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
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
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
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.
Page 144 U. S. 517
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case was tried in the court of original jurisdiction
without a jury upon the amended and supplemental answers of Byron
M. Smith and the replies thereto of Gale, Griggsby, and McKennan,
and was appealed to the supreme court of the territory and thence
to this Court upon exceptions of the defendant Smith to certain
proceedings upon said trial.
1. Error is alleged in the refusal of the court to permit
Margaret Frazier to file an intervening complaint and be joined
with defendant Smith as a necessary party to the complete
determination of the controversy. By sec. 89 of the Dakota Code of
Civil Procedure, respecting parties to civil actions,
"the court may determine any controversy between the parties
before it when it can be done without prejudice to the rights of
others or by saving their rights, but when
a complete
determination of the controversy cannot be had without the
presence of other parties, the court must cause them to be brought
in."
And by sec. 90:
"Any person may, before the trial, intervene in any action or
proceeding who has an interest in the matter in litigation, in the
success of either party, or an interest against both. An
intervention takes place when a third person is permitted to become
a party to an action or proceedings between other persons, either
by joining the plaintiff in claiming what is sought by the
complaint or by uniting with the defendant in resisting the claims
of the plaintiff or by demanding any thing adversely to both the
plaintiff and the defendant, and is made by complaint setting forth
the grounds upon which the intervention rests, filed
by leave
of the court,"
etc. This complaint set forth, in substance, the issue of the
patent to the complainant in 1864, and the conveyance to Hodgdon,
May 29, 1872, and averred that Hodgdon had no knowledge or notice
that any person was then in possession of the lands; denied that
any person was in possession thereof; further alleged the execution
of the deed from Hodgdon to Smith of June 20, 1874, and averred
that plaintiff had falsely claimed that he or his wife were
possession of the and, and that by reason thereof the deeds
Page 144 U. S. 518
to Hodgdon and Smith were void. And
"this complainant avers that in case said Smith does not now
have the legal title to said land, that the legal title to the
whole thereof is now in this complainant, and that she now holds
the same for the use and benefit of said Smith, his heirs and
assigns, and for no one else."
These provisions of the Dakota Code above cited are found in the
codes of several of the states, and appear to have been originally
adopted from Louisiana, wherein it is held by the supreme court,
interpreting a similar section, that the interest which entitles a
party to intervene must be a direct interest by which the
intervening party is to obtain immediate gain or suffer loss by the
judgment which may be rendered between the original parties.
Gasquet v. Johnson, 1 La. 431. In
Horn v. Volcano
Water Co., 13 Cal. 62, the Supreme Court of California had
occasion to construe a similar provision of the Code of that state,
and held, speaking through MR. JUSTICE FIELD, now a member of this
Court, that
"the interest mentioned in the statute which entitles a person
to intervene in a suit between other parties must be in the matter
in litigation, and of such a direct and immediate character that
the intervener will either gain or lose by the direct legal
operation and effect of the judgment. . . . To authorize an
intervention, therefore, the interest must be that created by a
claim to or lien upon the property, or some part thereof, in suit,
or a claim to or lien upon the property, or some part thereof,
which is the subject of litigation."
In
Lewis v. Harwood, 28 Minn. 428, the cases from
Louisiana and California were cited with approval. In that case,
the persons who sought to intervene held attachments upon some
property subsequent to those of the plaintiff in the suit. The suit
was upon certain promissory notes executed to the plaintiff by the
defendants, and the interveners claimed that the notes were without
consideration and fraudulent, that the plaintiff's attachments were
fraudulent, and that the suit and attachments were in execution of
a collusive scheme between the plaintiff and defendant to defraud
the interveners, who were
bona fide creditors of the
defendant. It was held that the complaint of the interveners did
not disclose
Page 144 U. S. 519
such an interest in the subject matter of the suit as to entitle
them to intervene, and that the plaintiff's motion to dismiss the
same should be granted. The decision was put upon the ground that
when the judgment was entered against the defendants, the whole
subject matter of the suit was disposed of, and that the writ of
attachment was a part of the remedy, and had nothing to do with the
cause of action.
"If property is seized by virtue of the writ to which another
has a better right, the vindication of such right involves another
and independent judicial inquiry."
The intervention must be not only to protect the direct and
immediate interest of the intervener in a suit, but she is bound to
make that interest appear by proper allegations in her petition.
Coffee v. Greenfield, 62 Cal. 602. In this case, the
petition not only fails to show any title in the intervener, and no
beneficial claim to or lien upon the property in suit, but it shows
conclusively that such interest as she once had has been conveyed
away to Hodgdon, and that the only actual interest she could
possibly have in the result of the litigation was the contingency
of being held upon the covenants of warranty in the deed to
Hodgdon. This, however, is not the direct and immediate interest
which, under the construction given to this statute by the courts
of Louisiana, California, and Minnesota -- a construction which we
do not hesitate to adopt -- is necessary in order to entitle a
person to intervene. Her liability to Smith would depend upon the
scope of her covenants, and could properly be determined in a
separate action. But it is needless to consider her claim further,
since she has not appealed from the decision of the court denying
her right to intervene, and the appeal of Smith brings up that
question only so far as the ruling of the court was injurious to
his interests.
Appellant's (Smith's) argument in this connection is that under
section 681 of the Dakota Civil Code,
"every grant of real property other than one made by the
territory or under a judicial sale is void if at the time of the
delivery thereof, such real property is in the actual possession of
a person claiming under a title adverse to that of the
grantor;"
that as the
Page 144 U. S. 520
Gales were in adverse possession of this land under a claim of
title when the deed to Hodgdon was delivered, such deed, under the
provisions of this section, was void and conveyed no title to
Hodgdon, nor did Hodgdon's deed to himself, and hence that he did
not stand in a position to resist the claim of Gale, and that his
rights could only be determined in a suit to which Margaret Frazier
was a party, since she was in a position to claim that the deed to
Mrs. Gale was void by reason of her fraudulent connivance with
Grant. For these reasons, he claims that the title to these lands
is, as against the Gales, still in Margaret Frazier, and that if
she succeeded in showing that her deed to the Gales was void by
reason of fraud, her title would inure to his use and benefit under
the deed to Hodgdon and that from Hodgdon to himself. In this
connection, he calls the attention of the court to a number of
cases holding that a deed of land held in adverse possession is
good as against the grantor and his heirs, and against strangers,
though void as against the party in possession, and that, it being
void as against the latter, an action would lie against him in the
name of the grantor notwithstanding such deed, but not in the name
of the grantee. A recovery therein, however, will inure to the
benefit of the grantee.
Hamilton v. Wright, 37 N.Y. 502;
Hasbrouck v. Bunce, 62 N.Y. 475, 482;
Chamberlain v.
Taylor, 92 N.Y. 348;
Farnum v. Peterson, 111 Mass.
148, 151,
McMahan v. Bowe, 114 Mass. 140.
There is great plausibility in this position, and we are not
disposed to hold that the court might not have permitted this
complaint in intervention to be filed. But by section 90 of the
Code, above cited, such complaint must be filed by leave of the
court, a limitation upon the right to intervene which presupposes a
certain amount of discretion in the court. Such right ought to be
claimed within a reasonable time, and may be properly refused in a
case like the present one, where the action had been pending two
years, and was about to be tried.
Hocker v. Kelley, 14
Cal. 164.
There were other circumstances in this case which doubtless had
their influence in determining the court not to permit this
complaint to be filed. The Gales had been in adverse
Page 144 U. S. 521
possession of the land for nearly twelve years under a claim of
title, and, according to the facts found by the court, had broken
and cultivated about twenty acres. Hodgdon had received his deed
eighteen months after the deed to Gale, and Smith had received his
deed from Hodgdon in 1874, nearly eight years before this suit was
begun by Gale to quiet his title. although these parties were
chargeable with notice of the fact that the Gales were in open and
notorious possession of this land, yet during all this time they
made no movement looking toward an assertion of their own title to
it. While under the cases from New York and Massachusetts above
cited they might not have been able to institute a suit in their
own names against Gale, they might have instituted an action
against him in the name of their grantor, Frazier, and a recovery
thereunder would have inured to their benefit. Instead of that,
they lay by for eighteen months after the suit was begun, and then,
upon the eve of the trial, after Smith had filed an original, an
amended, and a supplemental answer, he asked that Frazier be
permitted to intervene and set up her title as against Gale. Under
this state of facts the court might not unreasonably hold that the
application came too late, and that if Smith desired to assert any
rights in the name of Frazier, he should take the initiative and
file a bill in her name to annul the deed to Gale upon the ground
of fraud.
2. Several assignments of error relate to the ruling of the
court admitting in evidence the power of attorney from Frazier to
Grant and the deed executed in pursuance of such power. These
instruments were executed in Minnesota, were acknowledged before a
notary public of Ramsey County in that state, who certified to the
same under his official seal, and to this acknowledgment was
appended a certificate of the secretary of State of Minnesota to
the effect that the notary taking the acknowledgment had been duly
appointed and qualified, etc., that full faith and credit were due
to his official acts, and that his signature was genuine, and the
instrument executed and acknowledged in accordance with the laws of
the state. Indorsed upon these instruments was the certificate of
the register of deeds of Minnehaha County, Dakota,
Page 144 U. S. 522
that they had been filed for record in August, 1871. Objection
was made to the admission of these conveyances upon the ground
that, having been executed without the state, the certificate of
the officer taking the acknowledgment ought to have been
"accompanied by a certificate under the name and official seal
of the clerk, register, recorder, or prothonotary of the county in
which such officer resides, . . . specifying that such officer was
at the time of taking the proof or acknowledgment duly
authorized,"
etc., as required by section 528 of the Civil Code of 1865-66.
Under this statute, the certificate of the Secretary of State was
insufficient and immaterial.
In January, 1873, after these instruments were executed, an act
was passed by the Legislature of Dakota providing
"that the proof or acknowledgment of any deed, mortgage, or
other instrument may be made either within or without this
territory, and within the United States, before any public officer
having an official seal, including notaries public,"
etc.
"SEC. 2. Whenever the proof or acknowledgment of any deed,
mortgage, or other instrument is certified by a public officer
having an official seal,
under his hand and seal, it shall
be a sufficient authentication of such instrument to entitle it to
record,"
etc. By section 5:
"All
records of instruments
heretofore made in
any of the counties of the territory, the acknowledgment and
certificate of which instruments are taken and certified by the
officers and in the manner herein provided, shall, from and after
the taking effect of this act, have the same force and effect as
though such certificates of acknowledgment were accompanied by the
additional certificates heretofore required by law."
This curative act did away with the necessity of any certificate
additional to that of the notary public, provided the latter
certified to the acknowledgment under his hand and seal. The
certificates upon the original instruments were attested by an
official seal. It seems, however, that in putting these instruments
upon record in the register's office in the County of Minnehaha,
the scrivener omitted to make a similitude on the record of the
notarial seal, or a scroll or symbol to indicate
Page 144 U. S. 523
it, and the defendant introduced the record books in which these
instruments had been recorded to show this fact. It was claimed at
this point that the deeds did not prove themselves, as they had not
been duly recorded. By section 493 of the Dakota Code of Civil
Procedure, it is enacted that "every instrument in writing, which
is acknowledged or proved, and
duly recorded, is
admissible in evidence without further proof."
These instruments, however, under the curative act of 1873, were
perfect upon their face, the certificate of the Secretary of State
being mere surplusage, and that of the notary being accompanied by
his official seal. Now while section 5 of this act makes the
records of instruments heretofore made evidence
notwithstanding the want of a certificate of authorization, it
ought not to be held that the original instrument, which is perfect
upon its face, is made inadmissible by the fact that the record of
such instrument has omitted the official seal of the notary. The
record of the instrument is really but secondary evidence, although
by statute it is made primary, and it would be sticking in the bark
to hold that the original instrument, having the official seal of
the notary to the acknowledgment, should be defeated by the fact
that in recording such instrument, the seal was accidentally
omitted. The record of such instrument might thereby become
inadmissible as a substitute for the original, but so slight an
omission as this in the record ought not to defeat the original
instrument as evidence.
Starkweather v. Martin, 28 Mich.
472. It would be a singular perversion of the principles of natural
justice if, with a perfect deed before the court and a record which
lacked only a scrawl or other symbol of a seal neither could be
admitted in evidence by reason of the fact that they did not
exactly correspond, or, to speak more accurately, were not exactly
identical, especially when the record could be amended on the spot
by adding the representation of a seal. The court should not permit
such a plain defeat of justice as this would be by an obstinate
adherence to a statutory requirement.
But if there were any doubts regarding the admissibility of
these documents, we think they are resolved by the allegations
Page 144 U. S. 524
of the amended answer of Smith, wherein, after denying in
general terms that Frazier by her warranty deed or in any other way
sold or conveyed to Gale the land in question, he proceeds to
allege that Grant on December 9, 1868, offered to take her scrip
and locate the same upon such of the public lands as he might
select, if she would execute to him a power authorizing him to
convey the same to whomsoever he should elect; that she assented to
this, and thereupon he presented her a power of attorney in
writing, bearing the above date, which he had himself drawn up,
representing to her that he would only use it to sell the lands
located by the scrip; that thereupon she executed the same, and
that subsequently the Gales, knowing all these facts, fraudulently
procured Grant on the 12th day of October, 1870, to execute and
deliver to Louisa E. Gale a deed of the lands in question, and that
Frazier never received any consideration for the same. Taking all
these allegations together, they constitute a clear admission that
a power of attorney and deed corresponding in description to those
offered in evidence were executed upon the days these respectively
bear date, but that the same were made use of for the fraudulent
purpose of conveying other lands than those intended by Frazier
when she executed the power of attorney. The allegations, however,
were broad enough to admit the instruments without further proof of
their execution or delivery, subject to any attack which the
defendant might choose to make upon the manner in which they had
been procured, and the use which had been made of them. It is true
that when a general denial is pleaded in connection with a special
defense of new matter, or two inconsistent defenses are set up, the
admissions in the one cannot be used to destroy the effect of the
other.
Glenn v. Sumner, 132 U. S. 152,
132 U. S. 157.
In this case, however, there are no inconsistent defenses; the
general denial itself is qualified by a denial of each and every
allegation of the complaint "not expressly admitted;" the defense
is, in reality, a single one -- namely that Frazier did not sell or
convey to Gale the land in question, although she did execute a
power of attorney, on its face authorizing Grant to convey
according to its terms, and that he did, in pursuance
Page 144 U. S. 525
of such power, assume to execute and deliver to Mrs. Gale a deed
of this property. The admission of the actual execution and
delivery of these instruments, as they appear upon their face, is
as clear and distinct as the denial of their legal effect.
Cook
v. Barr, 44 N.Y. 156;
Shafter v. Richards, 14 Cal.
125;
Philadelphia &c. Railroad
v. Howard, 13 How. 307;
Hartwell v. Page,
14 Wis. 49;
Derby v. Gallup, 5 Minn. 119;
Barnum v.
Kennedy, 21 Kan. 181.
(3) The thirteenth and fourteenth assignments of error relate to
the sufficiency and notoriety of Mrs. Gale's possession to charge
Hodgdon and Smith with notice of her claim to the land in case the
record of her deed was not of itself sufficient notice.
In this connection, the court below found as a fact that on or
about the 15th day of June, 1817, the said Louisa E. Gale took
actual possession of such real property;
"that among other acts of possession and ownership, she then
caused said real property to be surveyed, and the boundaries
thereof to be marked by mounds and stakes; she caused to be broken
and cultivated a portion thereof along the north side, consisting
of about ten acres; that subsequently, during year 1874, she caused
to be broken and cultivated about ten acres more of said land, and
that, continuously from and after the spring of 1871 to the time of
her decease and devise to this plaintiff, Artemas Gale, she
continued to openly use, occupy, and possess said real property,
and that such possession and occupation was actual, open,
continuous, and uninterrupted, and that such occupation and
possession of said premises has been continuous by her devisee,
said Artemas Gale, and his grantees, the said Helen G. McKennan and
the said Melvin Griggsby,"
etc. This finding of possession is, under the case of
Mining
Co. v. Taylor, 100 U. S. 37, the
finding of an ultimate fact, and has the same legal effect as the
finding of a jury in a special verdict, and the sufficiency of the
evidence to support the finding cannot be considered upon this
appeal.
Idaho &c. Land Co. v. Bradbury, 132 U.
S. 509,
132 U. S.
514.
While their actual occupancy and cultivation of the property did
not apparently extend to the entire tract, we think it
Page 144 U. S. 526
was sufficient, under the case of
Ellicott
v. Pearl, 10 Pet. 412, to give the Gales a
constructive possession of the whole tract, the remainder not being
in the adverse possession of anybody. In that case it was held that
where there has been an entry on land under color of title by deed,
the possession is deemed to extend to the bounds of that deed,
although the actual settlement and improvements are on a small
parcel only of the tract. In such case, where there is no adverse
possession, the law construes the entry to be coextensive with the
grant to the party, upon the ground that it is his clear intention
to assert such possession. So also,
Ewing v.
Burnet, 11 Pet. 41,
36 U. S. 52;
Brobst v.
Brock, 10 Wall. 519,
77 U. S. 532;
Hunnicutt v. Peyton, 102 U. S. 333.
We think there is nothing in section 46 of the Dakota Code of
Civil Procedure which, fairly construed, conflicts with this view.
Certainly if there were any doubt in this matter, the finding of
possession by the court below would be sufficient to turn the scale
in the plaintiff's favor.
(4) There is also an assignment of error to the finding that
Helen G. McKennan and her grantee, Griggsby, were innocent
purchasers without notice of the pendency of the action. The
defendant Smith, by his supplemental answer, alleged that they were
not purchasers in good faith, nor for a valuable consideration, and
that they purchased with notice. To this McKennan and Griggsby made
denial.
In order to charge purchasers of property with notice of the
pendency of a suit, it is necessary under the statutes of Dakota to
file a
lis pendens with the register of deeds of the
county in which the land is situated, containing the names of the
parties, the object of the action, and a description of the
property. There appears to have been no
lis pendens filed
in this case, and hence no constructive notice of the suit. As the
court finds that Mrs. McKennan was an innocent purchaser of the
property for a valuable consideration, and had no notice or
knowledge of the pendency of the action or of the ground upon which
defendant Smith claimed an interest in the property, and as there
is no evidence to contradict this, we know of no reason why she or
Griggsby should not be held
Page 144 U. S. 527
to have acquired a good title to the property, although
purchased during the pendency of this litigation,\ and although the
title which Mrs. Gale acquired might have been impeachable for
fraud. It is true that Mrs. McKennan was a sister of Gale, living
in Rochester, N.Y., and bought the property while on a visit to her
brother; but she swears that she paid $8,000 for it, and there is
nothing above the dignity of a suspicion to contradict her.
Several other errors in the action of the court below are set up
in the assignment, but they are either immaterial or have been
already disposed of in the assignments passed upon.
The judgment of the court below will therefore be
Affirmed, and the mandate will issue to the Supreme Court of
South Dakota.