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defendant alleged as a defense that on the occasion in question he rented a truck, driver, and team to the plaintiff for the purpose of transporting glass, with the understanding that the plaintiff should assume responsibility for its transportation, and the court stated that in such case the defendant would owe no other duty to the plaintiff than to furnish him a team, truck, and driver reasonably suited for the transportation. The case was, however, disposed of on the ground that the defendant transported the glass as a carrier. Gurfein v. Rickard (1918) 92 Conn. 604, 103 Atl. 1002.

The hiring of a slave implies the warranty of title thereto, and, by reason of the title of the owner of the slave failing upon the passage of the 13th Amendment, the bailee is entitled to a pro tanto abatement of the price promised for the hiring. Mundy v. Robinson (1868) 4 Bush (Ky.) 342. And the bailee would be entitled to his pro tanto abatement should the title fail by reason of an eviction by a superior title. And to the same effect, see Hughes v. Todd (1865) 2 Duv. Ky.) 189, where it is said that the mere hiring implies a contract for indemnity if the hirer shall be evicted or disturbed by any lawful intrusion or eviction under a title paramount, or by lawful authority of the other contracting party.

But the enlistment of the slave in the Federal Army is not the kind of eviction under a paramount title for which the owner impliedly contracted to be responsible to the hirer, and the loss of his services due to such act does not entitle the hirer to any abatement of the price agreed to be paid for, while the contract implies that the hirer giver a stipulated price for the guaranteed title of the owner during the term, there is no implied guaranty of full or useful service for the

entire term, or any portion thereof, and, consequently, the sickness, death, or escape of the slave will be no legal failure of the consideration, and the resulting loss must be born by the hirer, who, by failing to provide for such contingencies, must be presumed to have undertaken the risk, without any abatement of the price which he unconditionally promised to pay the owner. Hughes v. Todd (Ky.) supra,

In Harron, Rickard, & McCone v. Wilson, L. & Co. (1906) 4 Cal. App. 488, 88 Pac. 512, the plaintiffs executed a lease of hoisting machinery to the defendants, under which the defendants took possession of the property, and in an action to recover the rental reserved, none of which the defendants had paid, the defendants, admitting the execution of the instrument and the possession of the property described therein, interposed as a defense that they took possession of the property under a warranty by the plaintiff that the machinery had a certain capacity, which it in fact did not have, and that their agreement to pay was in consideration of the said warranty, and not otherwise, and that, upon ascertaining these facts, they immediately offered to return the machinery to the plaintiff; and it was held that the averment that, “upon ascertaining these facts,” the defendants offered to return the machinery, with no statement as to when such facts were ascertained or the offer was made, made the answer uncertain, and a demurrer for uncertainty in that respect should be sustained, and that a second defense setting up a breach of the warranty did not constitute a defense to the action, since, on the face of the pleading, it did not appear that the two transactions were connected with each other, notwithstanding that the property specified in the defense answered the same description as that specified in the complaint. G. S. G.

ROBERT NICHOLSON, Respt.,

V.
ADALAIDE NICHOLSON, Admrx., etc., of William Nicholson, Deceased,

and
IDA OWENS, formerly Ida Nicholson, Appt.

Montana Supreme Court - June 15, 1923.

(67 Mont. 517, 216 Pac. 328.) Pleading — petition to establish lost deed - sufficiency.

1. A petition to establish a deed lost before recorded must show that the title of the grantee is injured by its absence and therefore is insufficient if it fails to allege that the grantors had title to the property, or that the petitioner has any title or interest in or through it.

[See note on this question beginning on page 552.] Lost instrument action to restore ments to make a complaint correspond nature.

with the proof cannot obtain if the 2. An action to restore a lost in- proof does not establish a cause of strument is in its nature analogous action. to an action to quiet title, and under a prayer for general relief a court Appeal conclusiveness of finding. of equity may enter a decree quieting 5. Findings on conflicting evidence title if the pleading and proof are are binding on appeal. sufficient.

[See 2 R. C. L. 204; 1 R. C. L. Supp. .— restoration of valueless instru- 443; 4 R. C. L. Supp. 92.]

ment.
3. Equity will not adjudicate upon

Pleading-defect -curing by amendthe ownership of valueless papers or

ment. restore them to existence if destroyed. 6. A defect in a petition to restore Pleading - implied amendments a lost deed in failing to show petifailure to prove cause of action.

tioner's interest in the property may 4. The doctrine of implied amend- be cured by amendment.

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APPEAL by defendant Owens from a decree of the District Court for Ravalli County (Self, J.) in favor of plaintiff in an action brought to compel defendants to join in a conveyance of certain premises to plaintiff. Reversed.

The facts are stated in the Commissioner's opinion.

Messrs. Russell, Madeen, & Clarke, 122 Pac. 722; McKay v. McDougal, 19 for appellant:

Mont. 488, 48 Pac. 988; 32 Cyc. 1350; The complaint is insufficient as one 32 C. J. 1328-1330; Hopkins v. Walker, for specific performance.

244 U. S. 486, 61 L. ed. 1270, 37 Sup. Finlen v. Heinze, 28 Mont. 548, 73 Ct. Rep. 711; Northern P. R. Co. v. Pac. 123; Lynn v. Knob Hill Improv. Hauswirth, 49 Mont. 135, 140 Pac. Co. 177 Cal. 56, 169 Pac. 1009; Porter 516. v. Stockdale, 32 Cal. App. 792, 164 It must clearly appear that it was Pac. 33; Colm v. Francis, 30 Cal. App. the intention of the grantor that the 742, 159 Pac. 237; Joyce v. Tomasini, deed should pass title at the time, and 168 Cal. 234, 142 Pac. 67; McRae v. that he should lose all control over Ross, 170 Cal. 74, 148 Pac. 215.

it. A deed for interest in land must The complaint does not state facts take effect upon its execution and desufficient to constitute a cause of ac- livery, or not at all. tion to quiet title or support the judg- Showalter v. Spangle, 93 Wash. 326, ment.

160 Pac. 1042; Hefner v. Sealey, 175 Borgeson v. Tubb, 54 Mont. 557, 172 Cal. 18, 164 Pac. 898; Bruce Pac. 326; Ziska v. Avery, 36 Okla. 405, Mathewson, 97 Kan. 466, 155 Pac. 787;

V.

(67 Alont. 517, 216 Pac. 828.) Hayden v. Collins, 1 Cal. App. 259, cised its right finally to dispose of all 81 Pac. 1120; Melvin v. Melvin, 8 Cal. the issues in the case, and to render App. 684, 97 Pac. 696; Doty v. Barker, a decree in accordance with them. 78 Kan. 636, 97 Pac. 964; Kenney v. Bielenberg V. Eyre, 44 Mont. 397, Parks, 137 Cal. 527, 70 Pac. 556; Curry 120 Pac. 243; Lowry v. Carrier, 55 v. Colburn, 99 Wis. 319, 67 Am. St. Mont. 392, 177 Pac. 756; Barkley v. Rep. 860, 74 N. W. 778; Pierson v. Tieleke, 2 Mont. 435; Foster v. Bender, Fisher, 48 Or. 223, 85 Pac. 621; Foote 28 Mont. 526, 73 Pac. 121; Woolman v. Lichty, 60 Or. 542, 120 Pac. 398; v. Garringer, 2 Mont. 405; Stackpole v. Central Trust Co. v. Stoddard, 4 Cal. Hallahan, 16 Mont. 40, 28 L.R.A. 502, App. 647, 88 Pac. 806; 18 C. J. 198, 40 Pac. 80; Kimpton v. Jubilee Placer § 95.

Min. Co. 16 Mont. 379, 41 Pac. 137, 42 Mr. J. D. Taylor also for appellant. Pac. 102; Love v. Shartzer, 31 Cal. 488:

Messrs. O'Hara, Madeen, & Car- El Campo Light, Ice & Water Co. v. mody, for respondent:

Water & Light Co. Tex. Civ. App. This is not an action for specific per- -, 132 S. W. 868; Kelley Lumber Co. formance, but an action to establish a v. Otelec Valley R. Co. 136 App. Div. lost deed, which can be maintained. 146, 120 N. Y. Supp. 415; Norman v.

Jacobson v. Roman, 57 Mont. 299, Eastburn, 230 Mo. 168, 130 S. W. 276; 188 Pac. 138; Cartright v. Cartright, Jackson v. Jernigan, — Tex. Civ. App. 70 W. Va. 507, 74 S. E. 655, Ann. Cas. 77 S. W. 271; Reynolds v. Ætna 1914A, 578.

L. Ins. Co. 160 N. Y. 635, 55 N. E. 305; All that it is necessary to allege in Indiana Millers' Mut. Ins. Co. y. Peosuch complaint are the title of the ple, 65 Ill. App. 355; Grant v. Creed, plaintiff to the instrument, the de- 54 Okla. 222, 153 Pac. 1110; Tagliascription of the instrument, its loss ferri v. Grande, 16 N. M. 486, 120 Pac. and search, and failure to discover it. 730; Duclos v. Kelley, 197 N. Y. 76, 89 13 Enc. Pl. & Pr. 353;

nlin v.

N. E. 875. Ryan, 47 Cal. 71; Thomas v. McCor

Bennett, C., filed the following mack, 1 N. M. 369; Lloyd v. Simons, 97 Minn, 315, 105 N, W. 902; Brown

opinion: V. Anderson Cottonwood Irrig. Dist.

Plaintiff, Robert Nicholson, com183 Cal. 186, 190 Pac. 797.

menced this action against Adalaide The delivery of a deed to the gran- Nicholson personally, and as admintee, even upon condition, vests the istratrix of the estate of William title absolutely in him.

Nicholson, deceased, and Ida Owens. Mowry v. Heney, 86 Cal. 471, 25 Pac.

The complaint is as follows: 17; Hammond v. McCollough, 159 Cal.

"Plaintiff complains of the de639, 115 Pac. 216; Lewis v. Brown, 22 Cal. App. 38, 133 Pac. 331; Bias v.

fendants and for cause of action Reed, 169 Cal. 33, 145 Pac. 516; Kenney

herein alleges: v. Parks, 137 Cal. 527, 70 Pac. 556;

"I. That William Nicholson died Denis v. Velati, 96 Cal. 223, 31 Pac. 1;

in the county of Ravalli, state of Stone v. Daily, 181 Cal. 571, 185 Pac. Montana, on or about the 13th day 665; Gilbert v. North America F. Ins. of June, 1920; being at the time of Co. 23 Wend. 43; Dyer v. Skadan, 128 his death a resident of said county Mich. 348, 92 Am. St. Rep. 461, 87 and state. N. W. 277; Creveling v. Banta, 138 "II. That thereafter, and on, or Iowa, 47, 115 N. W. 598; Devlin,

about the 22d day of June, 1920, Deeds, $ 314; Rogers v. Rogers, 53

Adalaide Nicholson, widow of said Wis. 36, 40 Am. Rep. 756, 10 N. W. 2; Reed v. Smith, 125 Cal. 491, 58 Pac.

William Nicholson, deceased, ap139; Johnson v. Craig, 37 Okla. 378,

plied for letters of administration 130 Pac. 581; Follmer v. Rohrer, 158

on the estate of said deceased, and Cal. 755, 112 Pac. 544; Baum v. North- that thereupon such proceedings ern P. R. Co. 55 Mont. 219, 175 Pac. were had in the district court of the 872; Cartright v. Cartright, supra;

fourth judicial district of the state Dyer v. Skadam, 128 Mich. 348, 92 Am.

of Montana, in and for Ravalli counSt. Rep. 461, 87 N. W. 277; Flynn v. Flynn, 17 Idaho, 147, 104 Pac. 1030.

ty, that the said Adalaide Nicholson In equity cases, where the decree was appointed the administrator of was not in accordance with the find

said estate, and that the said defendings, the court has frequently exer- ant is now the duly appointed, qualified, and acting administrator laide Nicholson, the wife of said of said estate.

William Nicholson. Ida Owens, for“III. That prior to the death of merly Ida Nicholson, a daughter of the said William Nicholson, and on said deceased, and the plaintiff hereor about the 15th day of November, in, a son, are the sole and only heirs 1919, the said William Nicholson at law of the said William Nicholand Adalaide Nicholson, his wife, son, deceased. made and executed to the plaintiff "Wherefore plaintiff prays for a herein a deed containing general decree of this court ordering the covenants of warranty deed, convey- said Adalaide Nicholson and Ida ing to said plaintiff the following de- Owens, as heirs of said deceased, to scribed real property in Ravalli join in a conveyance of said premcounty, Montana, to wit: The west ises to the plaintiff herein, and for half (W. }) of the southeast quarter such further and other relief as to (S. E. 1), and lots numbered six (6) the court seems meet in the premand seven (7) of section 26; and lot ises." numbered 2, section 35, all in town- After issues were joined, the ship 4 north, of range 21 west, Mon- cause was set down for trial and tana meridian, containing 134.36 tried with a jury in attendance. At acres, more or less.

the close of the testimony, inter"IV. That said deed, executed rogatories were propounded to the and acknowledged by the said Wil- jury. All these were answered in liam Nicholson and Adalaide Nich- plaintiff's favor and were adopted olson, so as to entitle the same to by the court. A decree was entered record, was by the said grantors de- quieting the title to the premises in livered to the plaintiff herein and by plaintiff. From this decree Ida him placed in a receptacle and kept Owens appealed. and not filed for record, and that At all stages of the proceedings thereaiter, without the knowledge appellant urged the objection that and without fault on part of the the complaint failed to state facts plaintiff, the said deed was removed sufficient to constitute a cause of from the place where it had been action. With this contention we are kept by him, and either lost or de- constrained to agree. Respondent, stroyed, and said deed cannot be however, argues that the action was found by the plaintiff after due and one to restore a lost deed, and that, diligent search and inquiry, and the for that purpose, the allegations of plaintiff alleges that he has made the complaint are sufficient. An due and diligent search and inquiry analysis of the purpose of the action and has been unable to find said will disclose the entire absence of deed, or any trace thereof, and jurisdictional facts, either for the therefore alleges that the same has restoration of the instrument, or to been lost without fault on part of quiet the title. In Jacobson v. Rothe plaintiff.

man, 57 Mont. 299, 188 Pac. 138, "V. That the plaintiff did not dis- the late Chief Justice Brantly says: cover the loss of said deed until aft- “It is well settled that, when a deed er the decease of the said William has once been executed and deNicholson. That the said deed was livered, but has been lost or demade, executed, and delivered by stroyed before it is properly recordthe said grantors to the plaintiff, for ed, and the title of the grantee is a valuable consideration, and that thus affected, a court of equity has the plaintiff entered upon the pos- jurisdiction to decree a restoration session of said premises, and is now of it. The right of the owner of in possession of the same, and that real estate to have his evidence of the loss of said instrument before title appear properly upon the recthe same was recorded leaves a ord is a substantial property right break in the chain of title to said which the law recognizes, and a premises.

court of equity will entertain action "VI. That the defendants Ada- by him against his grantor to estab

instrument.

lish lost aleed

prove cause of action.

(67 Mont. 517, 216 Pac. 328.) lish the lost deed when such relief is pleading must disclose some interest necessary to protect his rights in in the property as distinguished this behalf."

from some interest in the instruIn support of this statement a ment or evidence of title. To say number of authorities are cited. It

that courts of equity -restoration of is apparent from the language used could be called upon valueless that it was the intention of the court to adjudicate the

in that instance to ownership of valueless papers and Pleadingpetition to estab- say that one of the to restore them to existence would

jurisdictional facts be intolerable. sufficiency.

in such an action is At this point it should be noted that the "title of the grantee" is in- that the proof is no stronger than jured by the absence of the instru- the complaint. In ment. It must, therefore, appear other words, there

Pleading

implied amendthat the plaintiff has some interest is no deraignment ments-failure to in the property which the absence of title by the eviof the deed affects.

dence. The doctrine There is, in the complaint, as will of implied amendments, therefore, be seen from a casual examination, cannot obtain. an entire absence of allegation It is apparent that the trial court showing any title or interest of the treated the action as one to quiet plaintiff in the premises. If it be title and entered the decree accordsaid that title has been deraigned, ingly. With this position we could still the complaint is insufficient, for agree, if it were not for the fact, it is nowhere alleged that plaintiff's which has been pointed out, that grantors were the owners of or in- neither the pleading nor proof are terested in the premises at the time sufficient to show any interest in of the execution of the deed.

plaintiff in the premises. As to the In its nature an action to restore necessity of such allegations and a lost instrument is analogous to proof in actions to quiet title, see

an action to quiet Boucher v. Barsalou, 25 Mont. 439, Lost instrument

title. And indeed, 65 Pac. 718; Merk v. Bowery Min. store-nature.

under a prayer for Co. 31 Mont. 298, 78 Pac. 519; Polgeneral relief in such an action, we lock Min. & Mill. Co. v. Davenport, are of the opinion that the entry of 31 Mont. 452, 78 Pac. 768, and a decree quieting title is within the Violet v. Martin, 62 Mont. 335, 205 powers of a court of equity, where Pac. 221. the pleading and proof are sufficient. Appellant also takes the position The apparent difference between the that, even admitting the sufficiency action to restore a lost instrument of the complaint, the evidence does and one to quiet title, if there be any not disclose that the deed was ever difference, is that, in the former ac- delivered, and that therefore plaintion, ordinarily, both the title of the tiff is not entitled to any relief. plaintiff and the title of the defend- Since the case must be sent back on ant are deraigned in the complaint, other grounds, we will not go into which must disclose that, notwith- this phase of it further than to say standing an apparent interest of de- that, in our opinion, there was suffendant, in equity and good con- ficient testimony to support the findscience the property belongs to ings on that question. It may be plaintiff; and in the latter action said that there was a conflict in the the complaint need only allege the testimony on that question, but it ultimate fact of plaintiff's interest was for the trial court to resolve and an outstanding claim of inter- that conflict. The

Appeal-conest on the part of the defendant. evidence does not so clusiveness of

finding. In case either the restoration of clearly preponderthe instrument or the quieting of ate against the findings in that rethe title is sought, where the action spect that we can say that in no is based upon a lost instrument, the event can plaintiff recover.

-action to re

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