Schmidt v. Musson

• Decision Date: 03 April 1906
• Parties: SCHMIDT v. MUSSON et al.
• Court: South Dakota Supreme Court

107 N.W. 367

20 S.D. 389

SCHMIDT v. MUSSON et al.

Supreme Court of South Dakota

April 3, 1906

Appeal from Circuit Court, McCook County.

Action by H. L. Schmidt against Sarah Musson and others. From a judgment for defendants, plaintiff appeals. Reversed.

H. H Keith and E. H. Wilson, for appellant. A. C. Biernatzki, for respondents.

CORSON J.

This action is brought by the plaintiff to quiet title to a certain quarter section of land in Hanson county and to cancel of record a certain deed purporting to be executed by the plaintiff to one Thomas F. Musson, deceased. Findings and judgment being in favor of the defendants, the plaintiff has appealed.

The defendant Sarah Musson is the widow of Thomas F. Musson deceased, and the other defendants therein named, except the Iowa Loan & Trust Company, are children and legatees of the deceased. The Iowa Loan & Trust Company claims an interest in said property by virtue of a mortgage executed by said Musson in his lifetime. It is disclosed by the record that on and prior to the 28th day of July, 1899, the plaintiff and said Thomas F. Musson were the principal owners of a stone quarry situated in said Hanson county, and that the plaintiff had the legal title to the quarter section of land in controversy in this action; that some differences existed between the plaintiff and the said Musson growing out of the transactions connected with the said quarry business, and that on said day they effected a settlement and entered into a contract in writing of which the following is a copy: "For and in consideration of a quitclaim deed to the N. E. 4 of Sec. 25 Twp. 103, range 57, Hanson Co., S. D., I, Thomas F. Musson, hereby sell and make over unto H. L. Schmidt all my right, title, and interest in the Spencer Stone Co., S. D., and its lands and personal property of every description. The said H. L. Schmidt is to pay a certain claim or mortgage now on the N. E. 4 of Sec. 25, Twp. 103, range 57, Hanson Co., S. D., of fifteen hundred dollars. The said H. L. Schmidt now holds two certain notes for $250 each dated Nov. 27, 1894, signed by the Spencer Stone Co. and endorsed by Thos. F. Musson, which notes are included in above settlement. The said Thos. F. Musson holds two notes of $250 each, same as above mentioned, and is also included in above settlement. All claims against the Spencer Stone Co. held by the C. E. Simmins estate will be paid and settled by the said H. L. Schmidt. Witness our hands and seals this 26th day of July, 1899." This contract was drawn by one Hoese, a banker at Spencer, at the request of the parties, and was executed in duplicate. At the same time a quitclaim deed was executed by the plaintiff to the said Musson and left with said Hoese upon what is claimed by the plaintiff to be a subsequent agreement entered into between the plaintiff and the defendant Musson.

The terms of this alleged new agreement or additional contract are thus stated by Mr. Hoese, who appears to have been the only witness to the transaction outside of the parties thereto. In his direct examination Mr. Hoese testified as follows: "Q. You may state what connection you had with the transaction between these parties on that date? A. They appeared in the bank at Spencer and asked me whether I had time to draw a contract between them. I told them I would if they would dictate it. They said they were ready to draw it. I got out some paper, ink, and pen, and drew the contract, dictated by Mr. Musson, although Mr. Schmidt was present; and after the contract was signed before me I drew the deed, a quitclaim deed, which was signed by Mr. Schmidt. Q. State what was said between the parties with reference to the giving of a quitclaim deed of the property, and what should be done with it after it was drawn and signed by Mr. Schmidt? A. This quitclaim deed was drawn by me, signed by Mr. Schmidt, and it was agreed that the same should stay in my possession until Mr. Schmidt could go home and get a new deed drawn, signed by himself and his wife, which he was to deliver to me, and, on delivery of such deed, I was to return the first deed signed by himself only, back to him, and deliver the deed signed by himself and wife to Mr. Musson on his turning over certain books, papers, and notes, tools and all his interest whatsoever pertaining to the Spencer Stone Company. By the Court: Q. You mean comply with the provisions of the written contract? A. If the contract covers these points; yes, sir. The first deed was left with me. Afterwards Mr. Schmidt presented to me a quitclaim deed of this same property signed by himself and wife. Mr. Musson did not turn over to me or the plaintiff the books of account and personal property mentioned in this contract. This first quitclaim deed I held in my possession from then until some time in April of the following year, when I was served with certain papers. *** I delivered the deed to the sheriff of McCook county upon his demand and upon his serving those papers upon me. He gave me a receipt for it. *** I didn't deliver the deed to the sheriff by the acquiescence, request, or knowledge of the plaintiff in this action. I delivered those papers, supposing I was obliged to under the command of the sheriff." On redirect examination the witness says: "A. Mr. Musson stated he would turn over all of his right, title, and interest in the Spencer stone quarry, consisting of books, papers, notes, and tools, stone quarry tools, and Mr. Schmidt said he would give a deed to this quarter of land, and settlement was made on that basis. The quitclaim deed made right then and there was to be left in my hands until Mr. Schmidt could make a new deed signed by himself and wife; that one to be delivered to me and I was to return the old deed back to him and I was to deliver the new deed to Mr. Musson on his doing as he agreed. Q. What do you mean? A. Turn over these things--this property--to Mr. Schmidt. Q. The deed was not to be delivered until this was done on his part? A. No, sir. This deed was not to be delivered until this was done on his part. That was the agreement, and it has never been done. I have never delivered the deed to Mr. Musson." On cross-examination the witness stated: "As near as I can remember, he [Mr. Schmidt] came into the bank and says, 'Mr. Hoese, I have got that deed signed by myself and wife,' and showed me the deed, but he says, 'I am not going to deliver that deed to you, because Mr. Musson has not done as he agreed."'

The plaintiff proceeded to Chicago and caused to be executed by himself and wife a quitclaim deed which was never delivered either to Hoese or the defendant Musson; the plaintiff claiming that he refused to deliver said deed for the reason that Musson had not complied with the terms of his agreement by delivering to the plaintiff the notes, papers, tools, etc., mentioned in the contract. Musson subsequently, in the year 1901, obtained possession of the said quitclaim deed signed by the plaintiff, from said Hoese by means of an action in claim and delivery as stated by said Hoese, of which the plaintiff had no notice until some time thereafter, and placed the same upon record, and under this deed the defendants, the legatees of said Musson, claim title and under which the said Iowa Loan & Trust Company claim a lien by virtue of its mortgage. Subsequent to the execution of the said deed, Musson was in possession of the quarter section of land, and, subsequently to the recording thereof, made valuable improvements thereon, consisting of a dwelling house, barn and outbuildings. No rent for the use or occupation seems to have ever been received by the plaintiff, nor was any claim made by him for the same prior to the commencement of this action. All, or nearly all, of the findings of the court were excepted to by the plaintiff as unsupported by the evidence, and the principal question before us is as to whether or not the evidence supports these findings.

It is contended by the appellant (1) that the contract in regard to the delivery of the deed upon the condition that Musson should turn over to Hoese, for the plaintiff, the personal property, notes, accounts, etc., belonging to the quarry company was a subsequent agreement independent of the written contract, and was never complied with; (2) that the quitclaim deed executed by the plaintiff was never delivered to the said Musson, and that at the time he obtained possession of the same, the said Musson was not entitled thereto and that he acquired no right thereunder; (3) that Musson, having failed to comply with the terms of the oral, subsequent agreement, was not entitled to any deed of the property and acquired no right thereto; (4) that the Iowa Loan & Trust Company, having made its loan to Musson and taken the mortgage executed by him, acquired no valid lien upon the property, as Musson's title was based upon a quitclaim deed, of which the said loan company had at least constructive notice. It is contended by the respondent (1) that the evidence of Hoese was incompetent, for the reason that the entire contract was embodied in the written contract executed by the parties and that that contract could not be modified, changed, or contradicted by parol evidence. It will be observed, however, that the evidence of the oral contract in regard to the delivery of the deed and the conditions upon which the same were to be delivered in no manner contradicts or modifies the written contract, as that contract made no provision for the time or the conditions upon which the deed was to be delivered. The oral contract, therefore, fixing the time when, and the conditions upon which, the deed from Schmidt to Musson should be delivered was entirely independent of the contract, and the evidence relating to the same was...