Western Town Lot Co. v. Pettigrew

GATES, J. The defendant Pettigrew located andi platted the town slite of Salem, D. T. He bought the land upon the understanding that lue was to have a one-fifth interest and Elias E. Drake and Amherst H. Wilder, trustees, four-fifths. He claims that the property amlbraiced 160 acres south of the track of what is now known as the Chicago, St. Paul, Minneapolis & Omaha Railway Company, and only 120 acres north of -the track. The plaintiff contends that the understanding embraced. 160 acres north of the track. The dispute relates to the S. W. J4 of the N. R %. of Sec. 14, Tp. 103, R. 55, 'situate in McCook county. The property now1 in .controversy is that part of outlet B of the felwin iplat of Salem, lying in said 40-acre tract, containing 'approximately 37 aicresi, to' 'wit: That part of the said 40-acre tract lying west of the right of way and depot grounds of the former Dakota iCentral Railway 'Company, now the Chicago & Northwestern Railway Company. At the time of the 'beginning of this action, the records in the office of the register of deeds of McCook county did not show that Pettigrew had ever conveyed the undivided four-fifths: of said outlet, ‘although 'such records do show that he bad' conveyed the remaining 'lands to Drake and Wilder, trustees, by deeds dated .September 22, 1880, and June 9, 1881. At those times the title to the 40-acre tract was in the United States government. Final receipt therefor was issued August 13, 1881, and patent November 10, 1882. The entrymian conveyed to Pettigrew October 5, 1882, and on May 24, 1883, Pettigrew conveyed to Drake and Wilder, trustees, the undivided one-fifth, of said 40-acre tract. A deed from’ Drake and Wilder, trustees, to (plaintiff, dated March 26, 1884, and re [487] corded in the office of the register of deeds- of McClook county on September 3, 1884, in Book H of Deeds', on pages 288, 289, and 290, included all oif salid 40-acre tract -except the land-- embraced in the right of way of the Dakota Central Railway. On October 25, 1884, .an agreement -was entered into 'by Pettigrew and itihie plaintiff whereby it -was -declared! among -other things thiat: “The Western Town Lot Company does hereby- publish, make known-, and declare that -it holds the title to an -equal undivided oneffifth (1-5) -of the lots and- 'lands embraced in and immediately surrounding the town of .Salean, conveyed to it by the said Drake and Wilder, trustees', by deed of March 26, 1884, recorded in the -office of the register of 'deed® in and .for McCook county, Dakota, in Book H -of Deeds, on pages tiwo- hundred' and eighty-eight (288), two hundred and. eighty-nine (289), two hundred and ninety (290), in trust for the use and benefit of the said' R. F. Pettigrew, his heirs, and assignsbut it is. understood and agreed! between the said Pettigrew and1 said -company •that the title to the said, lots and lands shall remain vested in the Western Town Lot 'Company until disposed of and1 soldi by it; that the said company shall have the absolute control of the said property- and may 'deal with it i-n all respects, as if if were the sole and absolute owner thereof, and may se'll and dispose of the whole or any .part thereof for such price and upon such terms as it may deem- reasonable- 'arad proper.” On the'back of said instrument there was. the following (the italics are ours) : “For and in consideration -of the sum. of $430 i-n hand paid by the Western Town Lot Company, the receipt of which is hereby .acknowledged', I hereby sell, transfer, and assign to said Western Town Lot Company all my right, title, and interest in and to the within contract and the premises therein described, including 'any moneys paid or dhe or to 'become -due, on account of any -outstanding -contracts for sale oif any lots, in the town of Salem, Dakota, whether made by said company or by Drake and Wilder, trustees. Amid I do -hereby release and discharge said -company from the performance of any -and' all obli [488] gations in ■ the' within contract contained. Sioux Falls, D. T., January 15, 1886. R. F. Pettigrew.”' Judgment was. entered! decreeing the plaintiff to .be the owner of outiot B, and excluding' delfendiants from airy right, title, or interest -therein. From the judgment arudi an order denying a neiwi triad, thie defendants appeal. [1] The correctnes of the facts recited in. the briefs being mutually contested!, we have resorted! to the original record. It appears- without dispute that from January; 1886; to November, 1913, when 'he entered! upon arid took possession of the' premises in- the night-time, defendant Pettigrew manifested no claim of any right, title, or interest in filie property in any manner whatsoever;' except that shortly previous t-b such entry he refused to ' execute a conveyance to plaintiff at its solicitation. By it®’ sfecomidl finding of fact the trial' court found that Drake' and Wilder, trustees, -conveyed the property to plaintiff by deed dated March 26, 1884, which is- ’itihe deed' hereinbefore referred to, and)— '■ ■’ “thereupon tine said! Western Town Lot Company,' plaintiff herein, entered linitd the possession of said property and for more than 20 yeárs thereafter, and until on or about the 22d day Of November, 1915, continued in the actual, open, and exclusive possesion thereof,' claiming in good faith <to be the Owner thereof.” ' ' ' This finidinig is_ sustained by the ’overwhelming evidence. A discussion of it would serve riioi useful purpose.’ By finding 3 the court found; “That on or about the 15th day of January, 1886, the defendant Richard F. ’Pettigrew] finder and!' by the name of R. F. Pettigrew, ’ for ■ a valuable- consideration to- him .paid- by the Western Town Dot Company, the plaintiff herein, duly executed and delivered! 'to said Western Tolw'n Let Company,' his deed of conveyance .in writing, whereby the -said - defendant. sold, transferred,' and -asáigned- to-- the - plaintiff herein all. his right, title, and! interest in- -‘and to- the premises hereinafter described, together ■ with' other .property,” - ■' ■ ' ' . . . ; ¡-¿]" This finding is" fully ' sustained by flic evidence-. The só-éáilled asS-igriirn’ient' executed’by defendant '-Pettigrew ón- JámiA [489] ary 15, 1886, above set-forth, white hot 'drawn- -with the formality of a deed, was-, in legal' -effect, -a deed of conveyance of all inis interest ini the tract in iqiuesltion. A -description of the land conveyed was- capable of being made -certain by reference to the noted book and page of the records in the register of deeds’ office of -McOook 'county, .and 'although the -instrument was- not entitled! to record- it was a sufficient conveyance oif the. premises as between, the parties. Ford v. Ford, 24 S. D. 644, 124 N. W. 1108. [3] Tibe court alisoi found as a part of said third finding: “And 'thereafter the said Western Town Lot Company, the plaintiff herein, -continued in the actual, open, notorious, and exclusive possession o'f said premises, claiming in good faith to be the o-wmer thereof, and.for mlo-re than- 25>years continuously next prior to the time of the commencement of this action, the said plaintiff bias' paid, all taxes assessed! against said premises before the same became delinquent, and while said) .plaintiff was so in possession- of said- ,property, claiming ini good faith under color of title to be the owner thereof.”. The evidence -shows that plaintiff .paid the taxes- on said premises for the year 1884; for the years: 1886 to. 1899, both inclusive, andi for the years 1901 te» 1915, both inclusive. • No payment was •s'htelwn for the year 1900.. Conceding for -the purpose of this case that the payments for the years p-ri-o-r to 1900 may not be considered because- payments prior thereto- for -i,o consecutive jears subsequent to the passage of -chapter 24, Laws. 1891, were not shown, yet the payments for the years- 1901 to 1914, inclusive (the payment for 1915 not being considered) because roadie at a- time when defendants -were in1 p-o-ssession), 'bring the case within the provisions of section 54, C. C. P. To avoid the effect of these payments, appel-tents -contend that the fact that ¡the tax - -receipts for the years: 1906, 1908-, and 1911 were made out to Frank P. Crandon instead of to plaintiff show a break in the continuity 'of payments by plaintiff. The- receipts for 15- of the j’e&rs, 'beginning with 1889 and ending’ with 19-12: were made' out in the ■ name of F. - P. -Crandon: 'for -the 'plaintiff; cr’-in the name of the-plaintiff-by F.-P. 'Crandon. The • evidence alsoshowed "that 'the plaintiff, actually tnadie the ¡payments for [490] the years 1906, 1908, aod 1911. We think it conclusively appears that plaintiff paid the taxes .for the years 1901 -to 1914, inclusive, and therefore that this portion of the findings shlould ba sustained for those years-. All -other matters argued in the briefs have been considered, but are not deemed)' of sufficient importance to require a reference thereto. The judlgment and order -appealed from are affirmed-. The -application of appellants for a modification of the terms imposed upon granting th-emi leave to amend their brief -is denied, and the order to show cause issued- March 23, 1918, is quashed.