Stinson v. Doolittle

Sanborn, Circuit Judge. The first question in this case is whether Hoyt and wife, by their deed of June 21,1850, described and conveyed to Sehellenbarger 15.02 acres off the north side or off the south side of the N. W. í of the N. W. i of section 30, and if it is found that the deed in question did not describe and convey the north 15.02 acres, that finding is decisive of the case; for, if Hoyt never conveyed this tract to Sehellenbarger, his deed to defendant Doolittle conveyed nothing, a'nd none of the defendants have any title to this property. It is established by the proofs that whatever title remained in Hoyt after he made this deed to Sehellenbarger passed to and was vested in complainant in A. D. 1856, that the deeds by which this title so passed were all recorded as early as the close of that year, and that whatever title Schellen-barger had after the delivery of the Hoyt deed to him has passed to defendant Ormus H. Doolittle under the deeds in evidence. The original deed' from Hoyt to Sehellenbarger is not produced, nor is there among the proofs' the testimony of any witness who has read this deed as to its contents. It does appear that Sehellenbarger caused this deed to be recorded in Boot A, and after its record it was returned to him; that he did not cause it to be recorded in Book IC'of Deeds, in 1854; and that after that record the instrument there recorded was delivered to one S. Walker. The récord in Book K of Deeds varies from that in Book A in 19 particulars, 2 .of which are material variances and 17 are immaterial. One of these material variances is that the 15.02 acres is described in Book A as off the north side, while in Book K it is described as off the south side, of the quarter quarter.' Defendants’ counsel.claim that under this proof the presumption is that the record in Book A is the only correct record of the original deed, and that the record in Book K must be presumed to be the record of some other deed, or of the original deed after it had been changed and made to describe other property than that which it really conveyed. We have been forced to a different conclusion. Each of these records discloses a deed bearing the same date, having the same grantors, the same grantee, the same consideration, the same long descriptions with but two material variances, and an acknowledgment dated the same day and signed by the same notary public. Mr. Sehellenbarger testifies that he 'never obtained but one deed from Mr. Hoyt, and it sefems to us that [15] the presumption that both of these records are records of the same deed, but that there are mistakes in one of them, is in itself much less violent, than it is to presume that the later record is of another deed procured by some third party, or that it is the record of the original deed, unlawfully mutilated and changed to convey other property than that originally described in it, and that the register, in 1854, recorded such a spurious instrument as the record of an original and valid deed. Hence we conclude that these two records are records of the same instrument, and, as in the description, which is material in this case, we find the word “north” written in Book A where the word “south” is written in Book K, one of these records must be erroneous in this particular, and we come to consider which it is. Defendants’ counsel contend that the statute authorizes one record of a deed, and no more, and hence that the record in Book A of Deeds is the only record of this deed that is entitled to weigh as evidence of its contents. We do not so understand the law. We think the statute does not limit the effect of the register’s record of a deed as evidence to the first record thereof, but gives at least equal weight as evidence to later records, properly made. Gen. St. Minn. 1878, p. 537, § 21; Id. p. 805, § 96. We have, then, two records of this deed, each evidence of its contents, and possibly, in the first instance, equally entitled to credence. An examination of the two records, however, inclines the mind to the conclusion that the scribe who made the record in Book K was more careful and painstaking than he who made the record in Book A. There are eight instances where a written word, expressing a number, is followed by the figures expressing the same number in brackets in K, while these figures and brackets do not appear at all in A. The repetition of these numbers makes no change in the meaning or legal effect of the instrument, and it is inconceivable that any one would have interpolated these figures after the first record. The only rational inference is that they were in the original deed, and the more careful scribe .recorded them, wdiile the less careful omitted them; so that a comparison of the two records leads to the conclusion that the later record is more likely to be correct. Again, if the deed read as does the record in K, it conveyed 50 acres in one body; if as in A, the 15.02 acres were separated by an intervening tract from the 34.98 acres there described; and Mr. Scheilenbarger testifies that he bought this 50 acres of Hoyt in one body; that in the succeeding year he sold the same 50 acres he bought of him back to Mr. Hoyt; and the deeds he made to carry out this resale to Mr. Hoyt wore plainly intended to describe, and the later one does describe, the south 15.02 acres, and neither of them describes the north 15.02 acres. From 1856 to 1887 Mr. Stinson, the complainant, paid all the taxes, and about $8,000 of assessments on the property here in controversy for grading streets through it, and Mr. Scheilenbarger, who for years resided within 10 miles of this land, never exercised any acts of ownership over or claimed any title or interest in any of this north 15.02 acres. These facts, which are proved by this record, have forced us to the conclusion that the deed from-Hoyt to Scheilenbarger [16] never m fact described or conveyed the north 15.02 acres of the N. W. i of the N. W. ⅜ of this section 30. This disposes of this ease, and the question of the bonafides of the defendants becomes immaterial; but we are satisfied from the evidence that, before either of the defendants obtained any conveyance of this land, at least four of the complainant’s grantees were occupying houses standing upon this north 15.02 acres, claiming title under the complainant and Hoyt. This was notice of complainant’s rights and title. Morrison v. March, 4 Minn. 429, (Gil. 325;) New v. Wheaton, 24 Minn. 409. The proofs also establish the fact that this 15-acre tract was worth at least $50,000 in 1888; that defendant Charles J. Doolittle discovered the condition of the title to this tract by examining the title to the south 15 acres of the quarter quarter, as he was negotiating a loan upon it; that he examined all the general indexes in the register’s office under the letter S to see if Schellenbarger had conveyed this northerly 15 acres. And he testifies “ he did not know how much interest he [Schellenbarger] might have there, but at any rate he thought he would go into it for a speculation, and risk a little money in it, and there might be something in it.” He then obtained a quitclaim deed of Schellenbarger and wife, for which he paid $30. About a year afterwards, in August, 1889, he conveyed to his brother, Ormus, for $3,200, (⅜500 cash and the $2,700 mortgage on the land,) and then first recorded his deed from Schellenbarger. Ormus never saw the land, although he lives within 75 miles of it, and knew nothing of its value, but bought it solely on his brother’s representations to him. Under this proof the defendants have no better title in equity or at law than Schel-lenbarger had, in "any event, and Scbellenbarger’s testimony shows that he had none in equity, and we have found he had none at law. The complainant is entitled to the relief prayed for in the bill. Let a decree be entered accordingly. Nelson, District Judge, concurs.