
    HEFLEBOWER, Appellant, v. WILEY et al., Respondents.
    (138 N. W. 370.)
    1. Quieting Title — Pleading—Denial of Notice of Deed.
    In an action to quiet title, plaintiffs evidence showed title in plaintiff;and the allegations oi; complaint that defendant, who set up title in himself under deed from the 'common grantor, took his deed and gave grantor a pretended mortgage for purchase money with notice and- knowledge of plaintiff’s prior deed, were not denied hy the answer; defendant’s deed having •been first recorded. Held, the trial court erred in sustaining a motion on said evidence and pleadings, for judgment in favor of defendant; that the denial in the answer that defendant’s deed and mortgage were without consideration, and the denial “that plaintiff now is or ever did have any title, interest, or claim of any kind whatsoever” in the land, and “no claim upon, demand, title -or interest therein at this date,” did not constitute a denial of plaintiff’s said allegations of notice, etc.
    2. Trial — Finding Contrary to Pleading — Evidence on Appeal.
    A finding in an action to q.uiet title that defendant took a ■conveyance of realty without notice of a previous deed hy same grantor, is erroneous, where defendant’s answer admitted, hy failure to deny, plaintiff’s allegation that defendant took such 'conveyance with notice; and the point that such finding must, in absence of a bill of exceptions containing evidence, be taken as true, is not tenable.
    3. Record on Appeal — Assignment of Errors — Original Record Examined.
    Respondent contended that no proper statement of facts and no assignment of errors appears in appellant’s brief; but, held, following Atlas Lumber Co. v. Quirk, 28 S. D. 643, 135 N. W. 172, that as such brief was filed prior to publication of decision in case of State v. Doran, 28 S. D. 486, 134 N. W. 53, this court will in view of the chaotic state of our statute law as to what such statement should contain, resort to original record, which contains a complete record on those heads.
    (Opinion filed October 25, 1912.)
    Appeal from Circuit Court, Sully County. Hon. J. H. Bot- • Tum, Judge.,
    
      Action by Frank Heflebower against Harrison D. Wiley and another, to quiet title. From a judgment for defendant establishing title in him, plaintiff -appeals.
    Reversed.
    
      Prank Tivrner, for Appellant.
    At the close of plaintiff’s testimony the defendants moved for findings and judgment in their favor. This motion was -sustained. Transcrip-t, 33 and 34. Judgment was accordingly entered for defendants, and -the plaintiff appeals. This ruling o-f the learned trial court is assigned as error, Transcript 47.
    The plaintiff’s testimony consists of proof of the chain '-of title to the land in controversy from the United States' government to plaintiff. Transcript, 31-2 and 3.
    The defendant, Charles R. Wiley, claims title to the land in controversy by virtue of a deed from said Harrison D. Wiley to him, Charles R. Wiley.
    The deed to defendant,_Oharles R. Wiley was rec-o-rded prior to the plaintiff’s -deed, but the -complaint at paragraph 6 (Tr. 4-5), specifically alleges' that the deed from Harrison D. Wiley to the defendant Charles R. Wiley was taken with full knowledge and notice of the deed from Harrison D. Wiley to plaintiff.
    This allegation of the complaint is not- denied by the answer, Tr. 6 and 7,- and therefore stands admitted, under the express provision of - Sec. I45 of the Revised Code of Civil procedure.
    So it plainly appears that when plaintiff proved his chain of title to himself and introduced in evidence his deed from Harrison D. Wiley to himself, he made a prima facie case.
    The deed from Harrison D. Wiley to plaintiff antedates the deed from said Harrison D. Wiley to Charles R. Wiley.
    The answer admits the allegation of the complaint that at the time Charles R. Wiley took his deed he had full knowledge and notice of -the prior deed from Harrison D. Wiley to plaintiff, Tr. 6 and 7.
    Charles R. Wiley having taken his deed subsequent to the time of the execution and delivery of plaintiff’s' deed, and with full knowledge and notice of the deed to- plaintiff, (such knowledge and notice -being expressly alleged in the complaint, paragraph 6, Tr. 4 and' <í, anti"tins’ allegation not‘ being ’denied by 'the answer, Tr. 6 and 7.) his, Charles R., jWiley/s,' title ;.is; not goo'jd as against that of plaintiff. .; ;
    The learngcl(itrial court seems, to-)have overlooked ?the, fact that ¡by the complaint and answer it .stqot;! admittedon. ,the record, that. defendant, Charles, R..,]Wiley,,had .full knowledge and notice ofj.thp. deejdpto plapjitiff. - , ,
    J. H. Gropengeiser, and Sutherland & Payne, for Respondents.
    ;There vis'-no''assignmen6! of 'error ’made ’byr áppéllañt. - We submit -that appellant has not presented'toThis :Goürt a case for reVidiv':' He has"iii6t presented any‘'Bill“'of'Exceptions or Statement of the Casé’‘nor any ruling of the lower‘court, and there’is no Assignment of Error for review. The evidence’ taken at the tff’ál' is ’hot 'before' the Court and in its abséíice it will'he presumed that the lótyér c'oifrt1 found SUfflcienl;' evidence '±6 sustain the findings and" the' judgment’. While there is no general denial contained in''the1 anfeivéf, the'lafiguage of ‘Paragraph TV thereof,' we think, is "equivalent ’ tó a‘ general d'enial'Cas b‘7 ’ its1 language, its substantially denies that plaintiff has any claim, demand, title or interest in-said '.property:’ ■ 1 -‘ -I •'■ v■ ;
    Under' thé recording act every conveyance of real property *' *'■ *' is'vóid as'ágainst 'any subsequent purchaser of the same property, or any part thereof, in good faith and for a.valuable consideration, whose-- conveyance is first " duly recorded. Civil Code; page 734,- Sec. 986. ■ ■
    Under the'recording laws,-a- subsequent 'purchaser -’from the same grantor, whose prior deed is unrecorded, is presumed to be a bona fide purchaser and the burden of proof -to- show bad faith or want o’f consideration is- upon :the party -alleging it. Ryder v. Rush, ro2 Ill. 338.
    The taking of ' a deed with knowledge of a prior conveyance to another person, unrecorded, is deemed a fraud upon him and this will not be presumed but .must be shown' by the party seeking to avail himself of it. Bush v. Golden, 17 C-bnn. 594.
    Proof that a. subsequent purchaser' had actual notice of pri’01-línreeorded deed -must be clear and positive so’ as to leave no- reasonable doubt that' the taking of 'the' second conveyance ’ was án act of bad faith -toward., the first purchaser. Rogers v., Wiley, 56 Am. 4.91, 14 Jll. 65. . •. . . . ,
    . The burden .of proof in such, a,easeyis ppion, the plaintiff. Poliak v. Davidson, 6 So.-312,¡87 Ala-., 551DaCrOsse .Boot &,Shoe Manufacturing- Co. v. Mons -Anderson Co.-, '13-S: D; '3'oi,- a-t' 306, 308. ' ■' • ; ‘ '
    The case last cited above' is also- found- in S. D. 560, where the samé rule of law 'ifas laid down. ’ -
    Fraud will" never be -presumed. Heyrock’v. Sureras,' ty N: D. á8,' 8x‘-N. W.’ 36; DaCfosse Boot1' '& Shoe Manufacturing ’ Co. v. Mons' Anderson Có., 9 S. D. 560; 13’S.' D. 301.' ' '
    The question 'of pleading now raised by appellant that ■ there is no general denial of the allegations in the complaint and that it stands admitted, that the said defendant Charles R.' Wiley took his deed with ■ knowledge that a deed" had been : previously - executed to appellant- covering the -s-ameJ property,'- is hot'well taken. There is no such admission. I-t is'true there'is :nos formal general denial -but the whole- answer' in effect -is a' genérál- denial of the facts alleged , in the complaint as against plaintiff's: claim-s of title. Furthermore appellant has not presented' any -pleading to sustain his statements. -Paragraph three of:the answer denies that said-deed'-to -Charles Rr Wiley whs Without consideration of' that same was executed as alleged by plaintiff: And'paragraph’ four of the answer1'excludes any ' interest-'whatever in said ' premises by the said plaintiff and appellant, and we believe that -the language in paragraph four of the answer is broad enough :to put the plaintiff upon proof of the allegations' of the complaint. Language could hardly be broader in denying plaintiff’s,-claim-to 'said property. While -the language is more cr less informal the denial is such that plaintiff could not have any title o-r 'interest in said property if the denial be taken as true, and in -the face1 of s-uch a denial the plaintiff would have no right to' predicate any - knowledge of a previously executed deed if such - existed in' f-avo-r of the plaintiff. • , , - ...
   CORSON, J.

This is an. appeal by the plaintiff:from a judgment in favor of'the defendant Charles R. Wiléy.' The'case was tried to -the court without a jury, and at the close of the plaintiff's evidence a motion was made by the defendant Chas. R. Wiley for a judgment in ‘his favor, which motion was granted, and the granting of this motion is now assigned as error.

The action was commenced to quiet .title to 80 acres of land in Sully county, and to cancel of record a certain deed executed to the defendant Chas. R. Wiley and mortgage executed by him. The complaint, after alleging a chain of title from the United States government to one Harrison D. Wiley, alleges as follows:

“[4] That on the 27th day of December, 1907, the defendant Harrison D. Wiley (using his initials only, H. D.) for a full, valuable consideration, made, executed, acknowledged, and delivered to plaintiff herein his certain warranty deed, whereby he conveyed and transferred to this plaintiff” the land in question:
“[5] That, notwithstanding the deed described and referred to in paragraph 4 of this complaint, the said Harrison' D. Wiley did on or about September 7, 1908, execute to the defendant Charles R. Wiley a pretended warranty deed, whereby he, the said Harrison D. Wiley, attempted and pretended 'to convey and transfer to said Charles R. Wiley” the land in question, “and that said pretended deed was on or about September 15, 1908, recorded in the office of the register of deeds at page ,544, and that on the same' day, and as a part of the same transaction, the said Charles R. Wiley executed back to said Harrison D. Wiley a pretended mortgage on the land described in this paragraph, pretending to secure the sum of $800, which said .mortgage -was on September 15, 1908, recorded in the office of the register of deeds of said Sully county, in book 28 of Mortgages, at page 94.
“[6] This plaintiff specifically alleges that the said pretended deed and the said pretended mortgage described and referred to in paragraph 5 were wholly without consideration, and that the said pretended deed and the said pretended mortgage were made and taken by all parties thereto with full knowledge and notice of the deed from the said Harrison D. Wiley to this plaintiff, described and referred to in paragraph 4 hereof.
“[7] That the said pretended deed and the said pretended mortgage referred to and described .in paragraph 5 hereof aré ■) cloud upon plaintiff’s title to said land.”

Then follows a praper that title be quited in the plaintiff, and “that the pretended deed and pretended mortgage” be by judgment of the court “annulled, canceled, and forever .set aside.” The answer admits the chain_ of title from the United States to Harrison D. Wiley, and that Harrison D. Wiley conveyed the real property in controversy to defendant -Cahrles R. Wiley, and took a mortgage on the same for $800 in payment. It -then “specifically denies that said warranty deed was delivered to said Charles R; Wiley, defendant, without consideration, and that said note and mortgage were made, executed, and delivered to the defendant Harrison D. Wiley without consideration as alleged in paragraph 6 of said complaint. “Answering paragraph 7 of said complaint, defendants deny that plaintiff now 'has or ever did have any title, interest, or'claim of any kind whatsoever in said hereinbefore described premises, and alleges that plaintiff has no claim upon, demand, title, or interest therein at this date.”

The case being called for. trial, the plaintiff introduced copies of the records of Sully county showing the title -in Harrison- D. Wiley on January 30, 1907. Plaintiff then introduced, over the objections of the defendants, a purported deed of the premises from H. D. Wiley to the plaintiff, bearing 'date of December 27, 1907, and, recorded October 28, 1910. N-o other evidence was offered by the plaintiff except a lis pendens filed with the register of deeds of Sully county giving notice of the commencement of the action, and its nature. The defendant Charles R. Wiley thereupon moved for a judgment in his favor upon the ground that the common grantor, Harrison D. Wiley, executed a warranty deed of said premises to the defendant Charles R. Wiley, which deed was duly'recorded September 15, 1908, the presumption being that the deed previously recorded would take precedence over all unrecorded instruments. The court took the matter under advisement, and later granted -the motion and made findings of fact and entered a judgment in favor of the defendant Charles R. Wiley. The question -before this court to decide, therefore, is whether or not plaintiff had made out a case by the evidence introduced, read in connection with the pleadings.

It is contended by the plaintiff that the. defendant did not deny generally.or specifically “knowledge or notice” by- him of the prior deed to the plaintiff at the time the second deed -was executed to him, and.hence -.it was unnecessary-.for the plaintiff to prove the allegations of the complaint that the defendant had such knowledge, and notice of the existence of the prior deed, and that by the introduction-of.,the records above referred to1 he established 'his. right, to a, judgment in his favor. .The defendant, however, contends that, although there was no specie or .general denial of the allegations of the sixth paragraph, alleging that he .took the second deed with knowledge or notice, the whole answer was, in effect, a general denial, of the facts alleged in the complaint, and that the first part of the answer above quoted is broad, enough to put the plaintiff upon proof of the allegations of the complaint. The learned circuit court evidently adopted this theory in granting defendant’s motion for judgment in his.favor. But in our opinion the court clearly erred in taking the view of the answer that it denied the allegations contained in the sixth.paragraph of the complaint; alleging that he (defendant) took said deed with notice and knowledge of the plaintiff’s prior deed, and in granting the defendant’s motion. In the view we take of the case, the plaintiff is right in his contention that the allegation of notice and knowledge on the part of the defendant was not denied by the answer, and, under the pleadings and evidence at the time the plaintiff rested, he was clearly entitled to findings and judgment in his favor, as he had shown a complete title in himself. The contention of the defendant that the last paragraph of the answer in which the defendant denies “that plaintiff now is or ever did have any title, interest, or claim of any kind whatsoever in said hereinbefore described premises, and alleges that plaintiff has no claim upon, demand, title or interest therein at this date,” is a general denial of the portion of the complaint above referred to, is, in our opinion, untenable.

It is contended by the defendant that as the court made the following finding: “That the said Charles R. Wiley took the conveyance of said property in good faith and for a valuable consideration and without notice of any previous conveyance of said property or any part thereof” — and the evidence is not before the court by bill of exceptions, such finding must be taken as true. But, if the holding of this court is .correct that the plaintiff’s allegations that defendant took his subsequent deed with full knowledge and notice of plaintiff’s prior deed was not specifically or generally denied by. defendant’s answer, the court’s finding was not only not warranted bjr the pleadings, but clearly in contravention not only warranted by the pleadings, but clearly in coqjtrayention of the same, and therefore the finding was clearly erroneous1 and cannot be sustained. The trial court is not warranted in making a finding in-contravention to the-admission in. the answer, actual or implied, by not being denied, and hence this "finding must !-be disregarded by this court.

The judgment of -the circuit ‘court, therefore," must necessarily be reversed, unless the respondent's further conten-' tion be sustained;, i. e., that the record does not properly present the question to-this court-,for the reason.-that there is no proper assignment of erro'rs, and 'no sufficient statement of facts upon ’which the appellant relies for a reversal. But' we cannot agreé with counsel for the'respondent in this'contention. The brief''in'this case on the part of the ap'pellant was filed January 24, 1912, prior to the publication, of the decision of this court in the case of State v. Doran, 134 N. W. 53, and .hence under the decision in the case of Atlas Lumber Co. v. Quirk, 135 N. W. 172, this court will resort to the original record. • In the latter case the court in its opinion said: “Respondent has raised -the question that the statement of fact contained in appellant’s brief is not sufficient to point out or establish error, in that the findings and pleading's are not made a part of such statement. Under the- ruling of this court in State v. Doran, 134 N. W. 53, appellant’s statement of facts-was insufficient in some respects, hut as the decision of State v. Doran ha dnot been rendered at the time of the filing of appellant’s brief, and in consideration of the chaotic state of our statute law upon the subject of what such statement should contain, we have resorted to the original record in this case.” Upon an examination of -the record in this case, it appears that the “specification of errors” is very full and complete, and states very specifi - cally the errors upon which the appellant will rely for a reversal of the judgment.

Dor the error of the court in granting defendant’s motion and in making -the foregoing finding of fact, the judgment of the circuit court is reversed.  