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Argument for Appellant.

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 Grigsby 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 quit-claim 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 Grigsby. 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. Rep. 138; 29 N. W. Rep. 661,) and Smith thereupon appealed to this court. Smith having died subsequent to the appeal, the case is now prosecuted by his executrix.

Mr. Enoch Totten and Mr. Franklin H. Mackey for appellant.

I. In Dakota the right to have a party brought in in order that there may be a complete determination of the controversy is not a discretionary matter with the court. The court "must cause them to be brought in," and the denial of this right is error, whether the error takes the form of sustaining a demurrer to the complaint of intervention, or in striking the complaint from the files, or in refusing leave to file the complaint. Coburn v. Smart, 53 California, 742; Coffey v. Greenfield, 55 California, 382. Mrs. Frazier should have been allowed to intervene, as she is the grantor with warranty for a valuable consideration, of a deed which is attacked as null and void, and without her there can be no complete determination of the controversy. Camp v. McGillicuddy, 10 Iowa, 201.

The New York Code is similar in this respect to that of

Argument for Appellant.

Dakota, and in that State it is held that whenever it appears that a complete determination of the controversy cannot be had without the presence of other parties, the code makes it the imperative duty of the court to cause the proper parties to be brought in. Shaver v. Brainard, 29 Barb. 25. Abundant authority will be found to support this proposition in cases decided under the rule of equity, that in suits by third parties to set aside deeds as void for fraud as against plaintiffs the grantors in the deeds to be declared void must be made parties. Lawrence v. Bank of the Republic, 35 N. Y. 320; Beardsley Scythe Co. v. Foster, 36 N. Y. 561; Lovejoy v. Irelan, 17 Maryland, 525; S. C. 79 Am. Dec. 667.

Even in States where the provisions concerning new parties are not so liberal, the courts will allow another party to be brought into the case when his presence is necessary to enable the defendant to set up an equitable defence. Hiner v. Newton, 30 Wisconsin, 640.

II. The third and fourth assignments of error go to the ruling of the court in admitting in evidence the power of attorney from Margaret Frazier to Wm. H. Grant and the deed of Grant executed in pursuance of said power, without proof of their execution, on the ground that their execution was admitted by the defendant's pleadings.

In the ninth paragraph the defendant sets up a separate and independent defence to the plaintiffs' cause of action, and there we must look for the admissions, if there are any, of the execution of these instruments.

But that defence, being distinct from and independent of all others in the action, and entire in itself, any admission of the power of attorney or of the deed which might find its way into this defence, would not obviate the necessity of proving execution of the deeds when they are denied and put in issue by another defence. Miller v. Chandler, 59 California, 540; Nudd v. Thompson, 34 California, 39; Troy & Rutland Railroad v. Kerr, 17 Barb. 581. The averments of this separate defence are not admissions of anything stated in the complaint; they are the averments of new matter. If, notwithstanding the authorities just above cited, they are to be taken

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Argument for Appellant.

as admissions at all, then they are to be taken as an entirety. Mutual Ins. Co. v. Newton, 22 Wall. 32; Insurance Co. v. Higginbotham, 95 U. S. 380; Craig v. Tappin, 2 Sandf. Ch. 78.

III. The ninth assignment of error is to the court's finding that the power of attorney from Frazier to Grant was duly recorded. As the consideration of this assignment involves the same question which must be considered with regard to the eleventh assignment of error, which is to the finding of the court that the deed of Grant to Gale was duly recorded, we will consider them together. If defendant has not admitted the execution of these instruments and they are not duly recorded, then they were improperly admitted in evidence without proof of execution, and plaintiffs' whole case fails. Or if they were not duly recorded, and the instruments constituting defendant's chain of title were duly recorded, and defendant was a bona fide purchaser for value, then also plaintiffs' case fails.

The Dakota Code of Civil Procedure, sec. 493, provides that "every instrument in writing which is acknowledged or proved, and duly recorded, is admissible in evidence without further proof." Plaintiffs introduced in evidence, over defendant's objection, certificates of register of deeds on the back of the instruments, purporting to certify that they had been duly recorded. These were not admissible. No statute of this Territory, prior to the present revised codes (1877), requires registers of deeds to make any endorsement whatever on instruments recorded by them; therefore, the certificate not having been made in the performance of a duty enjoined by law upon the officer, is not evidence of the facts recited in it. Board of Water Commissioners v. Lansing, 45 N. Y. 19; Puryear v. Beard, 14 Alabama, 121.

Neither the instruments themselves nor the record of them disclose the certificate of magistracy and authenticity required at the time of their execution and attempted record by section 518 of the Civil Code of 1865-66; and the record does not show that the certificate of acknowledgment attached to either instrument was under the official seal of the officer whose name is subscribed to it. The record of a deed is not con

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Argument for Appellant.

structive notice of its existence or contents, unless all the prerequisites prescribed by law in respect to its registration are observed. Pringle v. Dunn, 37 Wisconsin, 449; Buell v.

Irwin, 24 Michigan, 145.

It is the deed "as spread upon the record" which imports constructive notice, and subsequent purchasers are chargeable with notice only of what the record shows, and if a deed be properly executed, but defectively recorded, as to subsequent purchasers the defective record is not notice and cannot be aided by the production of the original instrument. Girardin v. Lampe, 58 Wisconsin, 267; Taylor v. Harrison, 47 Texas, 454; Wood v. Cochrane, 39 Vermont, 544; Potter v. Dooley, 55 Vermont, 512; Frost v. Beekman, 1 Johns. Ch. 288; Beekman v. Frost, 18 Johns. 544; S. C. 9 Am. Dec. 246; Pringle v. Dunn, 37 Wisconsin, 449; Chamberlain v. Bell, 7 California, 294; S. C. 68 Am. Dec. 260; Terrell v. Andrew County, 44 Missouri, 309; Parret v. Shawbhut, 5 Minnesota, 323; S. C. 80 Am. Dec. 424.

The certificate made by statute a prerequisite to recording was not attached either to Gale's deed or to the power of attorney. Hence there was no authority for the record of these instruments at the time they were spread upon the record. Nor was this defect cured by the curative act of January 6, 1873, inasmuch as it does not appear of record that the official seals of the notaries public who took the acknowledgments were impressed upon the instruments. From and after that date an acknowledgment certified by a notary under his seal entitled a deed to record without additional certificate, and a record showing a deed acknowledged before a notary and certified by him under his official seal was cured and made effective from that date though it lacked the additional certificate; but if the notary's seal was wanting from the instrument to be recorded in the one case, or from the record to be cured in the other, the additional certificate was as necessary after that act as before. Gale's deed and power of attorney became entitled to record at the time of the passage of this act. He might at that time have caused these instruments to be duly recorded, but he did not. The former attempted

Counsel for Appellees.

record, however, was not cured, because it did not appear of record that the instruments bore notarial seals, and the same act which cured certain defective certificates limited that cure to cases when the notary's seal appeared.

IV. The 13th and 14th assignments of error go to the question whether Louisa E. Gale was in actual, open, continuous and uninterrupted possession of the property at the time of the making of the deeds of Frazier to Hodgdon and of Hodgdon to Smith.

There was no such possession by Gale as would have been constructive notice to Hodgdon. To affect him with such notice, there must have been an actual, open, notorious and exclusive occupancy of the land.

This occupancy and possession must have been unequivocal, not ambiguous or liable to be misunderstood. McMechan v. Griffing, 3 Pick. 149; S. C. 15 Am. Dec. 198; Brown v. Volkening, 64 N. Y. 76; Page v. Waring, 76 N. Y. 463; Thompson v. Burhous, 79 N. Y. 93.

The possession must be such as to arrest attention before it will even put purchasers on inquiry. Loughridge v. Bowland, 52 Mississippi, 546.

V. The 15th assignment is to the finding that Louisa E. Gale was an innocent purchaser for a valuable consideration. We submit that this finding is not sustained by the evidence.

VI. The last assignment of error is to the finding that Helen G. McKennan and her grantor, Melvin Grigsby, were innocent purchasers without notice of the pending of this action.

Mrs. McKennan was not a purchaser in good faith. She had notice of facts sufficient to put a prudent person upon inquiry. When a person is put upon inquiry he must examine the records or question the grantor or third persons, and if he refrains he is chargeable with whatever he might have learned from such examination and inquiry. Sergeant v. Ingersoll, 7 Penn. St. 340. Inadequacy of price puts one upon inquiry. Wade on Notice, 13. The relationship of the parties is also to be considered. 2 Pom. Eq. Jur. 29; Wade on Notice, 14.

Mr. C. K. Davis for appellees. Mr. Melvin Grigsby was with him on the brief.

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