Swain v. McMillan

• Decision Date: 25 May 1904
• Citation: 76 P. 943,30 Mont. 433
• Parties: SWAIN v. McMILLAN.
• Court: Montana Supreme Court

76 P. 943

30 Mont. 433

SWAIN v. McMILLAN.

Supreme Court of Montana

May 25, 1904

Commissioners' Opinion. Appeal from District Court, Silver Bow County; E. W Harney, Judge.

Action by John W. Swain against A. A. McMillan, as executor of Kind S. Batteiger, deceased. From a judgment granting a nonsuit plaintiff appeals. Affirmed.

J. E Healy, for appellant.

McBride & McBride, for respondent.

CALLAWAY C.

Suit in equity. In his complaint, plaintiff alleged himself to be the owner in fee and entitled to the possession of an undivided one-fifth interest in the Greendale placer, and that the defendant Kind S. Batteiger claimed an interest therein adverse to the plaintiff which arose out of the following facts and circumstances: That on November 10, 1890, the plaintiff placed in escrow for a period of six months a deed conveying the said premises to the defendant and one Cluett, which deed was to be delivered to them upon the performance of certain conditions; that the terms of the escrow agreement were never performed, and the deed was never delivered; that the title to the said property then and ever since has remained in the plaintiff, but that thereafter, and by some means unknown to the plaintiff, the defendant became possessed of the deed, and caused the same to be recorded on January 24, 1893, paying no consideration of any kind therefor, and knowing that no consideration was ever paid or rendered by any person therefor; that on January 12, 1895, defendant obtained from Cluett a deed for an undivided one-tenth interest in said property, and caused the deed to be recorded; that patent to the said property was issued May 12, 1892; that defendant had paid certain taxes on the property, which plaintiff offered to repay; that the title of the defendant is without right; and that said defendant has no estate, right, title, or interest in said premises, or any part thereof, except to the extent of the taxes paid by him. Plaintiff prayed that defendant be required to set forth the nature of his claim, and that it be adjudged that the defendant has no interest or estate in said property, and that the title of plaintiff is good and valid. The defendant denied plaintiff's ownership, admitted his own claim of title, and alleged that the terms of the escrow agreement were performed, that the deed was delivered to defendant by and with the knowledge and consent of the plaintiff, and that the plaintiff was paid the entire consideration therefor. He further alleged that the plaintiff was guilty of laches in bringing this action, and also that the action is barred by the statute of limitations. Plaintiff filed a reply in which he denied the affirmative matter set up in the answer, and alleged, as an estoppel against the defendant, that on July 10, 1891, the defendant caused the plaintiff to execute to him a certain mortgage deed for the described premises, which contained the express agreement that, in case a surveyed division of the said claim be made between the owners thereof, "this mortgage shall attach to and run against and be upon that portion owned by the said John W. Swain," and that defendant placed the mortgage of record on July 18, 1891. At the trial the plaintiff introduced the following documentary evidence: The record of a United States patent showing the Greendale placer to have been conveyed by the government to plaintiff, defendant, and three others. The record of a mortgage purporting to have been executed and delivered by plaintiff to defendant to secure a note made payable to James A. Murray. This note appears to have been signed by A. F. Bray and plaintiff. The mortgage was dated July 10, 1891, and filed for record July 18th following. The mortgage record showed that on May 23, 1896, the defendant entered thereon the following satisfaction: "For value received I hereby certify and declare that this mortgage, together with the debt thereby secured, is fully paid, satisfied and discharged." The record of an instrument dated September 29, 1893, executed by defendant to Archibald A. McMillan, purporting to be an assignment for the benefit of defendant's creditors, and to convey all his estate, "real and personal, and his chattels, effects, debts and choses in action." It specifically mentioned an undivided one-fifth interest in the Greendale placer. The record of a deed executed by McMillan reconveying to defendant the property mentioned in the instrument of September 29, 1893. The record of a deed dated November 10, 1890, purporting to have been executed by plaintiff to defendant and one Cluett, conveying to them an undivided one-fifth interest in the Greendale placer for a consideration of $600. It was recorded January 24, 1893. The record of a deed dated November 12, 1895, purporting to have been executed by Cluett to defendant, conveying to the latter an undivided one-tenth interest in the Greendale placer. No oral testimony was introduced, except that which pertained to the introduction of the deeds and to the payment of taxes. Plaintiff offered to repay to defendant the amount which the latter had paid for taxes upon the premises in controversy. Plaintiff did not testify. At the close of plaintiff's case, defendant moved for a nonsuit, which was granted, and judgment was thereupon entered. Plaintiff moved for a new trial, which was denied. Defendant having died, Archibald A. McMillan, his executor, was substituted for him. This appeal is from the judgment and order denying plaintiff's motion for a new trial.

The gist of the foregoing is that the plaintiff made a deed, and placed it in escrow, to be delivered in six months upon the performance of certain conditions. He alleges these conditions were never performed. Defendant alleges that they were. Plaintiff alleges that the deed was never delivered. Defendant alleges that it was. Plaintiff alleges that thereafter, and by some means unknown to him, the defendant became possessed of the deed, paying or rendering no consideration therefor. The defendant alleges that plaintiff was paid the entire consideration for the deed, and that it was delivered in accordance with the escrow agreement, and by and with the knowledge and consent of plaintiff. All of these were material allegations on the part of plaintiff, and all were denied. The burden was upon the plaintiff to prove them, and this he failed to do. The only evidence which he produced, as we have seen, was documentary. From this evidence he says certain legal presumptions should be drawn. For instance, he says that, since defendant caused plaintiff to execute the mortgage on July 10, 1891, two months after the six-months escrow period had expired, it must be taken as conclusive that the deed had not then been delivered. In this connection it must be remembered that the first mention of this mortgage and its recordation appears in plaintiff's reply as new matter, and is deemed denied by defendant. Code Civ....