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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
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
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
Since the defect in the complaint Per Curiam: is one which is amendable, we For the reasons given in the forerecommend that the judgment be going opinion, the judgment ap
reversed, and the pealed from is reversed, and the Pleading-defect -curing by cause remanded to cause is remanded to the trial court, amendment.
the trial court, for for further proceedings not inconfurther proceedings not inconsist- sistent with the views expressed in ent with the views herein expressed. the foregoing opinion.
Right of action to restore lost deed.
It is generally held that in order to obtain restoration or re-execution of a deed which has been lost or destroyed, the petitioner's title, right, or interest, present or future, in land or other property, or evidence in respect thereto, must be affected by the loss or destruction of the deed.
United States. – Virginia & W. V. Coal Co. v. Charles (1917) 251 Fed. 83, affirmed in (1918) 165 C. C. A. 599, 254 Fed. 379; Midkiff v. Colton (1918) 164 C. C. A. 344, 252 Fed. 420, reversing (1917) 155 C. C. A. 149, 242 Fed. 373, certiorari denied in (1918) 248 U. S. 563, 63 L. ed. 423, 39 Sup. Ct. Rep. 8.
Alabama, Owen v. Paul (1849) 16 Ala. 130; Torrent Fire Engine Co. v. Mobile (1893) 101 Ala. 559, 14 So. 557. See also Hudspeth v. Thomason (1871) 46 Ala. 470.
California. Cummings v. Coe (1858) 10 Cal. 529; Conlin v. Ryan (1873) 47 Cal. 71; Shores v. Withers (1913) 166 Cal. 403, 137 Pac. 7.
Florida. Griffin v. Fries (1887) 23 Fla. 173, 11 Am. St. Rep. 351, 2 So. 266.
Georgia. Orr v. Dunn (1916) 145 Ga. 137, 88 S. E. 669.
Illinois.--Hudson v. Hudson (1919) 287 Ill. 296, 122 N. E. 497.
Indiana.--Hoddy v. Hoard (1851) 2 Ind. 474, 54 Am. Dec. 456.
Iowa. See Lash v. Butch (1856) 4 Iowa, 215.
Kentucky.-Blight v. Banks (1827) 6 T. B. Mon. 192, 17 Am. Dec. 136; Louisville & N. R. Co. v. Letcher County Coal & Improv. Co. (1922) 195 Ky. 297, 243 S. W. 45.
Maine. Lancy v. Randlett (1888) 80 Me. 169, 6 Am. St. Rep. 69, 13 Atl. 686.
Maryland. See Shugars v. Shugars (1907) 105 Md. 336, 66 Atl. 273.
Minnesota.--Towle v. Sherer (1897) 70 Minn, 312, 73 N. W. 180.
Missouri. Bohart v. Chamberlain (1889) 99 Mo. 622, 13 S. W. 85; Haworth v. Haworth (1906) 123 Mo. App. 303, 100 S. W. 531; Morris v. Parry (1908) 218 Mo. 701, 118 S. W. 430.
Montana. Jacobson v. Roman (1920) 57 Mont. 299, 188 Pac. 138. See also the reported case (NICHOLSON v. NICHOLSON, ante, 548).
Nevada. - Low v. Staples (1866) 2 Nev. 209.
New Hampshire. See Lawrence v. Lawrence (1860) 42 N. H. 112.
New York. Kent v. Church of St. Michael (1892) 136 N. Y. 10, 18 L.R.A. 331, 32 Am. St. Rep. 693, 32 N. E. 704; Dull v. Rohr (1895) 13 Misc. 530, 35 N. Y. Supp. 523.
North Carolina. See McCormick v. Jernigan (1892) 110 N. C. 406, 14 S. E: 971.
Tennessee. Hord v. Baugh (1847) 7 Humph. 576, 46 Am. Dec. 91; Anderson v. Akard (1885) 15 Lea, 182; King v. Pillow (1891) 90 Tenn. 287, 16 S. W. 469.
Virginia. Wade v. Greenwood (1843) 2 Rob. 474, 40 Am. Dec. 759. See also Steinman v. Clinchfield Coal Corp. (1917) 121 Va. 611, 93 S. E. 684; James v. McGuire (1922) 132 Va. 251, 111 S. E. 136, and Chapman v. Chapman (1799) 4 Call, 430.
West Virginia. Poling v. Poling (1906) 61 W. Va. 78, 55 S. E. 993;
Cartright v. Cartright (1912) 70 W. deed upon which his title depends, lost Va. 507, 74 S. E. 655, Ann. Cas. 1914A, or destroyed by an adverse claimant, 578.
to the end that he may, by preserving Application of rale-loss of deed as af.
and recording, protect himself against fecting title.
a bona fide purchaser for value, and In Midkiff v. Colton (1918) 164 C.
that he may be able to show a good, C. A. 344, 252 Fed. 420, reversing
marketable title. The right to invoke (1917) 155 C. C. A. 149, 242 Fed. 373, the protection of the court of equity certiorari denied in (1918) 248 U. S.
under such circumstances is estab563, 63 L. ed. 423, 39 Sup. Ct. Rep.
lished by authority from which there 8, in supporting a decree establishing is no dissent." a lost deed, it was said: “The juris
In Owen v. Paul (1849) 16 Ala. 130, diction of the court of equity cannot the complainant, Paul, who sought be doubted. True, there is authority re-execution of a deed to land which for the statement that, where nothing he alleged had been conveyed to him more appears than that a claimant to by the husband and father of the deland wishes to assert title under a lost fendants, asserted that the deed theredeed, equity will not aid him to es- to had been deposited by him with the tablish it, because he may at once
clerk of the county court for regisbring his action of ejectment and tration, and had disappeared, and avail himself of the lost deed by prov
also that the lots had been the subject ing its execution and contents as ef- of several conveyances thereafter. fectually at law as in equity. Whit- It was said: “It is objected to this field v. Fausset (1749) 1 Ves. Sr. 392, bill on the part of the plaintiff in er27 Eng. Reprint, 1100; 1 Story, Eq. ror that the complainant therein does 84. With the correctness of this view
not show a title to the relief which he we are not concerned, for the bill seeks, not being in possession, nor sets out other grounds for equitable entitled to the possession, but the esrelief in alleging that by the Kuhn tate belonging to others.
The comdeed the surface and minerals were plainant is bound by his covenant of severed, that since its execution the warranty to protect and defend the tidefendants have not been in posses- tle of the persons to whom he sold, sion of the minerals, that the died
and, in order effectually to do this, he was left in the custody of the grantees
must have the evidence of his title and accepted by them, that they have which he swears is lost. We think the either inadvertently lost it or fraud- peril to which he is exposed by reason ulently destroyed it, that it has not of the loss of the only evidence of been recorded, and that in contraven- title which he held to the lots in question of it defendants have recently as
tion is sufficient to entitle him to come serted title to the minerals. The into this court for the establishment deed not being recorded, there is dan
of his title. He but invokes the exerger to the complainants of a convey
cise of a very salutary jurisdiction ance by the defendants to a bona fide which the court of equity possesses, of purchaser, without notice of the sever- administering preventive justice." ance of the surface from the minerals The jurisdiction of a court of equity and of the complainants' ownership of to order the re-execution of a deed the minerals, relying on the defend- which has been destroyed exists where ants' occupancy of the surface as con- the loss would create a defect in the ferring title by adverse possession of deraignment of the plaintiff's title and both surface and minerals. More- embarrass the assertion of his rights over, the market value of complain- to the property. See Cummings v. Coe ants' property is affected by their in- (1858) 10 Cal. 529, wherein the reability to show by a record of the execution of a deed was ordered, alKuhn deed that defendants' occupancy though the grantor claimed to have of the surface was not adverse hold repurchased the property at a sheriff's ing of the minerals. Equity will aid sale following a judgment recovered a claimant to land in establishing a against the plaintiff. No deed ap
peared to have been executed to consummate the sheriff's sale, and moreover it was said that the defendant, in the re-execution of the original deed, might recite therein the destruction of the first deed and the object of the re-execution.
In Blight v. Banks (1827) 6 T. B. Mon. (Ky.) 192, 17 Am. Dec. 136, a bill stating, inter alia, the loss of certain unrecorded conveyances, wherefore the title to land remained in jeopardy, prayed that the petitioner's title be made complete as a recorded title. The court said: “Equity will frequently interfere to remove difficulties in land titles, where a party cannot proceed without difficulty at law, when the conveyances are lost, or in the possession of the opposite party, or where the parties are numerous, and the proof hard of access, and in many such cases it will lighten the burden, and settle many controversies and bring them into a small scope. And where the title is purely legal, for such and similar causes, to those we have enumerated, equity has carved out a branch of jurisdiction, and a class of bills, termed in the books ‘ejectment bills, in which not only the title is made clear, but the possession decreed also. No reason is perceived by us why the present case is not within the spirit of these cases. The difficulties in an unrecorded title, especially if it is derived through a long chain of conveyances, are familiar to our courts in this country. The danger to which the title is exposed from two classes of persons, creditors and subsequent purchasers, is often great, and the facilities afforded from a title which can be read in evidence without other proof than the authentication annexed, are felt by everyone who has to bring his title into court for attack or defense, and the present case will furnish a good comment on the propriety of the interference of the chancellor.”
In Louisville & N. R. Co. v. Letcher County Coal & Improv. Co. (1922) 195 Ky. 297, 243 S. W. 45, wherein it appeared that the plaintiffs had executed a deed in favor of the defendants, which was destroyed by fire
while in the latters' possession, the court said: “Just as plaintiffs' right to recover the damages adjudged to them depended upon the sufficiency and validity of the destroyed deed, so defendants' security of title and possession of the premises thereby conveyed, against possible claims thereto by anyone claiming through or under plaintiffs, rests upon the same instrument; and these rights are not fully protected without recordation thereof now impossible. In these circumstances we are of the opinion defendants are entitled to have a deed which they can record. But, as plaintiffs were in no wise responsible for their predicament, they should not have been put to costs or inconvenience thereby; and since defendants did not prepare and tender a new deed in accord with the original, together with the fees necessary for its execution, we do not think they can complain of the refusal of the court to compel its execution by the plaintiffs, and, upon their refusal, by the court commissioner, as was their prayer; but we are of the opinion that they yet should be given the opportunity to secure this relief, if they so desire, by supplementary proceedings, before the action is finally stricken from the docket, since their right to such relief was not established until the validity of the deed was adjudged."
In Towle v. Sherer (1897) 70 Minn. 312, 73 N. W. 180, the court declared that, if title had vested in the plaintiff's intestate by virtue of a conveyance, that was sufficient to support an action to establish a lost deed. And the evidence to establish the former existence of a lost deed was held to be strong and satisfactory.
In Bohart v. Chamberlain (1889) 99 Mo. 622, 13 S. W. 85, a case involving a lost deed of trust, after observing that the facts warranted the finding that such deed had been executed by the defendant and had been lost, the court said: “A court of equity, in case of the loss of an instrument which affects the title or affords a security, will direct a reconveyance to be made.” The court, it was held, might direct a re-execution