Ormsby v. Johnson

• Decision Date: 12 January 1910
• Citation: 24 S.D. 494,124 N.W. 436
• Parties: THOMAS J. ORMSBY, Plaintiff and appellant, v. CHARLES A. JOHNSON, Defendant and respondent.
• Court: South Dakota Supreme Court

24 S.D. 494, 124 N.W. 436 (1910)

THOMAS J. ORMSBY, Plaintiff and appellant v CHARLES A. JOHNSON,

Defendant and respondent

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. Levi McGee, Judge

Affirmed

Schrader & Lewis

Attorneys for appellant.

Buell & Gardner

Attorneys for respondent.

Opinion filed Jan. 12, 1910

WHITING, P. J.

This action was brought by the plaintiff and appellant against the defendant and respondent for the purpose of quieting title to a quarter section of land in Pennington county, S.D. Plaintiff alleges that he is the owner in fee of said land, and that the defendant wrongfully claims title under and by virtue of a pretended warranty deed executed and delivered by Owen Pitts and wife to the defendant in July, 1900, that Pitts and wife never executed or delivered to the defendant the said deed, and that the record thereof is a cloud on plaintiff's title. Plaintiff seeks to be declared the owner in fee of said land and to have the deed to the defendant declared void, and the record thereof canceled. Defendant, answering, denies the allegations of the complaint, except that he admits claiming title by virtue of the deed from said Pitts and wife, and alleges that said Pitts and wife on July 3, 1900, were the owners of said land and conveyed the same to the defendant by warranty deed, and that the deed received by plaintiff was received after the recording of the defendant's deed and with full knowledge thereof. Defendant further alleges that the purchase price has been retained by Pitts and wife, and that the defendant, after receiving such warranty deed, has relinquished the land to the United States government for the purpose of making lieu selection of government lands in Oregon. Defendant seeks to have title quieted in him. Plaintiff, replying, denies the allegations of the answer, except as such allegations are admitted in the complaint, and alleges that the government has never accepted the relinquishment of said land. The cause was tried to the court without jury, and the court made findings of facts and conclusions of law favorable to the defendant, and entered judgment thereon. The plaintiff moved for a new trial, which motion was denied, and he appeals to this court from the judgment of the trial court and from the order denying a new trial.

The court's findings were to the effect that Pitts and wife were the owners of the land on July 3, 1900, and on that date signed and acknowledged a warranty deed containing full covenants of warranty and describing the land in question; that the grantee of said deed was left blank when the deed was signed; that said deed so signed and acknowledged was left with O. L. Cooper to be by him sent to S. A. Kean of Chicago; that said Kean was duly authorized to fill in the name of the granted in said deed, and, when the said deed should be so completed, said Kean was duly authorized to deliver it in its completed form for and on behalf of said grantors; that prior to the delivering the deed the name of defendant was inserted by Kean, and the deed was delivered to defendant upon his payment of $3.90 per acre; that defendant accepted said deed without knowledge that the same had been executed with grantee's name therein left blank; that Pitts and wife received and accepted from their agents, Cooper and Kean, $525 in cash, which they have retained and still retain, that such deed was recorded September 13, 1900; that January 9, 1907, Pitts and wife by warranty deed deeded premises to the plaintiff, which deed was recorded, but no consideration was paid by plaintiff to Pitts and wife or either of them until in September, 1907; that this action was commenced in March, 1907, and the defendant served his answer herein on or about April 20, 1907; that plaintiff at the time he received his deed had actual knowledge of the prior conveyance; that the defendant relinquished said lands to the United States for the purpose of selecting in lieu thereof vacant public lands, and his application for such exchange is still pending.

Appellant strenuously contends that the evidence did not warrant the court in finding that "Kean was duly authorized to fill in the name of the grantee in said deed"; that "S. A. Kean was duly authorized to deliver said deed, in its complete form for and on behalf of said grantors"; that "defendant accepted the said deed without knowledge that the same has been executed with the grantee's name therein left blank"; that "the deed was left with Cooper to be by him sent to Dean"; or that Cooper and Kean were agents for Pitts and wife. It appears without dispute that on July 3, 1900, Cooper was engaged in the business of purchasing patented lands situated within the Black Hills forest reserve,, and in transferring same to parties desiring to...