PRENTICE v. DULUTH STORAGE & FORWARDING CO. et al., 58 F. 437

SA-NBOEN, Circuit Judge, after stating the facts as above, delivered the opinion of the court. That this suit was well and wisely brought admits of no discussion. Owners of lots in severalty in possession under a common source of title may join in a bill of peace to quiet their title and to enjoin the prosecution of an adverse claim repeatedly adjudged invalid in suits in ejectment, the validity of which depends entirely upon the superiority of the title of their common grantor.

The law and the facts which determine the validity of the title of out; such owner also determine the validity of the title of every such owner. While they are owners in severalty, they are united in interest in the sole question at issue in such a case, — the validity of (he title of their common grantor. A suit based upon such a hill is of general equitable cognizance. It prevents a multiplicity of suits, and affords the only adequate remedy for such a multitude of several owners as occupy the heart of a great city when their common source of title is assailed. Osborne v. Railroad Co., 43 Fed.

Rep. 824; Crews v. Burcham, 1 Black, 352, 358. The objection that some of the lots in controversy are not in the possession of any of the complainants, hut are vacant and unoccupied, is without merit. The statutes of Minnesota provide that any person in possession of real property, and any person claiming title to vacant and unoccupied real estate, may alike bring a suit against any person claiming an adverse estate or interest therein, for the purpose of determining such adverse claim, and the rights of the parties respectively. Gen. St. Minn. 1878, c. 75, § 2.

These statutes also provide that whenever two or more persons claim lots or (racts of land in severalty under conveyances from the same grantor as the common source of title, and a claim of title thereto is made by any one as against the title of such grantor, any one claiming under such grantor may bring an action on behalf of himself and all others who may come in and become parties to such action against the person claiming adversely to have the title of such grantor quieted as to the real estate claimed by the complainant and those who become parties to the action; and that any person who claims title under the common grantor, and whose title is controverted by the same defendant upon tlie same ground as that of the complainant, may come in as of course, and become a party in such action, by filing a statement of these facts.

Id. § 4. If a bill of peace by one out of possession to quiet a title that had never been- adjudicated in an action at law to which he was a party could not have been maintained in the federal court before the enactment of these statutes, then they create a right to a valuable remedy which the complainants might avail themselves of in that court.

Rights created by state statutes may be enforced in the federal courts when those statutes prescribe methods of procedure which by their terms are to be pursued in the state courts of original jurisdiction, and there is nothing of a substantive character in the methods prescribed which makes it impossible for the federal courts to substantially follow those methods. Clark v. Smith, 23 Pet. 195, 203; Fitch v. Creighton, 24 How. 159; Stark v. Starrs, 6 Wall. 402, 410; Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. Rep. 495; Railway Co. v. Whitton, 13 Wall. 270, 286; Reynolds v. Bank, 112 H. S. 405, 5 Sup. Ct.

Rep. 213; Ex parte McNiel, 13 Wall. 236, 243. The assignment of error chiefly relied on by the appellant, however, is that the court below decreed that the deed from Armstrong and wife to the defendant, Prentice, describes, and was intended to describe, a defined tract of land no part of which is included in any of the lands described in the pleadings of the complainants .herein, and that it was not operative to affect the title to any of said lands. The treaty iresting in Chief Buffalo the right to select :a

section of land to be conveyed to his appointees was approved January 29,1855. The deed in question from Armstrong and his wife to Prentice was made September 11, 1856, before the government surveys had been made, and it described the property conveyed as the undivided half of a tract of land— “Beginning at a large stone or rock at tlie head of St.

Louis river hay, nearly adjoining Minnesota point; commencing at said rock and nmning east one mile, north one mile, west one mile, south one mile, to the place of beginning, and being the land set off to the Indian chief Buffalo at the Indian treaty of September 30, A.

D. 1854, and was afterwards disposed of by said Buffalo to said Armstrong, and is now recorded with the government documents.” At the time this deed was made there was no tract set off to Buffalo, and no description among the government documents describing this land, other than the treaty and Buffalo’s declaration in these words: “1 hereby select a tract of land one mile square, the exact boundary of which may be defined when the surveys are made, lying on the west shore of St.

Louis bay, Minnesota territory, immediately above and adjoining Minnesota point.” The rock referred to in the deed is identified as a well-known landmark, and it is conceded that the tract described in the deed by metes and bounds does not include any of the lands here in question, but appellant contends — First,- that the effect of this deed was to convey one-half of all the rights Armstrong then had or might thereafter acquire.to any land under the treaty and under Buffalo's appointment; and, second, that if this position is not sustained, the court should find that by mistake fhe first course in the description rends east when it should rend west, and the third .course west when it should read east, and that it should by construction so change these courses and thus reach the land of the appellees.

The first contention rests upon the proposition that a deed should be made operative if possible, and that a. liberal construction should be adopted to effect that object, and to enforce the original design.

It is supported by the facts that Armstrong owned no iutoiest in any other land than that which he was entitled to under this treaty; that about one-third of the square mile described by metes and bounds was covered by the waters of Lake Superior; that he must, have known that the boundary lines of his claim were subject to readjustment; that the deed was not made in view of the lands or upon the marking of any monument, and that the clause of the deed which follows the description by metes and bounds expressly states the land conveyed to be that set off to Chief Buffalo under 1he treaty.

Upon these facts it is forcibly argued that Armstrong must have intended to convey half his right to any land he might, fee or become entitled to under the treaty, wherever situated, and [whenever patented, and not merely the square mile lie bounded. 1 The rules applicable to the construction of deeds have been collected in the briefs of counsel with commendable industry, but, in the view we take of the evidence presented by this record, it will be necessary to apply but two of them to the facts here presented, and these are (1) that the court may place itself in the place of the grantor for the purpose of discovering his intention, and then, in view of all the facts and circumstances surrounding him at the time of the execution of the instrument, consider how the terms of the deed may affect the subject-matter; and (2) that when the intention is manifest it will control in the construction of the deed without regard to technical rules of construction.

Witt v. Railway Co., 38 Minn. 122. 127, 35 N. W. Rep. 862; Driscoll v. Green, 59 N. H. 101; Johnson v. Simpson, 36 N. H. 91; Walsh v. Hill, 38 Cal. 481, 486, 487. We proceed to apply these rules. On September 11, 1850, Armstrong was the sole beneficiary under the reservation of the

section in the treaty for the appointees of Chief Buffalo. He was poor and without influence. Prentice was wealthy.and influential. The tract selected by Chief Buffalo was undefined and undefinable from the memorandum he had made. It was somewhere on the western shore of St. Louis bay, above and immediately adjoining Minnesota point. On this point there was quite a settlement. The mainland rose rapidly for the distance of a mile northwest from the base of the point, and this land wa.s frequently spoken of as above the point. On this land, just above and adjoining the point, George E.

Xettleton and his brother William had cleared the land, and established a trading post. The shore of the bay and of fhe lake extended from the southwest to the northeast, and Minnesota point divided the bay from the hike. About 500 feet southwest of Minnesota point, on the shore of the bay, was the large rock, 40 feet square, referred to in the deed. It was a well-known landmark, an. altar on which the Indians sacrificed to their deity, and at the base of which they landed from their canoes.

Hear the base of the point was the “little portage” where they landed and carried their canoes across Minnesota point when they were traveling from the lake to the bay or from the bay to the lake. The rock, this portage northeast of it, and Minnesota point itself, were undoubtedly familiar objects to Chief Buffalo when he made his memorandum of selection, and it seems probable that the land he intended to describe was a mile square lying along the shore of the bay and across the base of this point, extending back up the hill, and being in that manner immediately adjoining and above the point.

His attempted selection is, however, clearly too indefinite and uncertain to form the basis of any conveyance of specific land, and for that reason the second clause of the description in the deed must be held to be void as an independent or cumulative description, as declared by Mr. Justice Miller in Prentice v. Railroad Co., 43 Fed. Rep. 274. Its only effect was. to make a reference to the title under which the mile- square was claimed, unless- in connection with the first clause in the deed it can be construed to effect a conveyance of one-half of all the rights Armstrong had under the treaty.

We proceed with the consideration of that question. The great rock was universally reputed among the few settlers about Minnesota point to be the southwest corner of the Buffalo tract. Armstrong had repeatedly declared it to be so, and he supposed when he made the deed that the tract described by metes and bounds was the

section selected by Buffalo under the treaty. The southwest corner of this tract was on the St. Louis river bay. It extended across the base of, and immediately adjoined, Minnesota point, and extended up the hill directly above it. But the Hettletons claimed a portion of this section. Litigation with them would probably result from pressing any claim to it, and Armstrong had neither the ability nor the means to conduct it. Under these circumstances he made this deed to Mr.

Prentice of an undivided half of the square mile he claimed, including therein the lands and improvements of the Hettletons, and agreed to build a house upon and live on thia land. He described the land by a natural and well-known landmark and by courses and distances that make it unmistakable. In consideration of this deed Mr.

Prentice agreed to pay the expenses of building the house, to furnish the necessary supplies for Armstrong’s family while they lived on the land, to take charge of the whole tract, to pay all the expenses of the expected litigation with the Hettletons, and do all things proper to perfect the title to this land, and, when it was perfected, to plat it, and assist Armstrong to sell his remaining half. This agreement was written and signed by the parties on the day the deed was executed. It contains the same description as the deed, and was a part of the transaction in which the deed was executed.

When this suit was tried in the court below that court had held in two cases that had been previously tried, in which this contemporaneous contract was not produced, that the description contained in this deed covered only the specific tract of land bounded in it by courses and distances, and that it did not convey one-half of all Armstrong’s rights under the treaty. Prentice v. Stearns, 20 Fed. Rep. 819; Prentice v. Railroad Co., 43 Fed. Rep. 270. In the former case the court found the fact to be that the tract selected by Buffalo extended northeasterly of the rock, and embraced that part of the

section bounded in this deed not covered by water, and that it did not cover any of the lands patented to the relatives of Chief Buffalo, and on that finding its decision was affirmed by the supreme court in Prentice v. Stearns, 113 U. S. 435, 5 Sup. Ct. Rep. 547. In the latter ease it found the fact to be that Buffalo’s selection extended southerly from the rock and covered some of the lands subsequently patented to these relatives, and none of the lands bounded in the deed. It is no longer material to determine whether or not either of these findings was correct.

The production of the contemporaneous contract, in our view, concludes this discussion, and renders the determination of this question unimportant. In its absence the court below and the supreme court construed this deed to convey no right or interest of Armstrong in any other land than that specifically bounded in the first clause of the description. That construction seems to us to be warranted without reference to the contract under the evidence in this case, for the reasons stated in the opinions in the cases referred to.

But an examination of this contemporaneous agreement demonstrates the correctness of that construction. It was not upon a floating right to some unknown land that Armstrong wms to erect his house and live. It was upon this specific tract, one mile square, whose southwest corner was the well-known rock. It was not the title to a right to some land under the treaty somewhere that Prentice was to litigate and perfect, (fox-no one disputed that right,) but it was the title to the specific square mile bounded in the deed and contract that he was to litigate with the Hettletons and establish.

It was not a floating right to some unknown land that he was to plat, but this specific square mile at the base of Minnesota point. If Mr. Prentice had performed his agreement, if he had litigated and jjerfected the title to this land, his deed would have been effective and valuable; and it is plain from the teams of this contract that it was the intention of the parties that it should be valid on that condition, and on that, condition only. He failed to perform it. He did not litigate the title with the Hettletons. He did not perfect the title to the land.

He abandoned his deed and his contract for 15 years, and Armstrong abandoned the land to the other claimants. The United States so far disregarded the attempted selection of Chief Buffalo that it patented to his appointees, and they received, in satisfaction of the treaty, lands that are not above and immediately adjoining Minnesota point. Armstrong conveyed these lands to third parties, and neither he nor Mr. Prentice seems to have thought of their abandoned deed until 14 years after these patents were issued.

Under these circumstances it is not doubtful that this deed does not describe or convey, and tbat it was never intended to describe .or convey, anything more than the square mile bounded by the first clause of the description.

In regard to the second position urged upon us by the appellant, — that the first clause in the description should be so construed that the first course should read east and the third west,— it is sufficient to say that there is no evidence in this case that .either the grantor who dictated this description or the scrivener who wrote it did not respectively dictate and write just what they 'intended.

There is no evidence of any mistake, nor is the grantee, Prentice, who failed to perform the agreement which was the consideration of the deed, in a position to ask a court of equity to correct such a mistake if there was one. The result is that there was no error in the 'decree of the court that the description 'in this deed to Mr.

Prentice, construed in the light of the surrounding circumstances at the time the deed was made, and of the contemporaneous contract made on that day, did not cover or describe any of the lands claimed by the complainants or any right of the grantor, Armstrong, to any other land than the square mile specifically bounded in the first clause of its description. Moreover, if the deed to appellant had contained a sufficient description to convey one-half of Armstrong’s right to the land subsequently patented to the relatives of Buffalo, it could not prevail' over the title of Mr. G-ilman.

At the time this deed and the subsequent deed to Mr. Gilman were executed the statutes of -Minnesota proyided: First. That any deed executed in any other state, territory, or district of the United States “may be executed according to the laws of such state, territory or district.” Rev. St. Minn. 1851, c. 46, § 9; Pub. St. 1858, c. 35, § 9. Second.

That in cases where deeds are executed in any other state, territory, or district, unless the acknowledgment is taken before a commissioner appointed by the governor of the territory for that purpose, such deeds shall have attached thereto a certificate of the clerk or other certifying officer of a court of record “that the deed is executed and acknowledged according to the laws of such state, territory or district.” Id. § 10. Third.

That to entitle any deed to record it must have “a certificate of acknowledgment * * * as provided in this chapter, and in cases where the same is necessary, the certificate required by the tenth

section of this chapter.” Id. § 23. Fourth. That “every conveyance of real estate within this territory hereafter made, which shall not be recorded as provided by law shall be void as against any subsequent purchaser, in good faith, and for a valuable consideration, of the same real estate, or any portiqn thereof, whose conveyance was first duly recorded.” Id. § 24. The deed to the appellant was executed in Wisconsin, and acknowledged before a justice of the peace in that state.

There was attached to it the certificate of the clerk of the county court, but this certificate failed to state that the deed was “executed and acknowledged according to the laws of Wisconsin.” Under the construction given to tliese statutes by the highest judicial tribunal of the state of Minnesota, -which, is a rule of property in that state, and which the federal courts are bound to follow, this deed was not entitled to record, and hence was not, “recorded as provided by law.” Lowry v. Harris, 12 Minn. 255, (Gil. 166.) See, also, Morton v. Smith, 2 Dill. 316, 319; O’Brien v. Gaslin, 20 Neb. 347, 30 N. W.

Rep. 274; Greenwood v. Jenswold, 69 Iowa, 53, 28 N. W. Rep. 433; Ely v. Wilcox, 20 Wis. 551, 556; Fisher v. Vaughn, 75 Wis. 609, 615, 44 N. W. Rep. 831, 833. Mr. Gilman had no actual notice of the record of this deed before he paid for the land, and, as the deed was not entitled to record, the record of it was not constructive notice of its contents, or of anv claim of the appellant under it. Parret v. Shaubhut, 5 Minn. 323, (Gil. 258, 261;) Cogan v. Cook, 22 Minn. 137, 143; Carpenter v. Dexter, 8 Wall. 513, 532, and cases cited.

He was a bona fide purchaser for value without actual notice of this deed or of any claim of Mr. Prentice under it to the lands described in the deed to himself. The record of the Prentice deed was, as we have seen, no notice of that claim. The deed of Mr. Gilman was duly executed and acknowledged, and was duly recorded in 1864. And under the provisions of

section 24, supra, the decid to Mr. Prentice, even if it had described this property, would have been void as against Mr. Gilman, as a subsequent purchaser in good faith and for a valuable consideration, whose; conveyance was first duly recorded. In reaching- this conclusion we have not overlooked the fact that .in 1864, and until the course of decision was changed by statute; in 1875, it was the settled rule in Minnesota that one claiming title* by a quitclaim deed in the form in common use in that state could not to he regarded as a bona fide purcllaser without notice. Martin v.

Brown, 4 Minn. 282, (Gil. 201;) Hope v. Stone, 10 Minn. 141, (Gil. 114;) Everest v. Ferris, 16 Minn. 26, (Gil. 14;) Marshall v. Roberts, 18 Minn. 405, (Gil. 365.) The same rule* prevailed in the supreme court for many years, but lias lately been abolished by that court, and declared to rest upon no sound reason. Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. Rep. 426; U. S. v. California, etc., Land Co., 148 U. S. 31, 41, 13 Sup. Ct. Rep. 458.

The rule which prevailed in Minnesota in 1864 must, however, govern in this case; if it is fairly applicable; hut, in view of the fact that it has Since been abrogated by the state and by the nation, it ought not to he applied to cases not clearly within it. When tins rule; was established the statutes of Minnesota provided that “a deed of quitclaim and release, in the form in common use, shall he sufficient to pass all the estate which the grantor could lawfully convey by deed of bargain and sale.” Pub. St. Minn. 1858, c. 35, § 3.

The deed of quitclaim and release in the form in common use was a conveyance of all the grantor’s “right, title, and interest” in the land described in the deed. It was not a conveyance, quitclaim, or release of 1he land itself. An examination of the Minnesota cast's that establish this rule discloses the fact that all the deeds under consideration in those cases were, of this form.

The argument upon which the rule was first established was: The deed to the subsequent purchaser does not purport to convey the land, but only the interest the grantor has in the land, and “when, therefore, a person relies on a mere quitclaim of the interest' which á party may have in property, he does so at his peril, and must see to it that there is an iufcerest to convey. He is presumed to know what he is purchasing, and takes his own risk.” Chief Justice Emmett in Martin v. Brown, 4 Minn. 282, (Gil. 201.) In Marshall v.

Roberts, 18 Minn. 409, (Gil. 365,) where the subsequent purchaser under such a deed sought to take advantage of that provision of the recording act which declares a prior unrecorded deed void as against any subsequent bona fide purchaser for value of the same real estate who first records his deed, the court said: “It is only the purchaser of the same real estate, or any portion thereof, who hy his priority of record cuts out the title of a prior purchaser; for when the second purchaser obtains by his quitclaim deed only what his grantor had (his grantor’s right, title, and interest) at the time when such deed was made, he is not a purchaser of the same real' estate (or any part thereof) which his grantor had previously conveyed away, and therefore no longer has.” The deed to Mr.

Gilman is not a quitclaim deed of the form in common use in Minnesota. It is not a conveyance of the “right, title, and interest” of the grantor, but a conveyance of the land itself. The purchaser under such a deed is a purchaser of the same real estate previously conveyed by his grantor by the same description. The supreme court of Minnesota has never applied this rule to a purchaser under such a deed. The reasoning on which that rule rests has, in our opinion, no application to it, and we are constrained to hold that Mr.

Gilman and his grantees are entitled to the benefit of the registry statute under this deed. We have carefully examined the assignments of error relative to the admission of the evidence, and think there was no error in this regard in the rulings of the court below. These assignments are unimportant, aajd do not require a more extended notice. The decree below is affirmed, with costs.