; Bronson v. Wiman, 10 Barb. 422; Hayden v. Palmer, 2 Hill, 206; Murray v. Judah, 6 Cow. 489; 3 Wait's Pr. 206, 207.

Possession of part of a tract of land is possession of the whole, where a party claims under title. And "an entry under a deed gives possession of all vacant land described in the deed." Ellicott v. Pearl, 10 Peters, 412; Lessee of Ewing v. Burnett, 11 Peters, 41; Washburne on Real Property.

The possession of any part of the land was notice to Smith sufficient to put him on his inquiry and he was bound to use due diligence in efforts to ascertain the full extent of Gale's claim. 3 Washburne, 3d Ed. 283--284; 15 N.Y. 354; 26 N.Y. 24; 50 N.Y. 345; 90 N.Y. 473; Landes v. Brandt, 10 How. U.S. 348; Fair v. Stevenot, 29 Cal. 486; Lestrade v. Barth, 19 Cal. 676; Landers v. Bolton, 26 Cal. 394.

PALMER, J. TRIPP, C. J., who, having been of counsel, did not sit in the case.

OPINION

PALMER, J.

This was an action brought by Artemas 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 Louiza E. Gale, wife of plaintiff; and by will from his said wife to himself. He alleged possession by himself and wife from the 15th 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 possion 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 other, were the title papers under plaintiff in his complaint claimed title from Margaret Frazier to Louiza 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 Louiza 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...