Henry Billings Brown

“ There were other circumstances in this case which doubtless had their influence in determining the court not to permit this complaint to be filed. The Gales had been in adverse possession of the land for nearly 12 years under a claim of title, and, according to the facts found by the court, had broken and cultivated about 20 acres. Hodgdon had received his deed 18 months after the deed to Gale, and Smith had received his deed from Hodgdon in 1874, nearly 8 years before this suit was begun by Gale to quiet his title. ”

“ The allegations, however, were broad enough to admit the instruments without further proof of their execution or delivery, subject to any attack which the defendant might choose to make upon the manner in which they had been procured, and the use which had been made of them. It is true that when a general denial is pleaded in connection with a special defense of new matter, or two inconsistent defenses are set up, the admissions in the one cannot be used to destroy the effect of the other. ”

“ These instruments, however, under the curative act of 1873, were perfect upon their face, the certificate of the secretary of state being mere surplusage, and that of the notary being accompanied by his official seal. Now, while section 5 of this act makes the records of instruments heretofore made evidence, notwithstanding the want of a certificate of authorization, it ought not to be held that the original instrument, which is perfect upon its face, is made inadmissible by the fact that the record of such instrument has omitted the official seal of the notary. ”

“ These provisions of the Dakota Code above cited are found in the Codes of several of the states, and appear to have been originally adopted from Louisiana, wherein it is held by the supreme court, interpreting a similar section, that the interest which entitles a party to intervene must be a direct interest, by which the intervening party is to obtain immediate gain or suffer loss by the judgment which may be rendered between the original parties. ”

“ This complaint set forth, in substance, the issue of the patent to the complainant in 1864, and the conveyance to Hodgdon, May 29, 1872, and averred that Hodgdon had no knowledge or notice that any person was then in possession of the lands; denied that any person was in possession thereof; further alleged the execution of the deed from Hodgdon to Smith of June 20, 1874; and averred that plaintiff had falsely claimed that he or his wife were possession of the and, and that by reason thereof the deeds to Hodgdon and Smith were void. ”

“ Error is alleged in the refusal of the court to permit Margaret Frazier to file an intervening complaint, and be joined with defendant Smith as a necessary party to the complete determination of the controversy. By section 89 of the Dakota Code of Civil Procedure, respecting parties to civil actions, 'the court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ”