Roussain v. Norton

• Decision Date: 27 June 1893
• Citation: 55 N.W. 747,53 Minn. 560
• Parties: ROUSSAIN ET AL. v NORTON ET AL.
• Court: Minnesota Supreme Court

53 Minn. 560

55 N.W. 747

ROUSSAIN ET AL.vNORTON ET AL.

Supreme Court of Minnesota.

June 27, 1893.

(Syllabus by the Court.)

1. Where an officer has authority to take acknowledgments anywhere in the state, the addition, in the venue to the certificate, of a wrong county, or where there is no such county, will not effect its validity.

2. Where a deed and the acknowledgment are regular on their face, it will not impair the effect of the record that the acknowledgment was in fact taken before the deed was complete, as where the name of the grantee, or description of the premises, had not been inserted.

3. One purchasing real estate from one appearing to be the owner, by the records in the register's office, is not chargeable with notice that it is assessed for taxation to another person.

4. On the question of the market or selling value of the land, the opinion of a geological expert, not published or known so as to affect people's estimate of the value, that there is valuable stone beneath the surface, is not admissible.

5. Possession of the land, in order to be notice of the possessor's right to one who buys from the apparent record owner, must be a present possession. A former possession, which has ceased, though there be still evidence of it on the land, will not suffice. And where the possession is not shown by residence on the land it must be shown by acts of dominion over it, such as indicate, not mere casual entries, but a continued claim of right.

6. Certain findings of fact held justified by the evidence.

7. And certain facts and appearances on the land, including the presence of graves,-some with gravestones bearing the names of those buried,-considered, and held not to be indicative of the present continued exercise of dominion over the land, so as to be notice to a purchaser from the record owner that some other person claims it.

Appeal from district court, St. Louis county; Searles, Judge.

Action by Zoe Roussain and others against James W. Norton and others. Defendants had judgment, and plaintiffs appeal. Affirmed.

H. S. Lord and M. B. Webber, (John H. Norton, of counsel,) for appellants.

White, Reynolds & Schmidt and Warner, Richardson & Lawrence, for respondents.

GILFILLAN, C. J.

This is an action under the statutes to determine adverse claims to real estate, brought by the widow and heirs of Francois Roussain, Sr., deceased. In 1860 the land in controversy, consisting of one tract of 168 acres, was conveyed to him by United States patents duly recorded in the register's office in the county (St. Louis) in 1863. January 10, 1867, he, by deed absolute in form, but intended as security, and so a mortgage, and duly recorded January 14, 1867, conveyed the land, in terms, to one Morrison. April 15, 1872, Morrison reconveyed the land to Roussain by deed not recorded till March 26, 1890. So that from January 14, 1867, till the conveyance to Johnson, hereafter mentioned, Morrison appeared by the record to be the absolute owner. Roussain died in June, 1885. In January, 1887, Morrison, by deed (the peculiarities in the execution and acknowledgment of which will be hereafter referred to) duly recorded January 28, 1887, conveyed the land to one Johnson, subject to taxes, and a certain tax sale. The consideration expressed in the deed was $200, and the amount required to redeem from the tax sale, and pay off the taxes then on the land, was $181.49. The court below finds, as facts, that Johnson purchased in good faith, and without notice or knowledge of the unrecorded deed of April 15, 1872, or that the deed of January 10, 1867, was intended to operate otherwise than according to its terms, or that after January 10, 1867, Roussain of the plaintiffs had or claimed any interest in the land; and there are similar findings in respect to those who purchased from Johnson, and those who purchased from them. In respect to Johnson there is, in the evidence, strong suggestion to the contrary of the finding. But as a purchaser in good faith from a purchaser in bad faith will be protected, under the registry laws, it is immaterial whether the finding in respect to Johnson is sustained by the evidence, if it be sustained in respect to the purchaser from him.

February 17, 1887, Johnson conveyed to Norton and Patten by deed duly recorded March 9, 1887, and the other defendants claim through those grantees. The circumstances referred to in respect to the execution and acknowledgment of Morrison's deed to Johnson were that Morrison filled a blank form of deed, leaving, however, blanks for the grantee's name, and the description of the property; and in that condition he and his wife signed and sealed it in the presence of two subscribing witnesses, and then, at Superior, in the state of Wisconsin, acknowledged the same before a notary public of that state. The venue to the notary's certificate was, “State of Wisconsin, county of St. Louis-ss.,” there being then no such county in Wisconsin. But according to the statute in that state, as construed by a decision of the supreme court,-both being properly proved as facts,-a notary public in that state may take an acknowledgment anywhere within the state. The purpose of the venue to an official certificate is to show that the official act is done within the territorial jurisdiction of the officer. Any more in the venue than is necessary for that purpose is surplusage, and may be disregarded. This notary's jurisdiction extending over the whole state, the name of the state was all that was necessary in the venue. The addition of surplusage, whether untrue or not, did not affect it. Morrison then took the deed, with said blanks in it, to Duluth, where Johnson filled the blanks, and it was then delivered by Morrison to him. The deed was thus an effectual deed, as to Morrison. The acknowledgment was improperly taken, because, when taken, the instrument was, by reason of the blanks, of no force. That, however, did not affect the record of it. When an acknowledgment appears to have been taken, within his jurisdiction, by the proper officer, and...