
    WESTERN TOWN LOT COMPANY, Respondent, v. PETTIGREW, et al., Appellants.
    (168 N. W. 30.)
    (File No. 4253.
    Opinion filed June 11, 1918.)
    IV Real Property — Quieting Title — Title by Possession — Twenty Year Limitation — Finding, Sufficiency of Evidence.
    In a suit by a town lot company to quiet title to realty; evidence held to overwhelmingly sustain a finding that plaintiff, upon receiving a deed for the property in question March 26, 1884, entered into and for more than 20 years thereafter continued' in actual, open and exclusive .possession, claiming in good faith to be the owner thereof.
    2. Conveyancing — Declaration of Trust, Title and; Control in Trustee Until Property Sold. — Assignment and Release by Beneficiary to Trastee, Effect re Conveyance, Sufficiency of Evidi’ence — Description, Sufficiency of Through Reference to Records. ■
    In a suit by a town lot company to- quiet title to realty, it appearing that plaintiff executed a declaration of trust relating to the -property, to the effect that it held title to an undivided portion thereof in trust for the use and benefit of defendant, his heirs and assigns, but that it was understood and agreed between the parties that title should remain in plaintiff until the property was disposed of and sold by it, with absolute control and right to deal with it in all respects as if owned by plaintiff, in selling and disposing thereof for price and upon terms deemed reasonable by it; on the back of which instrument was another executed 'by defendant, reciting that in consideration of a sum named and paid him by plaintiff, he thereby sold, transferred and assigned to •plaintiff all his right, title and interest in “the within contract and the premises therein described” including any moneys paid or due or to become due ou account of any outstanding contracts for sale of any lots included therein, whether made by plaintiff or by third parties named as trustees, with a release and discharge of plaintiff from performance of the obligations contained in “the within contract;” held, that a finding by trial court to the effect that defendant on the date of said transfer and release, executed and delivered to plaintiff, “a deed of conveyance in writing whereby * * * defendant sold, transferred, and assigned” to plaintiff all his right, title and interest in and to said premises, is fully sustained by the evidence; that the so-called assignment executed by defendant, while not drawn with the formality of a deed, was in legal effect a deed of conveyance of all his interest therein; that a description of the land conveyed was capable of being made certain by reference to noted hook and page or records in registers office!, and although the instrument was not entitled to record, it was a sufficient conveyance as between the parties.
    S. Real Property — Title by Prescription — Continuous Payment of Taxes — Tax Receipt to Tax Commissioner, Effect.
    Where, in a suit to quiet title, trial court found that plaintiff continued in actual, open, notorious and exclusive possession of the premises, claiming, etc., and for more than 25 years continuous next prior to suit paid all taxes assessed thereon before delinquent and while plaintiff was in possession, etc., claiming in good faith under color of title to he owner, held, that evidence that plaintiff paid taxes thereon for the years 1901 to 1914 inclusive brought the case within provisions of Code Civ. Proc., Sec. 54, relating to title by continuous possession and payment of taxes; that the fact that tax receipts for several of said years were made out to one C. who was plaintiff’s tax commissioner, did not show a break in continuity of payments by plaintiff, the latter having actually made the payments for those years; that said finding was, sustained by the evidence.
    Appeal from Circuit Court, McCook County. Hon. Joseph W-. Jones, Judge.
    Action, by Western Town Lot Company, against Richard F. Pettigrew and others, to' quiet title, toi realty. From a judgment for plaintiff, andi from an order denying a new trial,' defendants appeal.
    Affirmed.
    
      P. W. Scanlon, and Clarence S. Darrow, for Appellants.
    
      A. K. Gardner, and E. PL Wilson, for Respondent.
    (2) To point two of the opinion, Respondent cited1, re sufficiency of description: Ford v. Ford, 24 S- D: 644; Tillson v. Floromian, 22 'S. D. 324.
    • (3) To point three of the opinion, Respondent -cited: C. ,C. P. R. Secs. 45, 54-5; Murphy v. Defoe, 18 S. D. 42; Murphy v. Rede'ker, . 16 S. D. 615.
   GATES, J.

The defendant Pettigrew located andi platted the town slite of Salem, D. T. He bought the land upon the understanding that lue was to have a one-fifth interest and Elias E. Drake and Amherst H. Wilder, trustees, four-fifths. He claims that the property amlbraiced 160 acres south of the track of what is now known as the Chicago, St. Paul, Minneapolis & Omaha Railway Company, and only 120 acres north of -the track. The plaintiff contends that the understanding embraced. 160 acres north of the track. The dispute relates to the S. W. J4 of the N. R %. of Sec. 14, Tp. 103, R. 55, 'situate in McCook county. The property now1 in .controversy is that part of outlet B of the felwin iplat of Salem, lying in said 40-acre tract, containing 'approximately 37 aicresi, to' 'wit: That part of the said 40-acre tract lying west of the right of way and depot grounds of the former Dakota iCentral Railway 'Company, now the Chicago & Northwestern Railway Company. At the time of the 'beginning of this action, the records in the office of the register of deeds of McCook county did not show that Pettigrew had ever conveyed the undivided four-fifths: of said outlet, ‘although 'such records do show that he bad' conveyed the remaining 'lands to Drake and Wilder, trustees, by deeds dated .September 22, 1880, and June 9, 1881. At those times the title to the 40-acre tract was in the United States government. Final receipt therefor was issued August 13, 1881, and patent November 10, 1882. The entrymian conveyed to Pettigrew October 5, 1882, and on May 24, 1883, Pettigrew conveyed to Drake and Wilder, trustees, the undivided one-fifth, of said 40-acre tract. A deed from’ Drake and Wilder, trustees, to (plaintiff, dated March 26, 1884, and recorded in the office of the register of deeds- of McClook county on September 3, 1884, in Book H of Deeds', on pages 288, 289, and 290, included all oif salid 40-acre tract -except the land-- embraced in the right of way of the Dakota Central Railway. On October 25, 1884, .an agreement -was entered into 'by Pettigrew and itihie plaintiff whereby it -was -declared! among -other things thiat:

“The Western Town Lot Company does hereby- publish, make known-, and declare that -it holds the title to an -equal undivided oneffifth (1-5) -of the lots and- 'lands embraced in and immediately surrounding the town of .Salean, conveyed to it by the said Drake and Wilder, trustees', by deed of March 26, 1884, recorded in the -office of the register of 'deed® in and .for McCook county, Dakota, in Book H -of Deeds, on pages tiwo- hundred' and eighty-eight (288), two hundred and. eighty-nine (289), two hundred and ninety (290), in trust for the use and benefit of the said' R. F. Pettigrew, his heirs, and assignsbut it is. understood and agreed! between the said Pettigrew and1 said -company •that the title to the said, lots and lands shall remain vested in the Western Town Lot 'Company until disposed of and1 soldi by it; that the said company shall have the absolute control of the said property- and may 'deal with it i-n all respects, as if if were the sole and absolute owner thereof, and may se'll and dispose of the whole or any .part thereof for such price and upon such terms as it may deem- reasonable- 'arad proper.”

On the'back of said instrument there was. the following (the italics are ours) :

“For and in consideration -of the sum. of $430 i-n hand paid by the Western Town Lot Company, the receipt of which is hereby .acknowledged', I hereby sell, transfer, and assign to said Western Town Lot Company all my right, title, and interest in and to the within contract and the premises therein described, including 'any moneys paid or dhe or to 'become -due, on account of any -outstanding -contracts for sale oif any lots, in the town of Salem, Dakota, whether made by said company or by Drake and Wilder, trustees. Amid I do -hereby release and discharge said -company from the performance of any -and' all obligations in ■ the' within contract contained. Sioux Falls, D. T., January 15, 1886. R. F. Pettigrew.”'

Judgment was. entered! decreeing the plaintiff to .be the owner of outiot B, and excluding' delfendiants from airy right, title, or interest -therein. From the judgment arudi an order denying a neiwi triad, thie defendants appeal.

The correctnes of the facts recited in. the briefs being mutually contested!, we have resorted! to the original record. It appears- without dispute that from January; 1886; to November, 1913, when 'he entered! upon arid took possession of the' premises in- the night-time, defendant Pettigrew manifested no claim of any right, title, or interest in filie property in any manner whatsoever;' except that shortly previous t-b such entry he refused to ' execute a conveyance to plaintiff at its solicitation. By it®’ sfecomidl finding of fact the trial' court found that Drake' and Wilder, trustees, -conveyed the property to plaintiff by deed dated March 26, 1884, which is- ’itihe deed' hereinbefore referred to, and)— '■ ■’

“thereupon tine said! Western Town Lot Company,' plaintiff herein, entered linitd the possession of said property and for more than 20 yeárs thereafter, and until on or about the 22d day Of November, 1915, continued in the actual, open, and exclusive possesion thereof,' claiming in good faith <to be the Owner thereof.” ' ' '

This finidinig is_ sustained by the ’overwhelming evidence. A discussion of it would serve riioi useful purpose.’ By finding 3 the court found;

“That on or about the 15th day of January, 1886, the defendant Richard F. ’Pettigrew] finder and!' by the name of R. F. Pettigrew, ’ for ■ a valuable- consideration to- him .paid- by the Western Town Dot Company, the plaintiff herein, duly executed and delivered! 'to said Western Tolw'n Let Company,' his deed of conveyance .in writing, whereby the -said - defendant. sold, transferred,' and -asáigned- to-- the - plaintiff herein all. his right, title, and! interest in- -‘and to- the premises hereinafter described, together ■ with' other .property,” - ■' ■ ' ' . . . ;

This finding is" fully ' sustained by flic evidence-. The só-éáilled asS-igriirn’ient' executed’by defendant '-Pettigrew ón- JámiA ary 15, 1886, above set-forth, white hot 'drawn- -with the formality of a deed, was-, in legal' -effect, -a deed of conveyance of all inis interest ini the tract in iqiuesltion. A -description of the land conveyed was- capable of being made -certain by reference to the noted book and page of the records in the register of deeds’ office of -McOook 'county, .and 'although the -instrument was- not entitled! to record- it was a sufficient conveyance oif the. premises as between, the parties. Ford v. Ford, 24 S. D. 644, 124 N. W. 1108.

Tibe court alisoi found as a part of said third finding:

“And 'thereafter the said Western Town Lot Company, the plaintiff herein, -continued in the actual, open, notorious, and exclusive possession o'f said premises, claiming in good faith to be the o-wmer thereof, and.for mlo-re than- 25>years continuously next prior to the time of the commencement of this action, the said plaintiff bias' paid, all taxes assessed! against said premises before the same became delinquent, and while said) .plaintiff was so in possession- of said- ,property, claiming ini good faith under color of title to be the owner thereof.”.

The evidence -shows that plaintiff .paid the taxes- on said premises for the year 1884; for the years: 1886 to. 1899, both inclusive, andi for the years 1901 te» 1915, both inclusive. • No payment was •s'htelwn for the year 1900.. Conceding for -the purpose of this case that the payments for the years p-ri-o-r to 1900 may not be considered because- payments prior thereto- for -i,o consecutive jears subsequent to the passage of -chapter 24, Laws. 1891, were not shown, yet the payments for the years- 1901 to 1914, inclusive (the payment for 1915 not being considered) because roadie at a- time when defendants -were in1 p-o-ssession), 'bring the case within the provisions of section 54, C. C. P. To avoid the effect of these payments, appel-tents -contend that the fact that ¡the tax - -receipts for the years: 1906, 1908-, and 1911 were made out to Frank P. Crandon instead of to plaintiff show a break in the continuity 'of payments by plaintiff. The- receipts for 15- of the j’e&rs, 'beginning with 1889 and ending’ with 19-12: were made' out in the ■ name of F. - P. -Crandon: 'for -the 'plaintiff; cr’-in the name of the-plaintiff-by F.-P. 'Crandon. The • evidence alsoshowed "that 'the plaintiff, actually tnadie the ¡payments for the years 1906, 1908, aod 1911. We think it conclusively appears that plaintiff paid the taxes .for the years 1901 -to 1914, inclusive, and therefore that this portion of the findings shlould ba sustained for those years-.

All -other matters argued in the briefs have been considered, but are not deemed)' of sufficient importance to require a reference thereto. The judlgment and order -appealed from are affirmed-. The -application of appellants for a modification of the terms imposed upon granting th-emi leave to amend their brief -is denied, and the order to show cause issued- March 23, 1918, is quashed.  