Lowry v. Harris

• Decision Date: 01 January 1866
• Citation: 12 Minn. 166
• Parties: MILNER LOWRY and others v. JAMES H. HARRIS and others.
• Court: Minnesota Supreme Court

Page 166

12 Minn. 166

MILNER LOWRY and others

v. JAMES H. HARRIS and others.

Supreme Court of Minnesota.

Appeal by defendant Harris from a judgment of the district court, Olmsted county.

The action was to quiet the title to certain lands, being part of those which were laid out and platted as the town of Rochester. It was originally commenced by William D.

Lowry against James H. Harris and Samuel R. Woodbury, the latter defendant not defending it. The original plaintiff died after the action was commenced, and the present plaintiffs, his heirs, were substituted as plaintiffs in his stead. The title is derived from Woodbury. In 1855 he conveyed an undivided three-fourths to Lowry, and the other one-fourth to George S. Harris, William W. Cowles, John Williams, David Loring, and the defendant, James H. Harris. The complaint sets forth the subsequent history of the title, from which it appears that April 14, 1856, Loring conveyed his interest to George S. Harris, William W. Cowles, and John Williams, and one Richard B. Smith, and that April 15, 1856, George S. Harris, Cowles, and Williams conveyed their interest to Smith. It also alleges the execution of a power of attorney in February, 1856, by defendant Harris to S. V. R. Harris, authorizing him to convey his interest in the land and the execution by said S. V. R. Harris, in the name of said defendant, of a defective deed purporting to quitclaim the real estate to George S. Harris, William W. Cowles, John Williams, and David Loring. It alleges that Lowry and Smith laid out and platted the lands June 7, 1856, and then made partition of them, each conveying to the other the lots and blocks falling to him in the partition, and that by reason of defects in said power of attorney said defendant appears to have an interest in the lots set apart to Lowry, constituting a cloud on his title.

The answer admits the title of Woodbury, and the conveyances by him, and denies the other allegations of the complaint.

Afterwards, by leave of court, the plaintiffs filed a supplemental complaint, alleging that since the commencement of the action and about April 22, 1863, Richard B. Smith and David Loring executed a quitclaim deed to Lowry, releasing to him all their interest in the lands, which was executed for the purpose of covering certain defects in previous conveyances, and to confirm the legal title in him.

The defendant answered denying this.

On the trial defendant objected to proceeding because Woodbury had not been served with process, the summons being defective in that its style is not "The State of Minnesota."

And it appearing that at his death the original plaintiff left a widow, defendant objected to proceeding because she was not made a party.

And objected to the deed set up in the supplemental complaint on the ground that it does not tend to prove that the original plaintiff had a cause of action when he commenced the action, but that he bought one after it was commenced. Each of these objections was overruled. The other exceptions appear fully from the opinion.

Judgment below was for plaintiffs.

Charles C. Wilson, for appellant.

E. A. McMahon, for respondents.

McMILLAN, J.

The objection to the summons served upon Woodbury, the co-defendant of the appellant in this case, if in any event available to the appellant, is not well founded. It has already been determined that a summons is not process within section 14, article 6, of the constitution of this state. Hanna v. Russell, ante, 43.

It may be necessary to the entire relief sought by the plaintiffs that the widow and administratrix be made a party to this action, and the grantees of Lowry would, perhaps, be proper parties to the action. As to the latter, if they are necessary parties, it so appears on the face of the complaint; as to the former, it does not so appear. Under such circumstances the objection as to the widow and administratrix must be taken by answer, and as to such grantees by demurrer, which is not done in this instance; the objection here being taken, in the first instance, as to the widow and administratrix on the trial of the cause, and as to the grantees, if at all, by answer. Gen. St. c. 66, § 78; Stratton v. Allen, 7 Minn. 502, (Gil. 409;) Tapley v. Tapley, 10 Minn. 448, (Gil. 360;) Zabriski v. Smith, 13 N. Y. 322; Baggott v. Boulger, 2 Duer, 160. While, however, the objection must be overruled, it is for the plaintiff to consider how far the extent of the relief sought in the action may be affected by the nonjoinder of the parties mentioned, or either of them.

The other objections may be embraced under two general divisions: (1) Exceptions to the admission of evidence; (2) to the findings of the court upon the evidence. For greater convenience we shall consider the exceptions to the evidence going — First, to establish the chain of title relied on by the plaintiff to the premises mentioned in the complaint; and, second, to the legal effect of the deed, Exhibit A, so as to deprive the appellant, James H. Harris, of any interest in the premises by virtue thereof and his title thereunder.

It is admitted by the pleadings that on the tenth day of November, 1855, Samuel R. Woodbury, one of the defendants, but by whom no answer is interposed, was the owner and seized in fee of the S. E. ¼ of section 35, in township 107 N. of range 14 W., containing 160 acres, situated in the county of Olmsted. It is established beyond doubt that on the day last mentioned Woodbury and wife executed a deed to "Harris, Cowles & Co. and James H. Harris" for the undivided one-fourth part of 141 ¼ acres of said quarter section, by metes and bounds particularly set forth in the complaint, and on the same day Woodbury and wife conveyed by warranty deed to William D. Lowry, the plaintiff, the undivided three-fourths of the premises last mentioned; that at the time of the first conveyance mentioned the firm of Harris, Cowles & Co. was a business firm in Boston, Massachussetts, consisting of George S. Harris, William W. Cowles, John Williams, and David Loring. It also appears from the evidence, without objection, that on the fifteenth of April, 1856, George S. Harris, William W. Cowles, and John Williams conveyed by deed their interest in said premises to Richard B. Smith. The plaintiffs then offered in evidence a deed from Richard B. Smith and David Loring and Abbie W. Smith to William D. Lowry, dated April 22, 1863, recorded in Book M of Deeds, page 304, to which the appellant excepted on the ground that it does not tend to prove a title in the plaintiff's ancestor at the commencement of this action, but a cause of action substituted long after the action was instituted.

The plaintiff in his complaint relies, for a chain of title, among other conveyances, upon the deed from Loring and wife to Harris, Cowles, Williams, and Smith, dated fourteenth of April, 1856, and upon the deed of Richard B. Smith, by George S. Harris, his attorney in fact, to Lowry, dated June 10, 1856. The deed from Loring and wife was executed in presence of but one witness as to Loring, and is materially defective in the certificate of acknowledgment. The power of attorney from Smith to Harris, under which Harris executed the deed from Smith to Lowry, was defective in the acknowledgment, and was not entitled to record on that account. To cure these defects the deed of April 22, 1863, from Smith and wife and Loring to Lowry was made. This deed was set up in a supplemental complaint, and recites these, among other conveyances, and the defects therein, and that it was made to cure these defects, and in aid of the legal title of the plaintiff, and in confirmation of said previous conveyances, and for the perfection of the legal title thereto, and to the premises to which the previous equity existed in favor of said Lowry in his life, and which vested in these plaintiffs at his death, and that the deed is material in evidence for these purposes, etc. To this supplemental complaint the defendant answered, denying the allegation on information and belief.

The deed of David Loring and his wife, who is since deceased, of fourteenth April, 1856, marked Exhibit K, having but one witness as to his signature, and being materially defective in the certificate of acknowledgment, was not entitled to record; but whatever may have been its effect as to third parties, as a conveyance, we think, as between the parties to the deed, if the title did not pass, at least the equitable interest in the premises passed to the grantee. It is this equitable title which is sought to be strengthened and aided by the legal title to the premises. This it was competent to do. If an original bill is wholly defective, and there is no ground for proceeding upon it, it cannot be sustained by filing a supplemental bill founded upon matters which have subsequently taken place; but if, on the other hand, the original bill is sustainable, and the supplemental bill only enlarges the extent and changes the kind of relief, the latter may be sustained. Jaques v. Hall, 3 Gray, 194, and authorities cited; 2 Daniell, Ch. Pl. & Pr. (3d Am. Ed.) 1594, note 2.

The conveyance from Richard B. Smith, by George S. Harris, his attorney in fact, to Lowry, June 10, 1856, was defective by reason of the fact that the power of attorney from Smith to Harris was not properly acknowledged so as to entitle it to record, or make the record of it evidence. This is a question of evidence. Harris in this deed purports to act as the attorney in fact of Smith, and whatever defect exists in the agency, the act of the defendant is expressly ratified by the principal, both by deed and parol evidence. Under these circumstances the ratification relates to the time of the performance of the act of the agent.

But there is another ground still which applies to both these instruments and must result in overruling the objections to their admission as evidence. The supplemental bill, in connection with...