Taylor v. Brown

40 N.W. 525, 5 Dakota 335, 1888 Dakota LEXIS 31

• Court: Supreme Court Of The Territory Of Dakota
• Decided: October 10, 1888
• Status: Published

Opinion

Thomas, J.

This action was brought by the respondents against the appellants and others, in the district court of Moody county, for the purpose of removing' alleged clouds upon their titles to certain real estate described in the complaint, by reason of alleged deeds of conveyance of the same lands to the appellants, which they allege to be illegal and void, and ask that they be so adjudged by the court.

The appellants, Alfred Brown and Timothy Young, were the only defendants served with process, and they served and filed separate answers, in which they set up their said titles to said real estate; and by way of counter-claims prayed that their titles be quieted, and that respondents’ pretended claim to said lands be adjudged null and void.

The district court, after hearing the case, rendered j udgment in favor of respondents. Appellants each moved the court for a new trial, which was refused, and they separately appeal to this court.

The facts as they appear from the findings of the district court, are substantially as follows: On the 15th day of June, 1880, one Thomas K. West, a Santee Sioux Indian became the owner of the lands described in the pleadings by a patent from the United, States. The said West, being an Indian, received his title under the provisions of the statute of the United States giving certain Indians who should abandon their tribal relations the right to enter and hold lands under the homestead law.

The statute above referred to contains the following proviso:

“ Provided, however, that the title to lands acquired by any Indian by virtue hereof shall not be subject to alienation or incum-brance, either by voluntary conveyance, or the judgment, decree, or order of any court, and shall be and remain inalienable for the period of five years from the day of the date of the patent therefor.” 18 U. S. St. at Large, 420.

The appellants herein received deeds of conveyance from said West for three 40-acre tracts of said land some time in the year 1881. Appellant Timothy Young took a new deed from said West for the entire 160 acres, on the 15th day of June, 1885. On the 17th day of June, 1885, said West also conveyed by deed said entire tract of land to' one Thayer, who on the 19th day of the same month conveyed it to the respondents. These deeds were all regular as to form, and were duly recorded in the order of their respective dates.

The main question, therefore, presented in this case, is, who is the owner of the lands in controversy ? The appellants appealed separately from the judgment of the district court, which made separate findings as to them, both of whom assign a long and numerous list of alleged errors, the most of which we do not deem it necessary to consider in detail, as there are only two or three points seriously relied on by appellants to reverse the judgment of the district court.

It is contended on behalf of both the appellants that the district court erred in holding that their deeds from West, received by them in the year 1881, were void, for the reasons:

First, the patent to said West from the United States was absolute on its face, and conveyed to him a title in fee.

Second, the court erred in deciding that the deeds to Thayer, and from him to respondents, were valid, because of the adverse possession of Brown as against them. The question of the adverse possession of Brown as against Young is not raised.

In case this court should sustain the views of the district court on these points, appellant Timothy Young insists that the • district court erred as a matter of law in holding that his deed of June 15, 1885, was executed within the five years from the date of the patent, and for that reason void.

It will be observed that the appellants, while taking separate appeals, are really hunting in couples, so far as this case is concerned ; and therefore they make no point as to the rights of each other, but are content if either shall succeed in obtaining judgment for the lands. Brown does not controvert the position of Young, but says, through his counsel, that he shall be content with a conclusion in favor of said Young’s position, and consents in that event that judgment may be entered as prayed for by said Young.

We shall first consider the two propositions, — one of which involves the validity of deeds to appellants of date 1881; the other, the validity of deeds to respondents’ grantor of date the 17th of June, 1885, as affected by the adverse possession of Brown.

The patent issued to West was in the usual form, and made no reference to the fact that he was an Indian, but was absolute on its face, and, so far as could be gathered from its contents, was a conveyance in fee, and, but for the inhibition of the statute heretofore quoted, there could be no question as to the regularity and validity of the deeds to appellants executed in 1881.

It is contended by counsel for appellants, and not without some force, that notwithstanding the limitations sought to be ingrafted on the patent by the statute, none of which were embraced or recited therein, the conveyances should be held to be good and valid, because purchasers were not bound to look dehors the terms of the patent, but had the right to rely upon its contents alone in order to discover the extent and scope of said West’s title. This proposition, as before intimated, is not without some show of reason, and, if it were a new and original question, we should feel some hesitancy in holding otherwise; but, upon investigation, we find that the courts have frequently had occasion to pass upon this question, and they uniformly, so far as we have been able to discover, hold that statutes similar to the one. sought to be invoked herein prevail over recitals of the deed or patent.

It is true it may seem to be a harsh rule that a party about to purchase lands from another cannot rely upon the title of the grantor as disclosed by the record, and perhaps it would have been safer and less harmful to all parties had the land department seen proper to recite the limitations of the statute in the patent; but the fact that it was not done does not, in our opinion, relieve them from the effect of the law, which they are presumed to know. This law was a general one in regard to Indians in the United States, concerning their power of holding lands, and the parties purchasing of them were chargeable with notice of said law. It is the same as' though the statute had said that no contracts made with the Indians residing in the United States in relation to the sale of lands, without the consent of the president or the secretary of the interior, should be valid; yet we apprehend that it will not be contended that a contract with the Indians not in compliance with such a statute could be enforced.

We do not treat the statute altogether as an attempt to limit the title of the Indian to the lands, but rather as placing upon him a disability which begins with the date of the patent, and continues for the period of five years thereafter. Hence, one dealing with the Indians in the purchase of lands must not only see that he has a good and perfect title of record, but must also see that he is not laboring under any disability which prevents him from making a good and valid deed.

We therefore conclude that it was not within the power of the Indian Thomas K. West to alienate the land in the year 1881, at which time the deeds to appellants were executed, and they therefore obtained no title by reason of these pretended conveyances.

This view of the case is upheld and discussed in the cases of Jackson v. Goodell, 20 Johns. 188, 693; Lee v. Glover, 8 Cow. 188; and St. Regis Indians v. Drum, 19 Johns. 127.

All of these cases passed upon similar questions to the one involved in the construction of the statute under consideration in the case at bar, and involved the power of the Indians residing in the state of New York, who held patents from the people of said state to certain lands, which upon their face purported to convey said lands in fee; yet they all hold unequivocally— including so respectable authority as the learned and renowned Chancellor Kent — that the laws of the state which provided, in substance, that no Indian residing within the state can make any contract concerning the sale of lands within the state, or otherwise dispose of any such lands, or any interest therein, without the authority or consent of the legislature, must prevail over the recital of the patent, and hold that contracts made by these Indians for the sale of their lands not in compliance with the terms of the statute were null and void; and as these cases, so far as we have been able to discover, have not been modified or overruled by any of the more modern cases, we shall treat them as announcing the law on the subject.

We shall next consider the effect of the adverse possession of Brown upon the validity of the deed to Thayer, and of his grantees, the respondents, which were executed on the 17th and 19th of June, 1885, after the disability of the Indian had ceased to exist.

Adverse possession of land, in order to defeat or avoid a deed made subsequently to another, must be in good faith and under color of title. But can one set up color of title under a deed of conveyance which is absolutely null and void? It is clear that it cannot be done where the possession is under a deed obtained by fraud, and it seems to us equally clear that a void deed cannot initiate or be the foundation of an adverse possession that will defeat a subsequent conveyance of the land.

In the case at bar the appellant Brown came into the possession of the land under a deed that its owner had no power to make, and, as the findings of the district court show, he knew-his grantor was an Indian at the time of the transaction; and therefore he is to be held to have known, at least in legal effect, of the disability resting on his grantor at the time of the pretended conveyance, for all persons are presumed to know the law. We cannot, therefore, say that he was in possession in good faith, under color of title. To hold otherwise would defeat the evident intention of the statute, and permit the appellant Brown, with the law staring him in the face, to initiate a species of deed and color of title which would in effect nullify the law, and defeat the protection sought to be thrown around this Indian by the government, and to abrogate the conditions upon •which the government parted with its title to the land.

The statute in question is a part of much similar législation on the part of the United States government since its foundation, which was enacted on the ground that the Indians were wards, and under the tutelage and care of the general government, and that such legislation was necessary to protect them in their property and rights against the superior skill and knowledge, stimulated to its utmost activity by the well-known greed and avarice, of the white man.

Hence, under all these circumstances, and the evident intension of those who enacted the statute, we are of the opinion that the deeds of 18S1 were null and void, and the adverse possession of appellant Brown by reason thereof was not in law in good ■faith, and under such color of title as could defeat or avoid a subsequent conveyance executed after the Indian had been relieved of his disability.

But assuming, for the sake of the argument, that we are wrong in the foregoing conclusions, and that the deed is not void, but voidable only, as in cases of infants, let us look at this aspect of the case, and see what result is reached. The law worked -a deprivation of the power of alienation on the part of the Indian for the period of five years, and is therefore somewhat analogous to the status of an infant with reference to a similar power.

As a rule, and especially in this territory, deeds of infants are ■voidable only; so that, if there is no disaffirmance by the infant -after he attains his majority, his deed is valid, and title passes. Civil Code, §§ 15,17; Hastings v. Dollarhide, 24 Cal. 195; Irvine v. Irvine, 9 Wall. 617. But the giving of another deed, within -a reasonable time after his disability ceases, is clearly a dis-.-affirmance of the deed given during his infancy. 24 Cal., supra.

Hence, as the law permits disaffirmance by a subsequent deed which, ex propria vigore, makes void the prior deed, therefore the ■subsequent deed, made after majority, is valid, notwithstanding section 681 of the Civil Code.

If this is not true, we have the anomaly of the law both permitting and forbidding, at one and the same time, the same thing, which is not only inconsistent, but absurd; for if the first, voidablé deed prevents the second disaffirming deed, then no. disaffirmance by an infant in this mode' is permitted, though the courts hold otherwise, and the Civil Code of this territory is. not contra.

In the case at bar the Indian Thomas K. West disaffirmed the-deeds of 1881 to Brown by the subsequent deeds made to Young and Thayer, within a day or two after his disability ceased; so-we must conclude, even in this aspect of the case, that the adverse possession of Brown was subject to the right of said West, to disaffirm his deed to Brown by subsequent deeds, and therefore the adverse possession of Brown could not defeat or avoid them.

We shall now consider what we deem the vital point in this-case, which is the question as to the effect and validity of the-deed of date the 15th of June, 1885, the fifth anniversary of the-date of the patent. It is contended by counsel for respondents, that the 15th of June, 1885, was within the period of limitation,, and the deed of that date to appellant Young gave him no title to the lands by reason of this fact; that, in the computation of time when an act is to be done, it is a well-settled rule that the-first day is to be excluded; and in apparent support of this-proposition cites numerous authorities.

It is clear, if this proposition is correct, the deed of that date is invalid; but we cannot agree with counsel for respondents, that the rule, as he states it, is well settled; but, on the contrary, the question whether the terminus a quo should be ex- • eluded or included is a vexed question, and has been for a “time-whereof the memory of man runneth not to the contrary,” and has harassed and perplexed courts and learned doctors of both the common and civil law from the earliest times down to the: present day. It has been very appropriately termed by a distinguished writer of the Roman law the controversia controversis~ sima.

It is also insisted in behalf of this contention of respondents that the day a quo should be excluded under the provisions of our Code of Civil Procedure, which provides in section 6 that “the time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last is a holiday, and then that is also excluded. But we apprehend this rule, as laid down in the Code of Civil Procedure, only establishes the rule as to matters of practice in this territory, and does not intend to fix the rule concerning matters of a general nature to which it has no relation, and therefore has no bearing on the question under consideration.

It seems, so far as we have been able to discover from quite an extensive rummage and examination of the authorities on the subject, that the courts of both this country and England have excluded and included the terminus a quo; doing the one or the other as the context and subject-matter seemed to indicate and justify.

In the case of Pugh v. Duke of Leeds, Cowp. 714, which seems the leading case in the English courts, and which has remained the proper exposition of this vexed question, and which involved the validity of a lease, and the power reserved in a marriage settlement to one Edwards to make leases, with many restrictions and qualifications; inter alia, the following: “That they were not to be in reversion, remainder, or expectancy,” — the question was whether the lease was in possession, and turned upon the question of excluding or including the day of the date of the deed.

The opinion in that case was delivered by that eminent jurist, Lord Mansfield, — of whom it can be truthfully said he always walked, as it were, upon the mountain ranges of thelaw, — in which he used the following language: “I will first consider it as supposing this a new question, and that there never had existed any litigation concerning it. In that light the whole will turn upon a point of construction of the particle ‘ from.’ The power requires no precise form to describe the commencement of the lease; the law, no technical form. All that is required is only-enough to show that it is a lease in possession, and not in reversion ; and therefore, if the words used are sufficient for that purpose, the lease will be a good and valid lease. In grammatical strictness, and in the nicest propriety of speech that the English language admits of, the sense of the word ‘ from ’ must always depend upon the context and subject-matter, whether it be construed exclusive or inclusive of the terminus a quo. While the gentlemen at the bar were arguing this case, a hundred instances and more occurred to me, both in verse and prose, where it is used both inclusively and exclusively. If the parties in the present case had added the word ‘ inclusive ’ or ‘ exclusive,’ the matter would have been very clear. If they had said ‘ from the day of the date, inclusive,’ the term would have commenced immediately. If they had said ‘ from the day of the date, exclusive,’ it would have commenced the next day. But let us see whether the context and subject-matter in this case do not show that the construction here should be inclusive as demonstratively as if the word * inclusive ’ had been added. This is a lease made under a power. The lease refers to the power, and the power requires that the lease should be a lease in possession. The validity of it depends upon its being in possession, and it is made as a provision for an only daughter. He must therefore have intended to make a good lease. The expression, then, compared with the circumstances, is as strong in this respect, of what his intention was, as if he had said, ‘ I mean it as a lease in possession,’ or' * I mean it shall be so construed.’ If it is so construed, the word ‘ from ’ must be inclusive.

“This construction is to support the deeds of the parties, and give effect to their intention, and to protect property. The other is a subtlety to overturn property, and defeat the intention of the parties, without answering one good end or purpose whatever.

“To conclude, the grounds of this opinion and judgment which I now deliver is that ‘ from ’ may in vulgar use, and even in the strictest propriety of language, mean either inclusive or exclusive ; that the parties necessarily understood and used it in that sense, which made their deed effectual.”

We have quoted from the case supra at considerable length, for the reason that we deem it a lucid and able exposition of this vexatious question, albeit his lordship may seem at first blush to have labored under great stress of judicial weather; but, in our opinion, he succeeded in severing’the Gordian knot with which this question has so long been entangled, but in doing so he had to strip it of its subtleties which seemed to hang around about it, and dissipate the clouds that darkened it by reason of conflicting decisions of the courts, the which he did by letting in the sunlight of reason and common sense.

This case has since been followed in the case of Glassington v. Rawlins, 3 East, 407, and other English cases, and this doctrine is also upheld in the courts of this country, both federal and state. Vide Arnold v. U. S., 9 Cranch, 119 ; Griffith v. Bogart, 18 How.158 ; Sheets v. Selden’s Lessee, 2 Wall. 117; Dutcher v. Wright, 94 U. S. 553; Price v. Whitman, 8 Cal. 412; Lysle v. Williams, 15 Serg. & R. 135; Wright v. Forrestal, 65 Wis. 340, 21 N. W. Rep. 52.

We do not claim that there is a uniformity of decisions of the courts of this country in regard to this question, but we admit that there is somewhat of conflict; but, from a thorough examination of them, we arrive at the following conclusion: That there is no absolute or well-settled rule of computation, but that courts will always adopt that construction which will uphold and enforce, rather than destroy, bona fide transactions and titles, and whenever it is necessary to prevent a forfeiture, or to effectuate the clear intention of the parties, the dies a quo will be included, otherwise they will be excluded.

We think that the word “from,” in its literal and restricted sense, means “exclusive,” but it may be used in a connection that means inclusive, and it is quite frequently used in the latter sense; and therefore in construing it courts will take into consideration the context and subject-matter, and construe it to mean either inclusive or exclusive, accordingly as it is influenced by its connection.

Applying the doctrine of the case of Pugh v. Duke of Leeds, and other eases cited supra, to the case at bar, it seems to us that we are compelled to include the day of the date of the patent to said West, and as a matter of course decide that the 15th day of June, 1885, the day on which he conveyed the land to appellant Young, was not within the period of limitation of the statute, and therefore the deed to said Young of that date was valid.

We might properly arrive at this conclusion by treating the Indian as a minor, and applying the law of this territory in regard to minors, and hold that the disability ceased the day before the fifth anniversary of the date of the patent; but we think that the following conclusion is clearer and irresistible. It was clearly the intention of the statute under which said West obtained the patent to the lands that he should be deprived of the power to alienate it for the period of five years from the date thereof; hence, if we exclude the day of its date in the computation of the time during which he was to be deprived of this power, we place it within his power to defeat the object of the law. Suppose the patent had been issued and delivered to him at 10 o’clock a. m. of the day of its date, what was there to prevent him from alienating the land between that hour and the hour of midnight of that day, or at any time previous to the beginning of the next day, if the terminus a quo be excluded ? in which event we would have an anomalous, incongruous, not to say absurd, statute, containing within itself seeds the germination of which might defeat its object at the very threshold of its existence; for it is absolutely certain that West could have legally conveyed the land at any time after the issuance of the patent during the day of its date, unless said day be included in the computation of the five years during which the disability or limitation was in existence.

It seems to us that this proposition is so clear and axiomatic that it is unnecessary to elaborate or discuss it at length.

We'therefore conclude that the day of the date of said patent should be included, and that the deed to Young for the entire 160 acres of land is a good and valid conveyance, and the judgment of the district court is reversed, and judgment ordered to be entered below in accordance with this opinion, and as prayed for in the •.separate answer and counter-claim of appellant Timothy Young.

All the justices concurring.