US SUPREME COURT DECISIONS

The right to intervene in a cause, conferred by secs. 89, 90 of the Dakota Code of Civil Procedure upon a person interested in the subject of a litigation, relates to an immediate and direct interest by which the intervener may either gain or lose by the direct legal operation and effect of the judgment, and can only be exercised by leave of the court, in the exercise of its discretion, and if the request to intervene is made for the first time in a case which had been pending for two years, and just as it is about to be tried, it is a reasonable exercise of that discretion to refuse the request.

Since the enactment of the Act of January 6, 1873 (Laws of Dakota Territory, 1872-73, pp. 63, 64), a deed of land within Dakota executed and acknowledged without the state before a notary public having an official seal, and certified by him under his hand and official seal, is sufficient to admit the deed to record and in evidence without further proof, and the fact that the recording officer in making the record of the deed fails to place upon the record a note of the official seal does not affect the admissibility of the original.

When the defendant in his answer admits the execution of an instrument set up by the plaintiff in his declaration, and claims that it is invalid by reason of matters set forth in the answer, that instrument is admissible in evidence.

The finding, in a suit to quiet title, that the plaintiff and her grantees had been in continued possession of the premises from a given day is the finding of an ultimate fact, and the sufficiency of the evidence to support it cannot be considered on appeal.

Possession and cultivation of a portion of a tract under claim of ownership of all is a constructive possession of all if the remainder is not in adverse possession of another.

In Dakota, a person purchasing real estate in litigation from the party in possession, in good faith and without knowledge or notice of the pendency of the litigation, may acquire a good title as against the other party if no lis pendens has been filed.

This was an action originally brought by Gale, in the District Court of Minnehaha County against the widow and heirs of Daniel G. Shillock, Samuel A. Bentley, and Byron chanrobles.com-red

Page 144 U. S. 510

M. Smith, to quiet the title of the plaintiff to certain lands of which it was averred the defendants unjustly claimed to have title in fee.

The following facts are abstracted from the finding of the court:

Both parties claimed title from Margaret Frazier, who, on the 1st day of July, 1864, became grantee of the land in fee by a patent of the United States of that date.

Plaintiff's chain of title was as follows:

1. Power of attorney, Margaret Frazier to William H. Grant, executed December 9, 1868, authorizing him to sell and convey all her real estate in the Territory of Dakota, etc., and to execute a warranty deed of conveyance in her name.

2. Warranty deed, Margaret Frazier by William H. Grant, her attorney in fact to Louisa E. Gale, wife of the plaintiff Artemas Gale, executed October 12, 1870, for a consideration of $160. Under this deed, the court found that Mrs. Gale entered into possession, caused the property to be surveyed and the boundaries to be marked, and thence, to the time of her decease, continued in open, continuous, and uninterrupted possession, which possession was continued by Artemas Gale, her husband, and his grantees hereinafter mentioned, who have been, and at the time of the trial were, in actual possession of said premises.

3. Will of Louisa E. Gale, who died June 27, 1880, devising this property to her husband, Artemas Gale, the plaintiff. This will was probated July 29, 1880, and filed for record July 5, 1883.

This suit was begun September 27, 1882. During its pendency, and on August 1, 1883, plaintiff Gale conveyed the lands in question to Helen G. McKennan by warranty deed for a valuable consideration, and on August 14, 1883, Helen G. McKennan conveyed an undivided half of the same to Melvin Griggsby.

The defendants' chain of title was as follows:

1. Warranty deed, Margaret Frazier to Oscar Hodgdon, dated May 29, 1872, for a consideration of $500. This deed chanrobles.com-red

Page 144 U. S. 511

was executed eighteen months after the deed to Louisa E. Gale. The court found that there was no other evidence, offered or submitted, tending to prove that any consideration was paid for such transfer or that the grantee, Hodgdon, did not then have actual notice or knowledge of the prior conveyance of Frazier to Gale, or that at the time Hodgdon was an innocent purchaser of the said property for a valuable consideration, without notice of the outstanding title in Louisa E. Gale.

2. Quitclaim deed by Oscar Hodgdon to defendant Byron M. Smith, executed June 20, 1874, the property being then in the actual and open possession of Louisa E. Gale.

3. Warranty deed, Margaret Frazier to Daniel G. Shillock and to Samuel A. Bentley, executed May 14, 1873. Subsequent to this conveyance, Shillock died, leaving a widow and heirs who, with Smith and Bentley, were made defendants.

It was claimed by defendants that the power of attorney from Frazier to Grant was obtained for the purpose of enabling the latter to locate land scrip owned by Frazier, and selling the land so located; that it was not intended to be used in conveying the land in question; that such use of it was fraudulent, and that Gale and his wife, well knowing these facts, procured Grant to make a deed, under and by virtue of said power of attorney to Louisa E. Gale. In this connection, however, the court found that Mrs. Gale was an innocent purchaser for a valuable consideration of the property in controversy; that if said power of attorney was procured from Margaret Frazier by fraud, and if the conveyance by Grant to Gale was fraudulently made, the said Louisa E. Gale and Artemas Gale were neither of them cognizant of such facts, and had no knowledge or notice whatever of such alleged fraud, and that Helen G. McKennan was also an innocent purchaser for valuable consideration of said property, and, at the time of the conveyance from Artemas Gale to her, had no notice or knowledge whatever of the pendency of this action or of the ground upon which Smith claimed an interest in the property.

Upon the day before the case was tried, Margaret Frazier chanrobles.com-red

Page 144 U. S. 512

filed a complaint, denying Gale's possession of the lands, averring the title to be in Smith or in herself for the benefit of Smith, and asked leave of the court to intervene and be made a defendant. This was refused, and the court found as conclusions of law from the facts above stated that Artemas Gale, the plaintiff, was at the time of the commencement of the action, the owner in fee; that McKennan and Griggsby were at the time of the trial the owners each of an undivided half in fee-simple, and that the warranty deed from Frazier to Hodgdon, and the quitclaim deed from Hodgdon to Smith, and the warranty deed of Frazier to Shillock and Bentley, were all of them void, and conveyed no title, right, interest, or estate in the said property, and upon these conclusions a decree was entered confirming the title in McKennan and Griggsby. From this decree of the district court both Smith and Frazier appealed to the supreme court of the territory, by which it was affirmed, 30 N.W. 138; 29 N.W. 661, and Smith thereupon appealed to this Court. Smith having died subsequent to the appeal, the case is now prosecuted by his executrix. chanrobles.com-red

Page 144 U. S. 517