Gress v. Evans

• Citation: 1 Dak. 387,46 N.W. 1132
• Parties: Gress v. Evans et al.
• Decision Date: 30 June 1877
• Court: Supreme Court of South Dakota

46 N.W. 1132

1 Dak. 387

Gress

v.Evans et al.¹

Supreme Court of the Territory of Dakota.

June Term, 1877.

Appeal from district court, Minnehaha county.

Barnes, J., dissenting.E. G. Wheeler and Edward H. Brackett, for appellant. C. J. B. Harris, for appellee.

SHANNON, C. J.

The proceedings in this action, until the appeal, were under the Code of Civil Procedure of January 10, 1868, by which the distinction between actions at law and suits in equity, and the forms of all such actions and suits, were abolished, and but one form of civil action was established. The preamble to that Code asserts that the distinction between legal and equitable remedies should no longer continue, and that a uniform course of proceeding in all cases should prevail. Doubts having been entertained whether, under the organic acts creating this and other territories, the Codes adopted therein, which authorized a mingling of common law and chancery jurisdiction in the same proceeding or a uniform course of proceeding in all case legal and equitable, were repugnant to the organic acts, congress, by an act approved April 7, 1874, removed all such doubts by confirming such Codes, and by authorizing such uniform course of proceeding. The trial in this action was by the court at May term, 1875, and its decision, in writing, was given June 20, 1875. To the decision is appended the following general exception, to wit: “To which finding of facts, conclusions of law, and order of the court, the defendants except.” Judgment upon the decision was some time afterwards duly entered. It is to be observed that no further proceedings were had until the notice of appeal was served and filed on 24th of April, 1877, nearly two years after the judgment. The appeal is from the whole of the judgment, and brings up the judgment roll proper. And here the first question arises.

Counsel for appellants contend that, under the general exception (noted above) to the decision of the court below, and in the absence of a case made or exceptions settled, or any attempt in the district court to re-examine the facts found, this appellate court is bound to receive, and to review, de novo, the mass of uncertified evidence which has been laid before us; and, moreover, that a certain stipulation bearing date the 21st of May, 1877, gives this court jurisdiction so to do. The answer to this is that the mere consent of parties cannot confer jurisdiction, unless in a very few special instances. The appellate powers of this tribunal are fixed by law, and can be exercised only in the modes and channels prescribed by the Codes. No matter what may have been the past practice here or elsewhere, now a uniform course of procedure to secure a review on appeal is plainly marked out, and must be pursued. This means that the same steps requisite to obtain a review in an action purely legal must likewise be taken in a case purely equitable. If the counsel who tried the cause believed the findings were incorrect, or that the evidence was insufficient to justify the decision, the remedy under the Code then existing was simple and obvious. Under it, when the trial was by the court, either party desiring to review, upon the evidence appearing upon the trial, a question of fact or of law could make a case, or exceptions, in like manner as upon a trial by a jury, except that the judge, in settling the case, was required briefly to specify the facts found by him, and his conclusions of law. Nothing like this was done, or was even attempted to be done. No effort of any description was made to introduce the evidence, or any part thereof, within the judgment roll. Consequently, such essentials being wanting, there is nothing before us on this appeal except such papers as the clerk was authorized to attach and file as a judgment roll, to-wit, the summons, pleadings, or copies thereof, and a copy of the judgment, with the findings on the facts and conclusions of law of the judge who determined the cause. And this is so whether under the old or new Code of Procedure; for in both the constituents of a judgment roll are identical, and the latter also provides for a case or exceptions. But if, after such lapse of time, anything further to remedy omissions was permissible under the present Code, it is sufficient to state that no such step has been taken. Inadvertence or neglect of parties or counsel to properly prepare a case for review is not a matter for which this court has authority to provide a remedy. The law helps the vigilant before those who sleep on their rights. It should furthermore be borne in mind that under both Codes the judge is a recognized entity in making a case, or in settling exceptions. His concurrence or approbation, as a general proposition, is necessary in the formulating of either the one or the other. In his absence, and without his knowledge or consent, attorneys cannot do this for him, especially when nearly two years have run from the termination of a trial. These remarks are naturally suggested by the anomalous proceedings before us; for among the batch of so-called “uncertified evidence” thrust upon our attention, there is a certain portion which, most manifestly, was never offered in the trial court. Altogether, the case, as thus attempted to be made up, very much resembles an agreement to submit facts in controversy to this court in the first instance, which were not heard or determined in the district court. We must, therefore, take the record as it legally comes before us, and ascertain what, if any, errors are in it. The case as thus presented is upon the original report of the judge, and we are to assume the same facts as found by him. The general rule is that every presumption is to be indulged in favor of a judgment; and this court will not look into evidence which is not authenticated to find a fact for the purpose of reversing a judgment.

The action was brought to quiet plaintiff's title to the S. E. 1/4 of section 9, in township 101, of range 49, and to remove a cloud from his title caused by certain deeds executed and delivered to defendants for said land, and which were by them placed on record before the plaintiff's deeds were recorded. The findings of the judge are that “the land in controversy was entered by what is known as “Indian Half-Breed Scrip,” in the name of Jane Titus, at the Vermillion land-office, in December, 1863, and a patent issued therefor by the United States government, bearing date February 1, 1868, which was filed for record in the office of the register of deeds of Minnehaha county, D. T., May 14, 1872. Plaintiff claims title under deed, quitclaim in form, executed by Moses S. Titus and Jane L. Titus, his wife, to Byron M. Smith, dated March 21, 1869, filed for record in Minnehaha county, May 14, 1872; and deed from Byron M. Smith and wife to plaintiff, dated April 7, 1870, and filed for record in Minnehaha county, May, 1875. Defendants claim title under two certain deeds, executed by Jane L. Titus and Moses S. Titus, her husband, in form quitclaim, with special covenants, one dated May 17, 1871, and filed for record May 23, 1871, and the other bearing date August 11, 1871, and filed for record September 18, 1871; and deed from defendant Evans to defendant Burbank, warranty, for the north half of said tract, executed September 2, 1871, and filed for record in Minnehaha county, October 4, 1871.” As to the title of the plaintiff, Gress, the judge found “that the chain of title from the general government to plaintiff is complete, and the deed from Byron M. Smith to plaintiff vested in him absolutely the fee-simple title, where it still remains, unless it has been divested by the subsequent conveyances to defendants.” And as to these, it is further found that “the deeds from Jane L. Titus and Moses S. Titus to Evans, and from Evans to Burbank, were executed and delivered subsequent to, but recorded before, the deeds to Smith and from Smith to plaintiff.” And this, from the pleadings themselves, is the substantial paramount point in the whole controversy. The complaint substantially alleges fraudulent designs and intentions on the part of the defendants in procuring and recording their deeds, and charges that before the dates of their deeds they had full, complete, and actual notice of the prior unrecorded deed from the Tituses to Smith. The defendants in their answer deny all fraudulent purposes, and assert that they were purchasers in good faith, and for a valuable consideration, and had no notice, either actual or constructive, and claim that they should be protected. The defendants having, admittedly, their deeds first duly recorded, the direct and vital issue before the trial court was, were the defendants purchasers in good faith, and for a valuable consideration? Had they notice either actual or constructive? Upon this issue the findings are that “the deed from Jane L. and M. S. Titus to Evans, dated May 17, 1871, as before stated, is in form a quitclaim,-‘by these presents grant, bargain, sell, release and quitclaim *** all their right, title, interest, claim, or demand. *** To have and to hold the above quitclaimed premises *** so that neither the said party of the first part, their heirs or assigns, shall have any right, title, or interest in and to the aforesaid premises.”’ “The second deed to Evans, dated August 11, 1871, is the same in form, with the exception of the covenants which are as follows: ‘and the said party of the first part *** doth covenant with the said party of the...