Hope v. Stone

• Decision Date: 01 January 1865
• Parties: WILLIAM HOPE vs. PHILO STONE et al.
• Court: Minnesota Supreme Court

Page 114

10 Minn. 114

WILLIAM HOPE vs. PHILO STONE et al.

Supreme Court of Minnesota.

Appeal from judgment of district court, Wabasha County.

Points and authorities for appellant: —

1. The court erred in holding the plaintiff to be a bona fide purchaser without notice.

2. The court erred in holding the records of the deeds from Stone and wife to Allen, and of the deed from Allen and others to the Chippewa Falls Lumbering Company, and of the mortgage from the latter to McKittrick & Branch, and the judgments, etc., against the Chippewa Falls Lumbering Company, were not notice to the plaintiff. These deeds were not outside of but within the chain of title. Stone the grantor was also the grantor of the plaintiff. Parkist v. Alexander et al. 1 Johns. Ch. 394; Comp. Stat. 405-6.

3. The court erred in holding the possession of Robinson was not notice to the plaintiff, or at least that it was insufficient to put the plaintiff upon inquiry.

4. The court erred in holding the covenants to stand seized, etc., contained in the deeds from Stone and wife to Allen, were inoperative, and insufficient to make Stone, when he obtained the title, the trustee of Allen and of his grantees. It is immaterial whether Stone derived title mediately or immediately from the United States.

5. There was nothing in the deeds or in the arrangement between the parties against the policy of the law or against public policy. They did not convey or assume to convey the land, but only the possession, in connection with the covenants to stand seized, etc., and for farther assurance of title if the same should be obtained.

Points and authorities for respondent: —

1. (a). This is an equitable action and can be maintained under the well established rules of equity jurisprudence. 2 Story Eq. Jur. § 700, et seq.; Hamilton v. Batlin, 8 Minn. [403]. (b.) The pleadings show this to be an equity action. (c.) Ejectment could not establish the rights of the parties, because the possession of Robinson, who held as tenant of respondent's grantor, is not adverse or against respondent.

2. (a.) This action is within the statute. Respondent is the owner of the land in dispute in fee-simple absolute, deriving title in a direct line from the government of the United States, which in the absence of an adverse possession confers the legal possession upon him. Rev. Stat. 595, § 1; id. 378, § 8; 4 Kent, 483-4; 5 Pick. 135; 11 Pick. 1. (b.) Robinson by operation of law became Hope's tenant. Smith Lead. Cas. 315; 3 Pick. 154. (c.) Possession of tenant, possession of the landlord, and he may, though not himself in actual possession, commence this action. 2 Bouvier, 352; Rev. Stat. 595.

3. (a.) In this state the record of a deed is not made notice, constructive or otherwise, of its contents. (b.) The effect of a record under our statute is simply to perfect the grant. A subsequent recorded deed has precedence and priority to a prior unrecorded deed; and such subsequent deed to a grantee without notice passes the title. This being the effect of registration, the statute is properly silent as to notice. The record simply shows in whom the title of estates vests. (c.) The records of the deeds and mortgage, and the docketing of the judgments in this case prior to the entry of the land, are not notice of themselves to those within the chain of title after such entry. (d.) In investigating this title Hope was not required to go behind the primary grant of the land by the United States. (e.) The registration of an unauthorized or illegal instrument, or one that is a nullity, is neither effective for any purpose, or notice. Story Eq. Jur. 404; 8 Paige, 361; 3 Ch. Dig. 132; Baze v. Arper, 6 Minn. [220]; Thompson v. Morgan, 6 Minn. [292]; 2 Watts, 75.

4. (a.) The deeds under which the appellants claim, create at most only an equitable interest in them, and Hope, taking his deed without notice of such equity, holds the land discharged of it. 8 Paige, 361. (b.) Such a deed is not notice to subsequent purchasers. 3 Ch. Dig. 132, § 17.

5. The land being Indian lands at the time of the pretended conveyance of Stone to Allen, the same was not conveyed thereby. The deed was a nullity. 8 Wheat. 673; 6 Cranch, 87; 13 Pet. 195; 6 Pick. 557.

6. (a.) The deeds from Stone to Allen were illegal and void as against public policy and the laws. 4 U. S. Stat. at Large, 730; 6 Pet. 557. (b.) A contract may be illegal without contravening any specific statute, provided it is opposed to the general policy and intent thereof. Chit. Cont. § 602; 3 Cush. 419; 14 How. U. S. 449.

7. (a.) If the deeds were void, the covenant to stand seized, is void also, as tainted with the same illegality. What may not be done directly may not be done indirectly. (b.) A covenant to stand seized in no way affects Hope. At best it created but an equity, of which he had no notice, and of and from which he is discharged. (c.) If such covenant amounts to anything it is a personal covenant from Stone to Allen, which Allen did not and could not assign by deed conveying land, as it did not run with the land, for the deed did not operate upon or effect land.

S. S. Campbell and Wilder & Williston, for appellant.

W. W. Phelps & Warren Bristol, for respondent.

BERRY, J.

The land in controversy in this action is a part of what is commonly known as the Half-Breed Reservation lying on the right bank of the Mississippi River and in the vicinity of Lake Pepin. Jenny Cratt was a half-breed or mixed blood of the Sioux nation, and a beneficiary under the treaties and acts of congress by which the reservation was set apart and disposed of. All the parties to this suit except Madeline Stone are white persons. During a period of time prior to August 20, 1853, Jenny Cratt and her husband Oliver Cratt, had been in the sole and exclusive possession of the premises in litigation, claiming the same as their property, and prior to said twentieth day of August, they quit-claimed the same to Philo Stone, with covenants for further assurance, and also executed a bond running to said Stone, in which they covenanted to convey the said premises to him at a future day. Thereupon Cratt and his wife surrendered the sole and exclusive possession of the premises to Stone, by whom it was retained until the twentieth day of August, 1853, when he and his wife quit-claimed the property to H. S. Allen, with covenants to stand seized, and for further assurance. On the sixth day of March, 1855, some doubts being entertained as to the sufficiency of the description of the land in the first deed from Stone to Allen, Stone and his wife executed another quit-claim deed in favor of Allen, which contained covenants of non-claim for further assurance and to stand seized. The premises described in each of the deeds from Stone to Allen are found by the court below to be the same premises to which this action relates. The other defendants all claim under Allen, either directly or through intermediate conveyances, by a variety of titles and liens all subsequent in their inception to the delivery and registration of the deeds from Stone to Allen, and prior to the deed from Stone to Hope. In April, 1857, Jenny Cratt entered a tract of land, comprising the land which is the subject of this action, at the Red Wing Land Office, in conformity to the laws and treaties relating to said Reservation. This is the beginning of the title in fee from the United States. On the eleventh day of July, 1857, she and her husband by a warranty deed conveyed to Philo Stone "all their and each of their right, title, interest, property, possessiov, claim, and demand, whatever, of, in, and to," the premises in controversy, and the deed was duly recorded. On the first of March, 1862, Stone and his wife, by a "full covenant warranty deed," (as is found below) conveyed to William Hope, the plaintiff and respondent, "all their and each of their right, title, interest, estate, property, possession, claim or demand whatsoever to said premises," and this deed was also duly recorded. Here it is proper, though perhaps not very important, to say that a preliminary question was raised as to whether the plaintiff had shown himself to be in possession, and so entitled to maintain this action to determine an adverse claim under the statute, but whatever there is in the point is waived in writing and taken out of the case. Such a practice seems to be sometimes allowed. Whitten v. Whitten, 3 Cush. 195.

To return, there can be no question but that the deed from Cratt and wife, bearing date July 11, 1857, passed the legal estate in fee-simple absolute to Stone. And the inquiry upon the answer to which this case may properly turn, is whether Stone then held the title subject to any valid legal or equitable rights on the part of Allen, or of his representatives in interest, under the quit-claim deeds executed by Stone to Allen in 1853 and 1855, or the covenants therein contained. It will be recollected that Stone executed two quit-claim deeds in favor of Allen, the latter of which was intended to correct an apprehended insufficiency of the description of the land in the first deed. In our view it is unnecessary to inquire whether the first description was sufficient or not. If it was, then the second deed was superfluous for the purpose for which it was intended, and if it was not, then the defect was cured by the second deed. No rights accrued to third persons intervening the deliveries of the two instruments. Aside from the description, the principal difference which we observe is that the the second deed contains a covenant of non-claim which is not found in the first. But so far as this covenant is concerned, the weight of authority would seem to be that in a case like this it would only relate to the estate, right, or interest, actually conveyed by the quit-claim deed, and would not preclude the covenantor from setting up in his own favor, and against the covenantee, any after acquired estate or...