Moen v. Moen

• Decision Date: 07 October 1902
• Citation: 16 S.D. 210,92 N.W. 13
• Parties: JOHANNA BERTINA JOHNSDATTER MOEN, Plaintiff and appellant, v. JOHN J. MOEN, Defendant and respondent.
• Court: South Dakota Supreme Court

16 S.D. 210

92 N.W. 13

JOHANNA BERTINA JOHNSDATTER MOEN, Plaintiff and appellant,

v.

JOHN J. MOEN, Defendant and respondent.South Dakota Supreme Court Appeal from Circuit Court, Lincoln County, SDHon. Joseph W. Jones, Judge Reversed P. J. Bodge and Frank & Aikens Attorneys for appellant.O. S. Gifford, E. C. Ericson, C. E. Benedict Attorneys for respondent.Opinion filed Oct. 7, 1902

HANEY, P. J.

In this action the learned circuit court found the facts to be as follows:

“(1) That the plaintiff herein is the illegitimate child of John Johannessen Moen, otherwise known as John K. Moen, deceased, described in the plaintiff’s complaint.That she was born in Norway, Europe, on or about the 24th day of September, 1874, where she resided until the year 1893, when she came to South Dakota, and has since lived in said state.That Britt: Iverson was the mother of plaintiff, and that she was also born and at all times lived in said Norway, Europe, where she now lives.

(2) That the said John Johannessen Moen, otherwise known as John K. Moen, was born and lived in said Norway, Europe, until the latter part of ,1874, or the early part of 1875, when he came to the United States, and settled in the territory of Dakota.That the said John Johannessen Moen, otherwise known as John K. Moen, did, before leaving said Norway, but while a resident and citizen of said country, and after the birth of plaintiff, to wit, in the latter part of the year 1874, acknowledge himself to be the father of the plaintiff, in writing, signed and executed by him, the said John Johannessen Moen, and in the presence of a competent witness.

(3) That the said John Johannessen Moen, otherwise known as John K. Moen, came to the territory of Dakota in 1875, settled and made a homestead filing or entry upon the land described in plaintiff’s complaint, as follows, to wit, the northeast quarter of section 30, in township 96 north, of range 49 west of the fifth principal meridian, Lincoln county, South Dakota; and the said John Johannessen Moen died in Lincoln county, Dakota territory, in the month of May, 1877, without completing or making final proof thereon.That the said John Johannessen Moen settled and tiled upon said land under and by the name of John K. Moen, and that he never married.That he was at the time of his death, a resident of Lincoln county, Dakota territory, and had been a resident thereof continuously since 1875.

(4) That the defendant herein, John J. Moen, is a brother of the said John K. Moen, described in plaintiff’s complaint.That the said defendant completed and complied with the requirements of the government regarding the improvement of said premises described herein, and made final proof upon the same, and presented said final proof to the government of the United States, whereupon the government did, on or about the 15th day of February, 1885, issue a grant or patent for said land to the heirs of said John Johannessen Moen, otherwise known as John K. Moen.That this defendant has been in possession of said premises since on or about the year 1885.That Johannes Knudsen Moen is the father of said John K. Moen and this defendant, and was living at the time of the issue of said patent to said premises by the government, and that he did, on or about the 21st day of March, 1887, convey said premises described in the complaint herein to the said defendant herein by quitclaim deed executed by him, the execution of which deed was acknowledged before the United States consul at Bergen, in said Norway, who duly certified to said acknowledgment over his official hand and seal.

(5) That there was no law in Norway, Europe, at the time of the birth of plaintiff, nor has there been since, either written or unwritten, by which the plaintiff herein could inherit, under or by virtue of the instrument executed by said John Johannessen Moen, otherwise known as John K. Moen, and described in plaintiff’s complaint and in the second finding of fact herein.

(6) That John Johannessen Moen, otherwise known as John K. Moen, did not at any time publicly acknowledge the plaintiff as his child, nor did he treat her as if she were legitimate, nor did he adopt her in any manner as his child.”

The plaintiff contends that upon the facts so found the court below should have concluded that she was the absolute owner and entitled to the possession of the premises described in the complaint, instead of deciding that defendant was the owner and entitled to the possession.The land in controversy was conveyed by the United States to “the heirs of John K. Moen.”It was located in the then territory of Dakota, now state of South Dakota.Who are intended as grantees in such a conveyance depends upon the law of the state or territory wherein the land is situated.Investment Co. v. Caldwell, 14 SCt 504, 38 LEd 356.It is an established principle, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated.U. S. v. Fox, 24 LEd 192;Comp. Laws, § 2733.Our Civil Code contains the following rules relating to succession or “the coming in of another to take the property of one who dies without disposing of it by will”.“If the decedent leaves no surviving husband or wife, but leaves issue, the whole estate goes to such issue.”“Every illegitimate child is an heir of the person, who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child.”Comp. Laws, § § 3399, 3401, 3403.The Civil Code now in force in this state had its origin in the report of a New York commission, which first took the form of a statute in an act passed, at the fifth session of the legislative assembly of Dakota territory, approved January 12, 1866.The same report, revised and amended, was enacted as the Civil Code of California in 1873.In 1875 a commission was created to revise and codify the laws of Dakota territory.This commission revised the Civil Code then in force, incorporating therein many of the amendments made by the legislature of California.Its labors resulted in the Revised Codes of 1877, which took effect February 17, 1877.The provisions relating to succession, heretofore quoted, are found in the California Code, but not in the territorial Code previous to the revision of 1877.Thus it would appear that the law relied upon by the plaintiff came from California, and was in force in the jurisdiction wherein the land in controversy was situated when her father died, but was not in fore therein when he, in writing, in the presence of a competent witness, acknowledged himself to be her father.Though the facts relating to such acknowledgment, as found by the court below, comply literally with the language of the statute, defendant contends that the plaintiff did not succeed to her father’s estate, because: (1) Such acknowledgment was executed...