Sherman v. Sherman

122 N.W. 439, 23 S.D. 486, 1909 S.D. LEXIS 145

Opinions

McCOY, J.

This case comes to this court on appeal from Minnehaha county circuit court. There is no dispute about the facts. Both sides rely upon the findings of fact as found by the trial court. From such findings it appears: That the plaintiffs Abbie Phillips Sherman, Alice Phillips Wilcox, Flora C. Phillips, Charles A. Phillips, Rossie C. Phillips, and Josie L. Phillips were minors, domiciled in the county of Minnehaha in September, 4887, and that Hattie C. Phillips had been duly appointed the guardian of said minors, and that the said minors were at that time tenants in common with Annie C. Phillips of certain real estate situated in the city of Sioux Falls, and consisting of 5.86 acres, and being about 719 feet long and about 342 feet wide, and being a little in excess of two ordinary city blocks. That in September, 1887, the Cherokee & Dakota Railway Company was a corporation duly organized and authorized to construct and operate and maintain a railway within the territory of Dakota, and that in September, 1887, the said railway company was engaged in the construction of a line of railroad from Cherokee, Iowa, to Sioux Falls, and that said Cherokee & Dakota Railway Company, being desirous of taking, holding, and appropriating the said parcel of land for station 'grounds, tracks, side tracks, arid switches, entered into an agreement with the plaintiffs to pay to plaintiffs the sum of $6,850, the then market value of the fee title of said parcel of land, and did then and by virtue of such agreement pay to plaintiffs the said sum of money, in full payment for all damages and claims whatsoever by reason of the taking, holding, and appropriating of said land by said railway company. That the said contract and agreement between plaintiffs and said Cherokee & Dakota Railway Company was evidenced lay the following instrument in writing: “Whereas, the Cherokee & Dakota Railway Company deem it necessary to take, hold, and appropriate for the purpose of station grounds, tracks, side tracks switches, and the location, construction and convenient use of its railroad but for no other purpose, the following described real estate, the property of Annie C. Phillips, Abbie C. Phillips, Alice C. Phillips, Flora C. Phillips, Charles A. Phillips, Rossie C. Phillips and Josie R. Phillips (being the two blocks above mentioned), and whereas, on the 18th day of October 1883, the undersigned-Hattie C. Phillips, was, by the probate court of Minnehaha county, aforesaid, appointed the guardian 'of the persons and estate of all said minors and still is such guardian, and, whereas, said Annie C. Phillips, in her own right, and said Hattie C. Phillips, as such guardian of all said above-named minors, with the approval of the judge of the probate court of said county, which approval is appended to and made apart of this instrument, agreed with said railroad company upon the sum of $6,850 in full payment for all damages and claims whatsoever, in favor of said Annie C. Phillips. * * * and every of them by reason of the taking of said real property, and have settled with said railroad company for '.all said damages and claims for said sum of money, and whereas, said railroad company has, with authority, consent, and concurrence of said Annie C. Phillips, and with the approval of said judge of nrobate court, paid to said Hattie C. Phillips, as such guardian, for and on behalf of said Annie C. Phillips, and said minors, the said sum of money, and said Hattie C. Phillips as such guardian has accepted and received the same in full settlement of said damages and claims. Now this indenture, made this 26th day of Sept., 1887, between said Annie C. Phillips, in her own right, and paid Annie C. Phil-' lips, * * * each and all by said Hattie C. Phillips, their guardian, as aforesaid, parties of the first part, and the said Cherokee & Dakota Ry. Co., party of the second part, witnesseth: That the said parties of the first part, in consideration of 'the sum of $6,850, to them in hand paid, the receipt of which is hereby acknowledged, do hereby discharge and forever release the said Cherokee & D. Ry. Co., from all damages and claims whatsoever, on account of the taking, holding, and appropriation of said above-described land for the purpose .aforesaid, but no other. In witness whereof, the said- Annie C. Phillips, in her own right, and the said Hattie C. Phillips, as such guardian as aforesaid, have hereunto set their hands and seals the day and year last above written. Annie C. Phillips. [Seal.] Hattie C. Phillips, Guardian. TSeal.]” And this instrument was duly acknowledged and thereafter'duly recorded on December 12, 1887, and has appended and annexed thereto the approval of the said judge of probate court. 'That thereafter, during the year i88g, the said Cherokee & Dakota Railway Company conveyed all its right, title, and interest to the said premises to the Dubuque & Sioux City Railway Company, and that thereafter, about February, 1891, the said Dubuque & Sioux City Railway Company leased said premises to the Illinois Central Railroad Company, and that thereafter, in May, 1893, the Illinois Central Railway Company leased a part of said premises to defendants, who thereupon erected thereon .a machinery warehouse used in and about the private business of defendants, and that defendants ever since Rave and now still occupy said portion of said premises with their said warehouse. That none of plaintiffs have ’ever occupied said premises since September, 1887, since the making of said instrument. The plaintiffs brought this action to quiet title and to regain possession of the portion of said premises occupied by defendants with said warehouse, and to recover rents and profits. Judgment was entered in favor of defendants dismissing plaintiffs’ complaint upon the merits, from which judgment plaintiffs have appealed, and contend that such judgment is not supported by the findings of fact and is against law.

The vital question is: What was the effect of the said written instrument under the laws of the territory of Dakota in force at the time of its execution? Did said instrument pass an unconditional fee title or an easement only to the said Cherokee & Dakota Railway Company? Section 488, Rev. Civ. Code, was formerly section 2980, Comp. Raws, and was in force during the year 1887. This section, ,among other things, provided that every railroad corporation authorized to construct, operate, or maintain a railroad within this territory shall have power “to acquire under the provisions of this act or by purchase, all such real estate and other property as may be necessary for the construction, maintenance and operation of its railroad, and the station, depot grounds, and other accommodations reasonably necessary to accomplish the object of its incorporation; to hold and use the same, to lease or otherwise dispose of any part or parcel thereof, or sell the same when not required for railroad uses, and no longer necessary to its' use.” Section 2999, Comp. Laws (section 507, Rev. Civ. Code), also provided as follows: “Any railroad corporation may purchase and use real property for a price to ’be agreed upon with the owners thereof; or the. damages to be paid by such corporation for any real property taken as aforesaid when not agreed upon, shall be ascertained and determined by the circuit court * * * in conformity with the provisions of the Code of Civil Procedure.” Section 3002, Comp. Laws (section 508, Rev. Civ. Code), also provided: “Whenever any railroad corporation shall take any real property as aforesaid, of any minor, * * * the guardian of such minor may agree and settle with said corporation for all damages or claims by reason of the taking of such real property, and may give valid releases and discharges therefor upon the approval thereof by the judge of the probate court.” Under these sections of the Compiled Raws in force in 1887 a railway corporation might acquire real estate by two methods — by condemnation or by purchase — and the provisions of section 3002 were applicable to either method. It must be remembered at all times while considering this case that the Cherokee & Da kota Railway Company did not acquire the land in question by virtue of condemnation proceedings against the will and consent of the grantors, but by a contract of purchase, for a fixed price, which was the full market value of the fee, and which contract was entered into by plaintiffs, who were the grantors, freely and voluntarily; but, on account of the fact that some of plaintiffs at the time of the transaction were minors, the approval of the judge of probate became necessary in order to satisfv the provisions of section 3002. Neither do appellants contend that said railway company acquired-said land by condemnation, or the exercise of eminent domain. In the reply brief appellants state: “Since in this case the voluntary grant was made no condemnation could have taken place, and consequently we are not interested in determining what title would have passed by condemnation proceedings.” The transaction was a grant based on contract of the parties, and from the language used in the instrument it was evidently the intention to transfer said land to said railway company under the power conferred on said railway corporation to purchase, take, hold, lease, and dispose o-f the same under the provisions of section 2980, Comp. Laws. That being the intention of the parties, then the instrument sould be construed in the light of these provisions of the law, as, under such circumstances, the provisions of this law would become a part of the contract. The .power conferred on the railway-corporation by section 2980 is to purchase, take, hold, lease, dispose of, and sell the whole or any part of the lands thus acquired when no longer required for railway uses, thus giving such railway corporation full and absolute power of disposition over the property purchased under the provisions of this statute. Sections _ 2999 and 3002 provide the method or means for carrying out and making effective the power to purchase, take, hold, lease, etc., conferred by section 2980. Referring to the language of section 3002, “When any railroad corporation shall take any real property as .aforesaid (that is, by purchase or condemnation) the guardian * * * may agree and settle with said railway corporation for all damages or claims by reason of the taking * * * and may give valid releases and discharges therefor, upon the approval of the judge of the probate court,” thus showing that the framers of this law had in mind the very form of instrument here used as being the proper font, of instrument for transferring lands acquired by purchase under section 2980. It seems to be quite evident that the legislative mind intended that a fee title should pass to the railway company, and that there is no way of escaping this conclusion. It is plainly apparent from the reading of the statute that the title to be acquired under these provisions is co-extensive and correlative with the power of holding and disposition of the lands so acquired. The plain intent of the legislative assembly was that a complete titie should be vested in the company. The very wording and form of this grant in question are such as to make it clear that plaintiffs intended to convey and the company to ácquire the full title contemplated by this statute — a fee-simple title.' Some reference has been made on argument of counsel to the Union Pacific Railway act (Act July 2, 1864, c. 216, 13 Stat. 356), and the provisions thereof, and it is assumed, possibly correctly, that the territorial Legislature followed that act, and that under the Union Pacific Act it was provided that the guardian should have full power to make and execute a conveyance which would “vest the title thereto in said company,” and that said provision has been omitted from our statute, and it is contended from this that the legislative assembly did not intend that title should pass to the railway company. If that contention were correct, the Legislature would have also omitted, subdivision .3 of section 2980. But, when the Legislature had already provided that the guardian might release and discharge all claims by reason of the appropriation,'the effect was to pass title to the company just as effectually as if the language of the Union Pacific act had been .all used. Further use of the language of the Union Pacific act would have been unnecessary verbiage. Under subdivision 3 of section 2980 the Legislature intended that a fee title should pass, and the parties to this instrument acted and intended to convey title with that provision of the statute in view.

Let us' next consider the operative effect of the instrument in question. The granting portion of this instrument is as follows: “Wit-nesseth, that the said parties of the first part in consideration of teh sum of $6,850, to them in hand paid, the receipt of which is hereby acknowledged, do hereby discharge and forever release the said Cherokee & D. Ry. Co., from all damages and claims whatsoever, on account of the taking, holding, and appropriating of the above-described land for the purpose aforesaid, but no other.” The specific operative words of this instrument are, “discharge and forever release from all claims whatsoever.” The operative language here used is the exact equivalent of the common-law quitclaim deed. The operative words of the common-law quit-claim were, “remise, release and forever quitclaim.” 2 Bouvier, 808; 23 Am. & Eng. Ency. 588; Jones on Law of Real Property Conveyancing, 209, 311. While the common-law quitclaim was not considered a conveyance in England, in the United States by statute and common usage it is recognized as one of the modes of real estate conveyance for transferring title, and has been so recognized in this state. Parker v. Randolph, 5 S. D. 549, 59 N. W. 722, 29 L. R. A. 33. It will be noticed that the operative words of this instrument, “discharge and forever release,” not only from all damages, but also from “all claims whatsoever” by reason of the said talcing, holding and appropriation. If the word “damages” only had been used in this instrument, then it possibly would not have transferred any title at all, but.it “discharges and .forever releases from all claims .whatsoever.” The word “claim” is a broad and comprehensive term, and includes title and ownership to real property, when used in relation thereto, 1 Bouvier, 332; 6 Am. & Eng. Ency. 97; 7 Cyc. 180; United States v. Spaulding, 3 Dak. 93, 13 N. W. 357, 538. The words, “remise,” “release” and “quitclaim” each mean “to discharge.” The word .“quit” is a contraction of the word “acquit,” meaning “to discharge.” Hence by the.use of the words “discharge and forever release from all claims whatsoever” had the same operative effect in the instrument in question as if used in a formal quitclaim deed, and served to' discharge and release the said railway corporation from all claims whatsoever of ownership and title to the said lands, and thus constituting the transaction a grant or transfer of real property. It is generally held that a deed of release and quitclaim is as effectual for the purpose of transferring title to’ land as the most skillfully drawn warranty deed. Brown v. Oil Co., 97 Ill. 214; Parker v. Randolph, 5 S. D. 549, 59 N. W. 722, 29 L. R. A. 33; Jones on Real Property Conveyancing, 828. If the words “discharge and forever release from all claims whatsoever,” used and employed in the instrument in question, operated to create- a grant and transfer of title, then the same was a broad and comprehensive grant, regardless of the verbiage used, and as thoroughly and completely divested the grantors of their title to said land as would have been accomplished by a deed of warranty, with full covenant of title.

. Under section 2980, Comp. Raws, the said railway company was granted power to acquire said land by purchase, with full-power of disposition, viz., to hold, lease, dispose of, and sell the whole or any part thereof. Section 2854, Comp. Laws (section 361, Rev. Civ. Code), was in force in 1887, and provides: “In all cases where an absolute poyver of disposition is given not accompanied by a trust, and no remainder is limited on the estate of the holder of the power, he is entitled to an absolute fee.” Section 3254, Comp. Laws (section 947, Rev. Civ. Code), provides that: “A fee-simple title is presumed to be intended to pass by a grant of real property, .unless it appears from 'the grant that a less.er estate was intended.” Section 3238, Comp. Laws (section 931, Rev. Civ. Code), provides: “A grant is to be interpreted in favor of the grantee, except that a reservation in a grant, and every grant made by a public officer, as such, is to be interpreted in favor of the grantor.” The terms “trust,” “remainder,” and “reservation” all have welRdefmed meanings in conveyancing; and no trust, remainder, or reservation are included or mentioned in the instrument in question. The use of the words “for railroad purposes only” will not create a reservation. There was no reservation of any right to reenter in case the said corporation ceased to use the land for the purposes specified in the instrument. There is no reservation of anything in this instrument.

If the Cherokee & Dakota Railway Company acquired a fee title under the instrument in question, what effect, then, were the words therein, “for the use of its railroad, but for no other purpose,” and “for the purpose aforesaid, but no other”? The decision of this court in Huron v. Wilcox, 17 S. D. 625, 98 N. W. 88, forecloses that question. It was held in that case that the transaction was bargain and sale under section 1299, Rev. Civ. Code. In this case the transaction was bargain and sale, but the transfer of title was accomplished under the powers and provisions of specific law relating to transfers to railway corporations. In that case it was further held that the city of Huron was empowered by law to purchase, hold, lease, transfer, and convey real property (and being the same power conferred by-law upon the railway corporation in question), and that the language in the deed, “for city hall purposes only,” was not sufficient to constitute a condition subsequent, nor a restriction or reservation, upon the estate granted, that would defeat the title granted, upon a showing that the property was not being used for city hall purposes. In rendering the decision in Huron v. Wilcox the court said: “A deed will not be construed to create a conditional estate unless the language used unequivocally indicates an intention on the part of the grantor to that effect. The right is not given to the grantor to enter and resume possession in case the premises are not used for city hall purposes, and the expression appears to be merely a declaration of the purpose for which the purchase was made. Without express words relating to forfeiture or re-entry, no authority has been found going to the extent of holding a conveyance conditional and subject to be divested that was executed for a valuable consideration with a recital that the land conveyed shall not be used for any other purpose than': that specified.” To the -same effect is Packard v. Ames, 16 Gray (Mass.) 327; Vail v. Long I, Ry., 106 N. Y. 283, 12 N. E. 607; Curtis v. Board of Ed., 43 Kan. 138, 23 Pac. 98; Greene v. O’Connor, 18 R. I. 56, 25 Atl. 692, 19 L. R. A. 262.

■There are many cases holding that recitals in grants limiting-the use of the property will constitute an easement. An easerheht' is created by a conveyance of a right of way to a railroad company for a nominal consideration, where the grant is expressed' to-be on condition that the land shall be used for railroad purposes: only, and that, if it shall cease to be so used, it shall revert to the grantor; and, where land was deeded for use as an alley, but with, the further provision that the grant should -be null and void if it ceased to be used for that purpose, it was held an easement. Jones on Real Property Conveyancing, 653. In all this class of cases there were sufficient words used in the granting instrument itself to create the condition. No such words as “if it shall cease to be so used it shall revert to the grantor,” or “if it shall cease to be so used it shall be null and void,” are used in the instrument in question; and it is very apparent why authorities of this class are not applicable. There is another class of cases where the instrument itself expressly recites that only an easement or a right of way is intended to be granted, but that is not this case either. There is still another class of cases holding that where the property is granted for a specific purpose, and where the language used in the granting instrument would not be sufficient to create a conditional estate, that it will be construed to grant an easement. So far as we are able to find, there are but two of these cases. Robinson v. Missisquoi R. Co., 59 Vt. 426, 10 Atl. 522, and Flaten v. Moorhead, 51 Minn. 518, 53 N. W. 807, 19 L. R. A. 195. In the Vermont Case the instrument recited “for the use of a plank road.” The principal reasons assigned for holding the grant an easement were that the land conveyed was a strip four rods wide through an entire farm, and that the only use to which it could be.put was a right of way, and that the consideration was. gros'sly inadequate for a grant in fee. .In the -Minnesota case the language of the granting instrument was “provided that said property shall be forever held for a city park,” and in construing that grant to be an easement the court, by Mitchell, J., said: “Talcing into consideration that the grantee was a municipality’ and that the consideration was $i, we conclude that an absolute fee did not pass, but only an easement.” In the case of Soukup v. Topka, 54 Minn. 66, 55 N. W. 824, the Minnesota court later, by the same justice, Mitchell, in considering a grant, containing the words “for a road to and from the above-described premises,” in rendering the decision and after referring to the decisions in the case of Robinson v. Missis-quoi R. Co. and Rlaten v. Moorhead, said: “In the present case all these extrinsic facts are absent. The deed convejr-s the land itself. with an attempted restriction upon its use-, which is entirely consistent with the passing of the fee. There is nothing in this deed reserving to the grantor any use of or dominion over the land, and the rule is, if the grant be of the use and dominion over the land, it carries the land itself.” In this connection is also section 195, Rev. Civ. Code, which provides: “The ownership of property-is absolute when a single person has absolute dominion over it, and may u-s-e it or dispose of it according to- his pleasure subject only to general laws.” If, under sections 2980, 3002, Comp. Laws, tlie said Cherokee & Dakota Railway Company acquired the said land by purchase with full power to use or lease, hold, dispose of, or sell as it saw fit, then the ownership of the land itself passed by the' instrument in question, and not an easement. There is nothing in the instrument in question reserving in the grantors any use of or dominion over the land, nor any provision whereby the grantors might re-enter or resume possession in case it was not used for railway purposes. The use of the words- therein, “for railway purposes-, and no -other,” is precisely the same as used in many of the cases above cited, which hold the language not -sufficient to- create a restriction or reservation, but simply amounted to an attempt to restrict the use. The land granted is about two city blocks in extent, indicating station and depot grounds (rather than right of way for tracks), upon which valuable terminal structures might some time be erected, and the full market value of the fee was paid as consideration. All the attending circumstances indi cate a contract of bargain and sale, and an intention to transfer the fee title, and not an easement-.

Rinding no error in the record, the judgment of the circuit court should be affirmed.