Garland v. Foster Cnty. State Bank

• Decision Date: 14 November 1902
• Citation: 11 N.D. 374,92 N.W. 452
• Parties: GARLAND v. FOSTER COUNTY STATE BANK.
• Court: North Dakota Supreme Court

11 N.D. 374

92 N.W. 452

GARLAND

v.FOSTER COUNTY STATE BANK.

Supreme Court of North Dakota.

Nov. 14, 1902.

Syllabus by the Court.

1. It is held, upon a review of the entire case in this court, in an action to quiet title to real estate, that the finding of the trial court that the plaintiff is the owner of the land in controversy is fully sustained by the evidence.

2. One who relies upon a lost deed to sustain his title to real estate must establish its original existence, its loss, and the material parts thereof, by clear and convincing evidence.

Appeal from district court, Foster county; Charles A. Pollock, Judge.

Action by Agnes E. Garland against the Foster County State Bank. Judgment for plaintiff, and defendant appeals. Affirmed.F. Baldwin, for appellant. Smith Stimmel, for respondent.

YOUNG, J.

The plaintiff brought this action to quiet title to certain real estate, consisting of 160 acres, situated in Foster county, alleging ownership of the same, and to recover the possession of said real estate, and the value of its use and occupation for the time it was withheld by the defendant. The answer denies that plaintiff is the owner or entitled to the possession of said land, and alleges that the ownership and right of possession are in the defendant. The trial court found that the plaintiff is the owner of the land, and entitled to the possession thereof, and to the sum of $280.36, as the value of its use and occupation, and directed the entry of judgment accordingly. From the judgment so entered, defendant has appealed to this court for a review of the entire case.

It is conceded that there is but one question for review, and that is a question of fact. The plaintiff is the original patentee, having obtained a patent from the United States in 1889. Her claim is that she has never conveyed the land, but still retains the title which she acquired under her patent. The defendant claims that plaintiff executed and delivered a deed of the land to her father, Malcolm Nicholson. It was through a conveyance executed by Malcolm Nicholson that the defendant acquired the title upon which it relies. It is agreed that defendant's title is good and valid if Malcolm Nicholson had title; and it is further agreed that, if Malcolm Nicholson did not have title, the plaintiff's title is unassailable, and the judgment of the trial court is in all respects proper. It will thus be seen that the entire case turns upon the question as to whether the plaintiff conveyed the land to Malcolm Nicholson. The trial court found that she did not. We have no hesitation in reaching the conclusion that this finding of the trial court must...