Smith v. Gale (144 U.S. 509)/Opinion of the Court
This case was tried in the court of original jurisdiction without a jury, upon the amended and supplemental answers of Byron M. Smith, and the replies thereto of Gale, Grigsby, and McKennan, and was appealed to the supreme court of the territory, and thence to this court, upon exceptions of the defendant Smith to certain proceedingns upon said trial.

1. Error is alleged in the refusal of the court to permit Margaret Frazier to file an intervening complaint, and be joined with defendant Smith as a necessary party to the complete determination of the controversy. By section 89 of the Dakota Code of Civil Procedure, respecting parties to civil actions, 'the court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but, when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.' And by section 90: 'Any person may, before the trial, intervene, in any action or proceeding, who has an interest in the matter in litigation, in the success of either party, or an interest against both. an intervention takes place when a third person is permitted to become a party to an action or proceedins between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding any thing adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court,' etc. This complaint set forth, in substance, the issue of the patent to the complainant in 1864, and the conveyance to Hodgdon, May 29, 1872, and averred that Hodgdon had no knowledge or notice that any person was then in possession of the lands; denied that any person was in possession thereof; further alleged the execution of the deed from Hodgdon to Smith of June 20, 1874; and averred that plaintiff had falsely claimed that he or his wife were possession of the and, and that by reason thereof the deeds to Hodgdon and Smith were void. And 'this complainant avers that in case said Smith does not now have the legal title to said land, that the legal title to the whole thereof is now in this complainant, and that she now holds the same for the use and benefit of said Smith, his heirs and assigns, and for no one else.'

These provisions of the Dakota Code above cited are found in the Codes of several of the states, and appear to have been originally adopted from Louisiana, wherein it is held by the supreme court, interpreting a similar section, that the interest which entitles a party to intervene must be a direct interest, by which the intervening party is to obtain immediate gain or suffer loss by the judgment which may be rendered between the original parties. Gasquet v. Johnson, 1 La. 431. In Horn v. Water Co., 13 Cal. 62, the supreme court of California had occasion to construe a similar provision of the Code of that state, and held, speaking through Mr. Justice FIELD, now a member of this court, that 'the interest mentioned in the statute which entitles a person to intervene in a suit between other parties must be in the matter in litigation, and of such a direct and limmediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. * * * To authorize an intervention, therefore, the interest must be that created by a claim to or lien upon the property, or some part thereof, in suit, or a claim to or lien upon the property, or some part thereof, which is the subject of litigation.' In Lewis v. Harwood, 28 Minn. 428, 10 N. W. Rep. 586, the cases from Louisiana and California were cited with approval. In that case the persons who sought to intervene held attachments upon some property subsequent to those of the plaintiff in the suit. The suit was upon certain promissory notes executed to the plaintiff by the defendants, and the interveners claimed that the notes were without consideration and fraudulent; that the plaintiff's attachments were fraudulent; and that the suit and attachments were in execution of a collusive scheme between the plaintiff and defendant to defraud the interveners, who were bona fide creditors of the defendant. It was held that the complaint of the interveners did not disclose such an in terest in the subject-matter of the suit as to entitle them to intervene, and that the plaintiff's motion to dismiss the same should be granted. The decision was put upon the ground that, when the judgment was entered against the defendants, the whole subject-matter of the suit was disposed of; and that the writ of attachment was a part of the remedy, and had nothing to do with the cause of action. 'If property is seized by virtue of the writ to which another has a better right, the vindication of such right involves another and independent judicial inquiry.'

The intervention must be not only to protect the direct and immediate interest of the intervener in a suit, but she is bound to make that interest appear by proper allegations in her petition. Coffee v. Greenfield, 62 Cal. 602. In this case the petition not only fails to show any title in the intervener, and no beneficial claim to or lien upon the property in suit, but it shows conclusively that such interest as she once had has been conveyed away to Hodgdon, and that the only actual interest she could possibly have in the result of the litigation was the contingency of being held upon the covenants of warranty in the deed to Hodgdon. This, however, is not the direct and immediate interest which, under the construction given to this statute by the courts of Louisiana, California, and Minnesota,-a construction which we do not hesitate to adopt,-is necessary in order to entitle a person to intervene. Her liability to Smith would depend upon the scope of her covenants, and could properly be determined in a separate action. But it is needless to consider her claim further, since she has not appealed from the decision of the court denying her right to intervene, and the appeal of Smith brings up that question only so far as the ruling of the court was injurious to his interests.

Appellant's (Smith's) argument in this connection is that, under section 681 of the Cakota Civil Code, 'every grant of real property, other than one made by the territory, or under a judicial sale, is void, if at the time of the delivery thereof such real property is in the actual possession of a person claiming under a title adverse to that of the grantor;' that, as the Gales were in adverse possession of this land under a claim of title when the deed to Hodgdon was delivered, such deed, under the provisions of this section, was void, and conveyed no title to Hodgdon, nor did Hodgdon's deed to himself, and hence that he did not stand in a position to resist the claim of Gale, and that his rights could only be determined in a suit to which Margaret Frazier was a party, since she was in a position to claim that the deed to Mrs. Gale was void by reason of her fraudulent connivance with Grant. For these reasons he claims that the title to these lands is, as against the Gales, still in Margaret Frazier, and that, if she succeeded in showing that her deed to the Gales was void by reason of fraud, her title would inure to his use and benefit, under the deed to Hodgdon and that from Hodgdon to himself. In this connection he calls the attention of the court to a number of cases holding that a deed of land held in adverse possession is good as against the grantor and his heirs, and against strangers, though void as against the party in possession; and that, it being void as against the latter, an action would lie against him in the name of the grantor, notwithstanding such deed, but not in the name of the grantee. A recovery therein, however, will inure to the benefit of the grantee. Hamilton v. Wright, 37 N. Y. 502; Hasbrouck v. Bunce, 62 N. Y. 475, 482; Chamberlain v. Taylor, 92 N. Y. 348; Farnum v. Peterson, 111 Mass. 148, 151, McMahan v. Bowe, 114 Mass. 140.

There is great plausibility in this position, and we are not disposed to hold that the court might not have permitted this complaint in intervention to be filed. But by section 90 of the Code, above cited, such complaint must be filed by leave of the court, a limitation upon the right to intervene which presupposes a certain amount of discretion in the court. Such right ought to be claimed within a reasonable time, and may be properly refused in a case like the present one, where the action had been pending two years, and was about to be tried. Hocker v. Kelley, 14 Cal. 164.

There were other circumstances in this case which doubtless had their influence in determining the court not to permit this complaint to be filed. The Gales had been in adverse possession of the land for nearly 12 years under a claim of title, and, according to the facts found by the court, had broken and cultivated about 20 acres. Hodgdon had received his deed 18 months after the deed to Gale, and Smith had received his deed from Hodgdon in 1874, nearly 8 years before this suit was begun by Gale to quiet his title. although these parties were chargeable with notice of the fact that the Gales were in open and notorious possession of this land, yet, during all this time, they made no movement looking towards an assertion of their own title to it. While, under the cases from New York and Massachusetts above cited, they might not have been able to institute a suit in their own names against Gale, they might have instituted an action against him in the name of their grantor, Frazier, and a recovery thereunder would have inured to their benefit. Instead of that, they lay by for 18 months after the suit was begun, and then, upon the eve of the trial, after Smith had filed an original, an amended, and a supplemental answer, he asked that Frazier be permitted to intervene and set up her title as against Gale. Under this state of facts the court might not unreasonably hold that the application came too late; and that, if Smith desired to assert any rights in the name of Frazier, he should take the initiative, and file a bill in her name to annul the deed to Gale upon the ground of fraud.

2. Several assignments of error relate to the ruling of the court admitting in evidence the power of attorney from Frazier to Grant, and the deed executed in pursuance of such power. These instruments were executed in Minnesota; were acknowledged before a notary public of Ramsey county, in that state, who certified to the same under his official seal, and to this acknowledgment was appended a certificate of the secretary of state of Minnesota, to the effect that the notary taking the acknowledgment had been duly appointed and qualified, etc.; that full faith and credit were due to his official acts; and that his signature was genuine, and the instrument executed and acknowledged in accordance with the laws of the state. Indorsed upon these instruments was the certificate of the register of deeds of Minnehaha county, Dak., that they had been filed for record in August, 1871. Objection was made to the admission of these conveyances upon the ground that, having been executed without the state, the certificate of the officer taking the acknowledgment ought to have been 'accompanied by a certificate under the name and official seal of the clerk, register, recorder, or prothonotary of the county in which such officer resides, * * * specifying that such officer was at the time of taking the proof or acknowledgment duly authorized,' etc., as required by section 528 of the Civil Code of 1865-66. Under this statute, the certificate of the secretary of state was insufficient and immaterial.

In January, 1873, after these instruments were executed, an act was passed by the legislature of Dakota providing 'that the proof or acknowledgment of any deed, mortgage, or other instrument may be made either within or without this territory, and within the United States, before any public officer having an official seal including notaries public,' etc. 'Sec. 2 Whenever the proof or acknowledgment of any deed, mortgage, or other instrument is certifled by a public officer having an official seal, under his hand and seal, it shall be a sufficient authentication of such instrument to entitle it to record,' etc. By section 5: 'All records of instruments heretofore made in any of the counties of the territory, the acknowledgment and certificate of which instruments are taken and certified by the officers, and in the manner herein provided, shall, from and after the taking effect of this act, have the same force and effect as though such certificates of acknowledgment were accompanied by the additional certificates heretofore required by law.'

This curative act did away with the necessity of any certificate additional to that of the notary public, provided the latter certified to the acknowledgment under his hand and seal. The certificates upon the original instruments were attested by an official seal. It seems, however, that, in putting these instruments upon record in the register's office in the county of Minnehaha, the scrivener omitted to make a similitude on the record of the notarial seal, or a scroll or symbol to indicate it, and the defendant introduced the record books in which these instruments had been recorded to show this fact. It was claimed at this point that the deeds did not prove themselves, as they had not been duly recorded. By section 493 of the Dakota Code of Civil Procedure it is enacted that 'every instrument in writing, which is acknowledged or proved, and duly recorded, is admissible in evidence without furthere proof.'

These instruments, however, under the curative act of 1873, were perfect upon their face, the certificate of the secretary of state being mere surplusage, and that of the notary being accompanied by his official seal. Now, while section 5 of this act makes the records of instruments heretofore made evidence, notwithstanding the want of a certificate of authorization, it ought not to be held that the original instrument, which is perfect upon its face, is made inadmissible by the fact that the record of such instrument has omitted the official seal of the notary. The record of the instrument is really but secondary evidence, although by statute it is made primary; and it would be sticking in the bark to hold that the original instrument, having the official seal of the notary to the acknowledgment, should be defeated by the fact that in recording such instrument the seal was accidentally omitted. The record of such instrument might thereby become inadmissible as a substitute for the original, but so slight an omission as this in the record ought not to defeat the original instrument as evidence. Starkweather v. Martin, 28 Mich. 472. It would be a singular perversion of the principles of natural justice if, with a perfect deed before the court and a record which lacked only a scrawl or other symbol of a seal, neither could be admitted in evidence by reason of the fact that they did not exactly correspond, or, to speak more accurately, were not exactly identical, especially when the record could be amended on the spot by adding the representation of a seal. The court should not permit such a plain defeat of justice as this would be by an obstinate adherence to a statutory requirement.

But, if there were any doubts regarding the admissibility of these documents, we think they are resolved by the allegations of the amended answer of Smith, wherein, after denying in general terms that Frazier by her warranty deed, or in any other way, sold or conveyed to Gale the land in question, he proceeds to allege that Grant on December 9, 1868, offered to take her scrip and locate the same upon such of the public lands as he might select, if she would execute to him a power suthorizing him to convey the same to whomsoever he should elect; that she assented to this, and thereupon he presented her a power of attorney in writing, bearing the above date, which he had himself drawn up, representing to her that he would only use it to sell the lands located by the scrip; that thereupon she executed the same; and that subsequently the Gales, knowing all these facts, fraudulently procured Grant on the 12th day of October, 1870, to execute and deliver to Louisa E. Gale a deed of the lands in question; and that Frazier never received any consideration for the same. Taking all these allegations together, they constitute a clear admission that a power of attorney and deed corresponding in description to those offered in evidence were executed upon the days these respectively bear date, but that the same were made use of for the fraudulent purpose of conveying other lands than those intended by Frazier when she executed the power of attorney. The allegations, however, were broad enough to admit the instruments without further proof of their execution or delivery, subject to any attack which the defendant might choose to make upon the manner in which they had been procured, and the use which had been made of them. It is true that when a general denial is pleaded in connection with a special defense of new matter, or two inconsistent defenses are set up, the admissions in the one cannot be used to destroy the effect of the other. Glenn v. Sumner, 132 U.S. 152, 157, 10 Sup. Ct. Rep. 41. In this case, however, there are no inconsistent defenses; the general denial itself is qualified by a denial of each and every allegation of the complaint 'not expressly admitted;' the defense is, in reality, a single one, namely, that Frazier did not sell or convey to Gale the land in question, although she did execute a power of attorney, on its face authorizing Grant to convey according to its terms; and that he did, in pursuance of such power, assume to execute and deliver to Mrs. Gale a deed of this property. The admission of the actual execution and delivery of these instruments, as they appear upon their face, is as clear and distinct as the denial of their legal effect. Cook v. Barr, 44 N. Y. 156; Shafter v. Richards, 14 Cal. 125; Railroad Co. v. Howard, 13 How. 307; Hartwell v. Page, 14 Wis. 49; Derby v. Gallup, 5 Minn. 119, (Gil. 85;) Barnum v. Kennedy, 21 Kan. 181.

3. The thirteenth and fourteenth assignments of error relate to the sufficiency and notoriety of Mrs. Gale's possession to charge Hodgdon and Smith with notice of her claim to the land, in case the record of her deed was not of itself sufficient notice.

In this connection the court below found as a fact that on or about the 15th day of June, 1817, the said Louisa E. Gale took actual possession of such real property; that among other acts of possession and ownership she then caused said real property to be surveyed, and the boundaries thereof to be maked by mounds and stakes; she caused to be broken and cultivated a portion thereof along the north side, consisting of about 10 acres; that subsequently, during year 1874, she caused to be broken and cultivated about 10 acres more of said land, and that, continuously from and after the spring of 1871 to the time of her decease and devise to this plaintiff, Artemas Gale, she continued to openly use, occupy, and possess said real property, and that such possession and occupation was actual, open, continuous, and uninterrupted, and that such occupation and possession of said premises has been continuous by her devisee, said Artemas Gale, and his grantees, the said Helen G. McKennan and the said Melvin Grigsby,' etc. This finding of possession is, under the case of Mining Co. v. Taylor, 100 U.S. 37, the finding of an ultimate fact, and has the same legal effect as the finding of a jury in a special verdict, and the sufficiency of the evidence to support the finding cannot be considered upon this appeal. Improvement Co. v. Bradbury, 132 U.S. 509, 514, 10 Sup. Ct. Rep. 177.

While their actual occupancy and cultivation of the property did not apparently extend to the entire tract, we think it was sufficient, under the case of Ellicott v. Pearl, 10 Pet. 412, to give the Gales a constructive possession of the whole tract, the remainder not being in the adverse possession of anybody. In that case it was held that, where there has been an entry on land under color of title by deed, the possession is deemed to extend to the bounds of that deed, although the actual settlement and improvements are on a small parcel only of the tract. In such case, where there is no adverse possession, the law construes the entry to be co-extensive with the grant to the party, upon the ground that it is his clear intention to assert such possession. So, also, Ewing v. Burnet, 11 Pet. 41, 52; Brobst v. Brock, 10 Wall. 519, 532; Hunnicutt v. Peyton, 102 U.S. 333.

We think there is nothing in section 46 of the Dakota Code of Civil Procedure which, fairly construed, conflicts with this view. Certainly, if there were any doubt in this matter, the finding of possession by the court below would be sufficient to turn the scale in the plaintiff's favor.

4. There is also an assignment of error to the finding that Helen G. McKennan and her grantee, Grigsby, were innocent purchasers without notice of the pendency of the action. The defendant Smith, by his supplemental answer, alleged that they were not purchasers in good faith, nor for a valuable consideration, and that they purchased with notice. To this McKennan and Grigsby made denial.

In order to charge purchasers of property with notice of the pendency of a suitit is necessary, under the statutes of Dakota, to file a lis pendens with the register of deeds of the county in which the land is situated, containing the names of the parties, the object of the action, and a description of the property. There appears to have been no lis pendens filed in this case, and hence no constructive notice of the suit. As the court finds that Mrs. McKennan was an innocent purchaser of the property for a valuable consideration, and had no notice or knowledge of the pendency of the action, or of the ground upon which defendant Smith claimed an interest in the property, and as there is no evidence to contradict this, we know of no reason why she or Grigsby should not be held to have acquired a good title to the property, although purchased during the pendency of this litigation, and although the title which Mrs. Gale acquired might have been impeachable for fraud. It is true that Mrs. McKennan was a sister of Gale, living in Rochester, N. Y., and bought the property while on a visit to her brother; but she swears that she paid $8,000 for it, and there is nothing above the dignity of a suspicion to contradict her.

Several other errors in the action of the court below are set up in the assignment, but they are either immaterial or have been already disposed of in the assignments passed upon.

The judgment of the court below will therefore be affirmed, and the mandate will issue to the supreme court of South Dakota. 

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