Gaston v. Merriam
| Decision Date | 11 March 1885 |
| Citation | 22 N.W. 614,33 Minn. 271 |
| Parties | Andora S. Gaston v. William R. Merriam and others |
| Court | Minnesota Supreme Court |
Plaintiff, claiming to be the owner and in possession of the land in controversy, brought this action in the district court for Ramsey county to determine the adverse claims of the defendants thereto. The defendants pleaded title in themselves, and prayed for judgment accordingly. After the commencement of the action, the defendant Merriam acquired all the title and interest of the other defendants.
The action was tried by Brill, J., who found that the defendant Merriam is the owner of the land in controversy, and ordered judgment accordingly. Plaintiff appeals from an order refusing a new trial.
The facts are very fully stated in the opinion. It was admitted on the trial that no notice of expiration of the time for redemption was ever issued or served in the case of the sale made in 1879 for the tax of 1878. A notice of the expiration of the time for redemption from the sale made in 1878 for the tax of 1877 was served on W. K. Gaston, the husband of plaintiff, as shown by the following return, viz.:
The land was assessed in the name of the "heirs of W. S Davison." It appeared in evidence that the land was vacant and unoccupied till 1883.
Order affirmed.
H. J Horn and W. K. Gaston, for appellant.
Greenleaf Clark, H. C. Eller and W. L. Kelly, for respondents.
The matter in issue is the title to "the west half of the south-east quarter of the south-west quarter of section twenty-five, township twenty-nine (29) north, of range twenty-three (23) west." The plaintiff claims the premises both under the patent title and also under three tax deeds. The defendant claims under the patent title. This will be the first in order to be considered.
1. It is conceded that the land was conveyed by the United States by patent to one Charles R. Conway, who conveyed it in February, 1852, to one Vetal Guerin, under whom, as their common source of title, both parties claim. The evidence in support of plaintiff's chain of title consists of certain judgments rendered and docketed against Guerin, January 4, 1867, executions issued thereon November 13, 1876, on which the premises were sold, and a certificate of sale issued December 29, 1876, to one S. B. Shotwell, who quitclaimed to plaintiff, August 5, 1882. Defendant claims title through mesne conveyances under a deed from Guerin and wife to Charles L. Willis, alleged to have been executed on the fourth of March, 1853. The claim of defendant, and the theory upon which he tried the case, was that this deed, duly executed and correctly describing the premises, was filed for record, but was incorrectly recorded in extenso, and subsequently lost. To establish this title, defendant introduced, under the objections and exceptions of the plaintiff, the following testimony:
(1) What purported to be the record in extenso of a warranty deed from Guerin and wife to Charles L. Willis, dated March 4, 1853, and filed for record March 10, 1853, and recorded in Book E of Deeds, page 340, in the office of the register of deeds of Ramsey county, in which the property conveyed is described as "the west half of the south-east quarter of section twenty-five, township twenty-nine (29) north, of range twenty-three (23) west."
(2) The record of a warranty deed from Willis and wife to William S. Davison, dated July 26, 1853, and recorded July 29, 1853, conveying "the west half of the south-east quarter of the south-west quarter of section twenty-five, township twenty-nine (29) north, of range twenty-three (23) west."
(3) The record of a quitclaim deed from Guerin and wife to Willis, dated June 5, 1869, and recorded June 8, 1869, of the premises last above described, in which it is recited that the deed was to confirm the deed between the same parties executed in March, 1853, and recorded in Book E of Deeds, page 340, and "to correct an error in the record description of said property in said original conveyance, in which said property is described as 'the west half of the south-east quarter of said section twenty-five;' the words 'of the south-west quarter,' after said description, being omitted from the record."
(4) Deeds of quitclaim of the premises in dispute from the heirs of William S. Davison to the defendant Merriam, executed in 1883.
(5) The reception book from the office of the register of deeds of Ramsey county for the year 1853, in which there was the following entry:
n.
Vetal
C. L.
West half
C. L.
$ 1.00.
W. Deed. E.
Deeds. 340
P. M.
Township
29, Range
23.
(6) The evidence of Willis, who testified "that he had no deed in his possession made by Vetal Guerin to him in March, 1853," and his attention being called to the record of the deed dated March 4, 1853, from Guerin and wife to him, "that the deed never came into his possession; that he had looked for the deed the past few days; that he didn't recollect of having given it to anybody; that he was satisfied it never came into his possession."
(7) The evidence of Mr. Olivier, the abstract clerk of the county, who testified that he had examined all the records relating to the south-east quarter of section twenty-five, township twenty-nine (29) north, of range twenty-three (23) west, and that Guerin never did own any property there, as shown by the records; that the records do not show that he ever owned any property in that quarter-section. It was also a conceded fact in the case that Guerin owned the premises in controversy on the fourth of March, 1853. So far as appears, Guerin never made any other disposition of these premises, nor ever made any claim to them after that date. Both Guerin and Davison had deceased before the commencement of this action.
On this evidence the court found, as a fact, that on the fourth of March, 1853, Guerin and wife conveyed the premises to Willis.
This branch of the case, therefore, raises three questions: (1) Was a foundation laid by proof of the loss of the original deed for the introduction of secondary evidence of its contents? (2) Was the evidence tending to prove the contents of the deed, and that it was incorrectly recorded, competent? (3) If so, did it justify the finding of fact?
In the first place, it clearly appears that a deed from Guerin and wife to Willis was executed, delivered, and filed for record in March, 1853. Willis testifies to nothing to the contrary. In view of the connection in which he says that the deed never came into his possession, we would clearly understand him as referring merely to the time after it was filed for record. But even if he meant that it never at any time came into his possession, this in no way proves that it was never delivered. He does not intimate that no such deed was ever executed, or that it was filed for record without his knowledge or consent. Manual possession of a deed by the grantee is not essential to a legal delivery. Delivery to an agent, or delivery to a stranger, or for record, even if done without the knowledge of the grantee, is, if followed by his assent, a good delivery. 3 Wash. Real Prop. (4th Ed.) 283, 284; Stevens v. Hatch, 6 Minn. 19, (64.) In this case, assuming that this deed conveyed the premises in question, Willis's assent and acceptance appear from his conveying them to Davison three months afterwards. The loss of the original is sufficiently established by the evidence of Willis, in connection with the entry in the reception book tracing the instrument out of the register's office. Hence the fact that a deed had been executed and delivered, and subsequently lost, must be taken as proved.
Again while the statute makes the record of a conveyance competent evidence, it is not conclusive. Its effect may be rebutted by other evidence. Gen. St. 1878, c. 73, § 96. If a deed has been incorrectly recorded, the party claiming under it is not concluded by the imperfect record, (waiving for the present the question of the right of subsequent bona fide purchasers under the recording acts,) but may introduce in evidence the original deed, or, if that is lost, may introduce parol evidence of its contents and show that it was not correctly recorded. Harvey v. Thorpe, 28 Ala. 250; Sams v. Shield, 11 Rich. Law, (S. C.) 182; Sexsmith v. Jones, 13 Wis. 565. The entry in the reception book was competent evidence for these purposes. We shall not follow counsel for plaintiff in their able discussion of the questions as to what relation this bears to the record in extenso, or whether it constitutes constructive notice to subsequent purchasers in cases where the full record is incorrect. It is sufficient for present purposes that the reception book was a record or official register required by law to be kept by the register of deeds, and in which he was required to make these entries under the appropriate columns. Rev. St. 1851, c. 8, art. 2, § 4. Under the head of "Where Situated," or "Description," as it was more accurately called in this case, it was his...
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